Endotracheal Intubation Lawsuits Often Name ED Providers
By Stacey Kusterbeck
If there are complications with endotracheal intubation, devastating injuries (and malpractice litigation) are possible. Jean Daniel Eloy, MD, FASA, and colleagues wanted to know which providers are held liable in these cases. The group analyzed 214 malpractice claims involving endotracheal intubation.1 “We wanted to look at this from a legal standpoint to see: What are the implications of having more than one set of doctors involved in the airway management?” Eloy explains. “Who eventually is found responsible?”
Some key findings: Payments averaged $2.5 million. Intubation injuries occurred in the operating room most often, followed by the ED (16.3% of cases). Most cases involving the ED resulted in some type of payout (either a settlement or a jury award). Anesthesiologists were most likely to be named in the lawsuits (59.8%), and EPs were second most likely (19.2%) to be named. The vast majority of claims (89.2%) alleged permanent deficits, half the cases involved death, and 37.4% of the cases involved anoxic brain injury. “Anesthesiologists are called to the ED on a regular basis to see patients who need an airway managed, but we come in later,” notes Eloy, an associate professor and director of orthopedic anesthesia at Rutgers New Jersey Medical School.
By that time, several ED providers may have tried and failed to manage the airway. That, in itself, can contribute to a bad outcome. “If you try multiple times, you can cause trauma to the airway,” Eloy cautions.
Possibly, the resident tried but could not secure the airway. Then, the attending tried and failed. Finally, the anesthesiologist arrives. “As the anesthesiologist, you came in as a rescuer to help out at that time. But because you are the airway expert, you get named as well in those lawsuits,” Eloy says.
After a poor outcome happens, it is impossible to tell which provider or providers actually caused the damage to the patient’s airway. “Everyone will be named in the lawsuit,” Eloy warns.
Many of the malpractice cases alleged deficits in informed consent. In the ED, it is not always possible for providers to fully explain risks, benefits, and alternatives to the patient in a dire situation. “Most of the time, when you actually have a breathing tube in the patient, the patient has become an emergency. You don’t have the luxury to explain every single thing,” Eloy notes.
Generally, says Eloy, EPs can benefit from a clear informed consent process, with providers explaining specific risks (e.g., the outcomes identified in the researchers’ analysis of malpractice claims), benefits, and alternatives.
“But most of the time, there is no way to get a true informed consent,” says Eloy, adding that by the time the anesthesiologist arrives, there is no opportunity to do so.
About half the malpractice cases were settled out of court. A bad outcome itself does not equate to malpractice, Eloy stresses. In some cases, the injury happened despite meeting the standard of care. “But hospitals don’t always fight the cases, regardless of whether the standard of care was met,” Eloy observes.
Many ED cases involved delay in recognizing a complication. “If the difficult airway is expected, there are not typically issues with those cases,” Eloy says. In Eloy’s experience, it is when the patient was not expected to experience an airway issue that ends up with complications and malpractice litigation. “Most of the time, it is when something happens unexpectedly, and you have to rush to save the patient’s life,” Eloy says.
Ideally, EDs identify the difficult airway right away, and call for backup from the anesthesiologist, ENT doctor, or surgeon just in case the EP needs them to take over. “But sometimes, an airway that we think is easy, is not easy. That [can happen] to anesthesiologists as well,” Eloy adds.
For emergency providers, Eloy says it is important to provide enough training in airway management during residency training. “We need to make sure there is enough time during rotations for ER residents to feel extremely competent in their ability to manage airways, and to recognize a difficult airway and the need for backup,” Eloy says. “This is something they will have to do on a regular basis.”
Melanie Heniff, MD, JD, FACEP, FAAP, says there are common allegations in ED malpractice claims involving endotracheal intubation, including esophageal intubation, delay in intubation, failure to intubate, complications (e.g., aspiration), and failure to recognize esophageal intubation that took place in a prehospital setting.
In any intubated patient, documentation that confirms correct endotracheal tube placement is critical. “It should include multiple methods — exam, oxygen saturation, end-tidal CO2 detection, and direct visualization of the tube,” asserts Heniff, associate professor of clinical emergency medicine at Indiana University School of Medicine in Indianapolis.
Another group of researchers examined how first attempt intubation success rates change by years of training.2 “There is little known about the learning curve for critical procedures, such as intubation,” says Jestin Carlson, MD, one of the study’s authors and national director of medical affairs at US Acute Care Solutions.
Using a national database, Carlson and colleagues examined intubation success rates at 25 emergency medicine training programs. Of 15,204 intubations, success on the first attempt increased with more training for each laryngoscopy device class. For instance, when direct laryngoscope was used, first-attempt success rates were 78.8% for trainees with one year of training, 81.3% for trainees with two years of training, and 83.6% for trainees with three years of training.
Trainees with one year of instruction achieved higher rates of first-attempt success with a standard geometry video laryngoscope than trainees with three years of schooling using a direct laryngoscope. Video laryngoscope outperformed direct laryngoscope for all groups. “These findings suggest that the amount of training required to become proficient in video and direct laryngoscopy differ,” says Carlson.
Training programs may need to account for this during residency training. “These data look at first attempt success as a function of years of training. We still do not know the ideal number of intubations required for competency in emergency medicine,” Carlson notes.
For practicing ED providers, there is no clear consensus on the minimum number of intubations that need to be performed annually or within a certain period for individuals to maintain their skills. “As with other critical skills, regularly training is important to maintain proficiency,” Carlson says.
REFERENCES
1. Eloy JD, Pashkova AA, Amin M, et al. Protecting the airway and the physician: Lessons from 214 cases of endotracheal intubation litigation. Anesthesiol Res Pract 2022;2022:8209644.
2. Garcia SI, Sandefur BJ, Campbell RL, et al. First-attempt intubation success among emergency medicine trainees by laryngoscopic device and training year: A national emergency airway registry study. Ann Emerg Med 2023; Jan 18: S0196-0644(22)01202-1. doi: 10.1016/j.annemergmed.2022.10.019. [Online ahead of print].
After analyzing 214 relevant claims, researchers reported payments averaged $2.5 million. Intubation injuries occurred in the operating room most often, followed by the ED (16.3% of cases). Most cases involving the ED resulted in some type of payout (either a settlement or a jury award). Anesthesiologists were most likely to be named in the lawsuits (59.8%), and EPs were second most likely (19.2%) to be named. The vast majority of claims (89.2%) alleged permanent deficits, half the cases involved death, and 37.4% of the cases involved anoxic brain injury.
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