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Airway management cases involving devastating outcomes are a significant source of liability for EDs. Some common allegations:
Airway management in the ED setting “has been, for decades, an area with high liability,” says Mark Spiro, MD, chief medical officer of the Walnut Creek, CA-based The Mutual Risk Retention Group.
There are several common allegations in these claims:
• ED providers did not act quickly enough. “When a patient is doing poorly, taking a ‘Let’s see what happens over the next hour or two’ approach can have devastating consequences,” Spiro warns.
Plaintiff attorneys may allege that ED nurses failed to monitor the patient adequately, or that ED nurses noted problems with ventilation, such as lower oxygen saturation levels, without alerting the EP. One malpractice case involved a woman who presented to the ED with unstable vital signs and respiratory distress after vaginal delivery. The EP put the patient on biphasic positive airway pressure (BiPAP) for several hours, but the patient continued to decompensate. The EP intubated the patient, but the patient was unable to recover and died.
The plaintiff attorney alleged the EP was looking at a critical patient who needed immediate airway intervention but chose to put the patient on BiPAP instead of definitive airway management, which was needed. “It may or may not have made a difference, ultimately,” Spiro says. “But the lack of immediacy created an obstacle that the doc was not able to overcome.” The EP defendant settled the claim out of court.
• The endotracheal (ET) tube was placed incorrectly. Intubation has improved over the years, with various tools used to confirm placement. “But sometimes in a code situation, those tools are not as effective as you’d like. You have to be sure you are actually in the trachea,” Spiro notes.
• The correct equipment, such as pediatric-sized ET tubes, was not available (or, if it was available, ED providers lacked the ability to use it). These are two issues that potentially can bring the hospital into the claim, Spiro says.
• Someone other than the most qualified person in the ED performed the intubation. In one case, the respiratory therapist thought the tube used to intubate an infant was too small, and the EP was outside the room. The respiratory therapist thought the EP had asked the respiratory therapist to replace the tube, but the EP’s testimony contradicted this.
“In the height of a very critical case, it’s easy at times to misinterpret things,” says Spiro. The hospital policy stated that it was acceptable for respiratory therapists to perform intubation. The respiratory therapist replaced the tube, and the infant ended up with encephalopathy. The EP and hospital were both sued, and both settled out of court. “If the EP had done it, would the outcome have been different? We’ll never know,” Spiro says.
Certain documentation tends to become important in ED airway claims, including the EP’s thought process and a timely assessment of the adequacy of ventilation (not just oxygen saturation, but also blood gas). Also, it is important to document whether the patient was alert and speaking in sentences and whether the EP anticipated the case as a potentially more difficult airway to manage. If so, the EP should note how he or she prepared, either by obtaining additional equipment or asking for assistance from anesthesia.
“As emergency physicians, we don’t have to be perfect. Errors in judgment are not necessarily malpractice. But we have to be able to justify what we did and why we did it,” Spiro says.
Failure to secure the airway prior to transfer, even when specifically requested by the transferring EMS agency, is a common allegation. Darren Braude, MD, has reviewed multiple malpractice claims with this scenario: The sending EP appropriately anticipates airway difficulty but does not appreciate the risk of transport and assumes the patient will be OK all the way to the receiving facility. The flight crew then feels compelled to take matters into their own hands, either while at the sending facility or en route.
“If subsequent complications occur, the plaintiff can allege negligence by both the flight crew and the ED provider,” says Braude, chief of the division of prehospital, austere, and disaster medicine and professor of emergency medicine and anesthesiology at the University of New Mexico Health Sciences Center. This pits the two parties against each other. Braude also has seen cases where no one prepared for the possibility of airway difficulty.
“Common themes include failure to appreciate the impact of patient physiology (hypoxia, hypotension, acidosis) on time for airway management and either a rush to remove an extraglottic device or failure to insert one,” Braude says.
Other factors can complicate the ED defense, including lack of a procedure note, conflicting details between physician and nursing documentation, ED providers’ assumption that anyone can be intubated with video laryngoscopy, and providers blaming one another.
“I have seen cases where providers in one unit suggested to families that providers in another unit had mismanaged the case,” Braude recalls.
In other cases, providers at the receiving hospital made off-hand comments about care at the sending facility, or EMS made such comments to families during interfacility transport. “The immediate presumption by family was that the ED physician or staff had been trying to hide something,” Braude says. “That’s where the seed of the lawsuit began.”
The correct placement of an ET tube, confirmed with an EtCO2 detector, usually is well-documented in ED charts immediately after intubation.
“But from a legal perspective, it’s just as important to make sure it stayed in the right spot,” says Scott DeBoer, RN, MSN, EMT-P, founder of Pedi-Ed-Trics, a Dyer, IN-based pediatric emergency education and consulting firm.
DeBoer has reviewed multiple EMS, transport, and ED malpractice claims alleging negligent airway management as an expert witness. Almost always, the tube was confirmed to be in the trachea initially. The bad outcome happened because at a later point in time, the tube moved from the trachea to the esophagus, which went undetected.
“If you want to stay out of court when it comes to an intubated patient, verify it’s in the right spot not only right after you put in the tube, but also any time something bad happens with your patient or there is a major move,” DeBoer offers.
This does not necessarily mean the patient is transferred to a different institution. It also could mean the patient is moving from the ambulance to the ED stretcher or leaving the ED to go to X-ray or the ICU. Often, ED charts do not include information about whether the tube placement was verified at these crucial points.
DeBoer looks for this kind of documentation in the ED chart whenever the patient was moved or the patient’s condition deteriorated: Evidence of positive color change on the CO2 detector, evidence of good end-tidal CO2 wave form, or statements such as “patient moved to ER stretcher, end-tidal CO2 37.”
These specifics tell the expert who is reviewing the chart that the tube was most likely in the right spot. They also show the ED provider knew the tube placement needed to be verified after the patient was moved or deteriorated. “Documentation such as this gives you credibility as a provider,” DeBoer adds.
A patient intubated in the ambulance may die minutes after arriving at the ED. With no document proving otherwise, a plaintiff attorney can argue that the patient’s bad outcome happened because the paramedics misplaced the tube at the time of intubation. Or, the plaintiff attorney can argue that the tube became dislodged when the patient was placed on the ED stretcher.
“Nobody has any documentation as to where the tube was at that specific point in time, so it turns into a he said/she said,” DeBoer explains. “It’s one of those utterly preventable issues that doesn’t need to happen.”
The ED provider will face questions at deposition and/or trial as to what he or she learned regarding not only initial verification but also regarding ongoing verification that the tube was in the right spot. DeBoer has seen plaintiff attorneys ask these questions:
“This mnemonic frequently appears in airway courses or publications as a reminder that when bad things happen — an intubated patient is unexpectedly crashing — to check the tube placement first,” DeBoer says.
Many ED protocols specify the need to verify and document initial placement. However, many do not address reverification, which opens the door to bringing the hospital in as a defendant.
“The plaintiff attorney will blow up hospital protocols and put them on a big screen while you are on the stand,” DeBoer warns.
Financial Disclosure: Kay Ball, PhD, RN, CNOR, FAAN (Nurse Planner), is a consultant for Ethicon USA and Mobile Instrument Service and Repair. The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), Amy M. Johnson, MSN, RN, CPN (Accreditations Manager), and Terrey L. Hatcher (Editorial Group Manager).