Allegations of Negligence: Dismissal of Patient Concerns By a Locum Tenens

Originally published by our sister publication Anesthesiology News

NEW YORK—Topping the list of the Emergency Care Research Institute’s “Top Ten Patient Safety Concerns” in 2025 is the dismissal of patient, family and caregiver concerns. In this edition of our series on anesthesia-related litigation, a patient and her family were not listened to, resulting in unfortunate outcomes that most likely could have been avoided. The case also revealed some of the vulnerabilities of being, or working with, a locum tenens provider.

An anesthesiologist and a malpractice defense attorney discussed the scenario at a session on insights into the legal process and malpractice claims at the 2024 annual PostGraduate Assembly in Anesthesiology.

The Case and Outcomes

The patient was a 72-year-old woman presenting for a spinal fusion at L2-L3. Her past medical history (PMH) included obesity, gastroesophageal reflux disease, hyperlipidemia, depression, and L2-L3 and L4-L5 laminectomy. It also documented difficult intubations and “lock jaw.” The physical exam showed that the patient had a very short jaw, a small mouth and sharp teeth. Her airway was scored as a Mallampati class 3 with visualization of only the base of the uvula and none of the soft palate.

“Part of her past anesthesia record showed difficult intubation requiring multiple attempts,” said Patricia Fogarty Mack, MD, a professor of clinical anesthesiology at Weill Cornell Medical College, in New York City.

This procedure, too, required multiple attempts, but eventually the patient was intubated, under sedation, with an adult-sized endotracheal tube (ETT) and the operation proceeded as planned. But after extubation, in the PACU, the patient became hypoxic and the team noticed diffuse subcutaneous edema. They reintubated the patient and performed a CT scan to investigate for a possible tracheal tear.

“The radiologist noted an abrupt deviation in the tracheal contour at the tip of the ET tube just superior to the aortic arch, and there were mild bilaterial infiltrates consistent with atelectasis or pneumonia,” Mack said. “A bronchoscopy was performed, which did not reveal any tracheal injury. But the patient was transferred to a higher level of care for ENT [ear, nose and throat] services via Medivac.”

The patient did indeed have a tracheal tear; and given its size related to the size of her trachea, ENT decided that she should undergo surgical repair rather than conservative treatment. Postoperatively, the patient developed a surgical site infection, which led to a more complicated recovery than would have been expected.

Allegations and Contributing Factors

The patient brought a lawsuit against the anesthesiologist and facility, alleging improper performance of the anesthesia procedure. Experts who reviewed the case were critical of the care provided; it seemed the anesthesiologist did not review the PMH documenting the patient’s difficult airway. The patient’s family also said the anesthesiologist did not take the patient or her husband seriously when told the patient would require a pediatric ETT.

There were several contributing factors, including credentialing issues, partly due to the anesthesiologist being locum tenens; poor assessment of the patient’s concerns; subpar communication with the patient and her family/failure to listen; and poor technical performance.

“The number-one reason anesthesiologists settle due to allegations of negligence is a credible argument that the technical performance of the skills of anesthesiology—the actual hands-on care being rendered—fell below the standard of care, as in this case,” said Michael Schoppmann, JD, the CEO of MLMIC Insurance Company.

Although claims against the facility were dismissed, the plaintiff continued to pursue the anesthesiologist and medical team. Ultimately, the case was settled on behalf of the anesthesiologist, in the amount of $500,000 with $87,563 paid in expense costs.

What Was Done Right, What Could Have Been Better?

In terms of emergency management, everything was handled well, Mack said. “The PACU nurse noticed the decompensation and everyone did the right thing,” reintubating the patient, and performing CT and bronchoscopy evaluations.

But in retrospect, there were things that could have been done better and that should be, but are not always, standard. For one, past records should have been easily available for review, but this is not always the case. Mack has observed this within her own institution, which switched from one electronic health record system to another in 2020, and that sometimes requires special knowledge to pull up older records.

There were also issues caused by the fact that the anesthesiologist was a locum tenens provider, Schoppmann said. “It’s not necessarily negligent care by the anesthesiologist; it’s the breakdown of the system because they’re not connected well. The number of claims involving locum tenens anesthesiologists has been skyrocketing in the last five years for a number of reasons.”

These reasons include lack of familiarity with the environment, the equipment and the staff, and poor communication between providers—a lack of understanding of the institution’s policies, bylaws and protocols—leading to the potential for violating the institution’s standards.

“It’s critically important if you work as a locum tenens, or bring a locum tenens to your facility, that there is a significant orientation. Take the time to make sure that you or the locum tenens physician are knowledgeable and up to date and familiar with the staff they’ll be working with.”

Another point Schoppmann stressed is knowing your patient’s PMH, because the plaintiff’s attorneys will know it inside and out. “They are brilliant at obtaining every shred of information on a patient’s PMH. They do exhaustive research and will spend days cross-examining you: Did you ask this, did you know this, did you talk about this?”

If you have good rapport with the staff and the facility, the united defense is almost unbreakable, he said. “Eighty-nine percent of the time, you win. When you have cross-allegations, the case often results in a payment. It is important to understand the dynamics of where you work and the relationships later when you’re trying to fight a case or a claim like this.”

By Monica J. Smith

Mack and Schoppmann reported no relevant financial disclosures.

Editor’s note: Neither the anesthesiologist quoted in this article nor NewYork-Presbyterian Hospital/Weill Cornell Medical Center were involved with the case presented here.