Professional Liability? Here’s What You Need to Know

Originally published by our sister publication Anesthesiology News

In an effort to mitigate the risk for litigation, a panel was convened to inform anesthesiologists about strategies to protect themselves against malpractice claims.

“You have to know the specific laws surrounding malpractice and discovery in your state,” said presenter Alan D. Marco, MD, a professor of anesthesiology at Penn State Health, in Hershey, Pa. “You want to be very cautious about saying anything about your actions because what you say may be admissible in a court of law.”

Anesthesiologists have little time to build rapport with patients and as such are frequently the target of lawsuits, according to the American Society of Anesthesiologists’ ADVANCE 2024, the Anesthesiology Business Event session.

Marco explained that in most states, telling a patient you are sorry about an unfortunate outcome is not grounds for a malpractice suit. However, if you give an admission of guilt in your apology, it becomes admissible evidence against you. He advised that whenever there is a case that could potentially lead to a malpractice suit, an anesthesiologist should take the following steps:

• Familiarize yourself with your state’s laws surrounding malpractice and what can be submitted as evidence in court.
• Only discuss doubts about a medical procedure within a formal quality improvement (QI) structure inside your institution; this process is usually shielded from discovery.
• Do not presume that your department chair or chief medical officer is part of the formal QI structure.
• Be very thoughtful about what you say in an incident report and stick to the facts, and do not offer any conjecture as to the cause of a certain outcome.
• When a case comes up in which you have doubts, make notes about it and have your attorney file them. These notes are protected under attorney–client privilege and may be useful in any future court case.

“I think that it’s very dangerous to talk to people outside of QI,” concluded co-presenter Vilma A. Joseph, MD, the site director for anesthesia services at Montefiore Medical Center, in New York City. “If you are facing a lawsuit, you should never talk to your friends about it because everything you tell them is discoverable.” She also warned that if a doctor believes that a hospital’s insurer is going to put the hospital’s interests before their own, it could make sense to retain independent counsel.

By Myles Starr

Joseph and Marco reported no relevant financial disclosures.