Identifying Medical Malpractice (2nd Edition) by Jack Schroder

IDENTIFYING MEDICAL MALPRACTICE
(2nd Edition)

by Jack Schroder

Written for Lawyers, Paralegals, and Investigators.

This book guides lawyers to the people, the records, and the places where their clients have been injured by their medical care. In an easy to read style Schroder helps you to see, from what your client tells you and shows you, how and why your client was hurt. The malpractice of doctors is clearly separated from that of hospitals and their employees. You will no longer have to ponder over who is a defendant or who may be useful to your case.

Schroder does not write like the authors of other malpractice books you may have on your shelf. His is not a dreary textbook that gathers dust in your library, but one you will keep on your desk and refer to often. It is not an academic exercise, but a how-to you will use in your practice. From your first interview of your client to the day you win your verdict, you will find helpful hints and insights. This book is stimulating and exciting. You will never again fear taking on a medical malpractice case.

FREE EXCERPT:
CHAPTER FIVE - SURGICAL COMPLICATIONS

Let us now explore the kinds of patient injury caused by someone in the operating room of the hospital. To do this, we shall consider all rooms in the surgical suite as part of the operating room. We shall also consider most of the injuries as the kinds of injuries caused by the doctor and the hospital together.

Surgeons do diagnose. However, to enable us to study operating room injury as a separate event, let us assume that diagnosis is a medical problem, and that errors in diagnosis are medical errors.

Hospitals may not practice medicine, and diagnosis is uniquely a function of the practice of medicine. We may safely leave diagnostic errors for the chapter on doctor malpractice. We do not wish you to think that hospitals are not involved in diagnostic errors. They are, and the laboratory is where many of these errors happen, as well as in the nursing station, treatment rooms, X-ray, and other departments. In the operating room, failing to recognize cardiac arrest is a diagnostic error, and the hospital may be at fault in this missed diagnosis.

In this chapter we shall have difficulty separating errors of the surgeon from errors of the anaesthesiologist because in surgery the two disciplines may overlap. And because the care of the postoperative patient is the responsibility of the surgeon, he often assumes roles properly belonging to the anaesthesiologist. The surgeon and the anaesthesiologist enjoy (or endure) an odd relationship.

The lawyer considering a surgical malpractice case must think about unwarranted surgery, or simple battery. (Battery is no longer a popular cause of action in medical malpractice, and now usually is included among those cases involving the 'informed consent' doctrine.)

The lawyer should ask himself if the surgery that resulted in his client's injury was necessary. Was another treatment for this disease possible? Was the surgery performed the only kind available? Was the patient offered a hope of improvement by the surgery which she could not have expected from another kind of treatment or no treatment at all?

When the lawyer deposes the doctor, he should ask him if he offered the patient any choices of treatment other than surgery, and if he did, what were these and what prospect of cure did they offer that surgery did not. The lawyer should ask the doctor if he consulted with any other professional about the patient's illness and his proposed treatment for it. He should ask the doctor if he considered the views of his consultant in his choice of surgery or surgical technique.

Unwarranted surgery is common. It is so common that unions and insurance carriers have demanded and obtained the ' second opinion.' The second opinion is supposed to offer the patient another chance to avoid surgery.

So, the first question the lawyer must ask is, 'Was this surgery necessary?' No other question is as important as this. The injury could not have occurred if the surgery had not been done. The basis for your cause of action may be that simple. No surgery: no injury.

The hospital has a function here. If the surgery is not emergent or urgent, but an elective surgery, the hospital may have by-laws governing selected surgeries. Hysterectomies and other surgeries that sterilize are commonly included among those for which approval by another licensed professional or by the hospital department must be given. Caesarean section is another of these surgeries that require prior approval. Hospital by-laws may require the surgeon to obtain a second opinion, or a consultation, and so the record will include an examination and diagnosis by a second surgeon who agrees that surgery is warranted. Rarely the lawyer may see a note that declares surgery is not warranted.

Lawyers should ask for the by-laws of the surgical department whenever they are reviewing a surgical malpractice case.

They should also ask for the procedures and policy manuals of the surgical nursing department. They should obtain not only floor nursing procedures manuals, but the manuals of the operating room nurses.

Some diseases are known as surgical diseases because they respond only to surgery. Some, like appendicitis, are cured by surgery alone, and no other treatment is available or effective.

The list in Table 5-1 is abstracted from a much longer list. Many diseases long thought to be curable by surgery alone are responding to medical treatment. Among these are kidney stones, gallstones, coronary artery occlusion, and hiatus hernias.

Surgeons are exercising medical judgment more today than in the past, and their approach to surgical diseases is changing. The best surgeons are reluctant to perform surgery, and think of surgery as a serious approach to treatment, the last resort. Lawyers should view surgery as a traumatic assault on the human body which is best avoided. When they depose their surgeon they must assume that some other treatment could have been offered the patient before the decision to cut was made. They must hope the surgeon considered these. They must ask him if he did consider his patient first, and the disease second.

One group of surgical patients is separate from all others: females who undergo surgery for ' female disorders.'

Women undergo more surgery than men. Women seem to have more disorders than men. Perhaps men go to the hospital to die and women go to the hospital to have their sex organs excised. We have found no studies which answer the basic question: if women are the stronger sex, why is it they have far more illness than men?

The economic base of the American system of medical care delivery is the care of women. According to the American College of Surgeons, out of every ten surgical patients, six are women.

Robert Mendelsohn wrote an iconoclastic book, 'Malepractice,' that ought to be a plaintiffs lawyer's bedside book. Until his death recently he spoke on TV talk shows protesting most female surgeries popular today.

The ten most frequently performed surgeries are: biopsy to make a diagnosis; dilatation and curettage of the uterus (often for diagnostic purposes); excision of skin lesions; hysterectomy; ligation and division of fallopian tubes (tubal ligation); Caesarean delivery; hernia repair; oophorectomy (removal of ovaries); cataract excision; tonsillectomy and adenoidectomy; and rapidly catching up to all the others, open heart surgery. You can see that of these operations half are for women exclusively. The usual surgery on older women (the so-called surgical menopause) incorporates hysterectomy, oophorectomy and salpingectomy, or a total castration.

Those risks attached to surgery of any kind are shown in Table 5-2. Some of these risks are more commonly found in abdominal or thoracic surgery than in surgery of the extremities, but they are common to all surgeries. The risks of surgery include the risks of anaesthesia. Risks may be categorized according to the body system involved, or according to the kind of surgery, or even according to the patient response. Table 5-2 includes risks common to all surgery. The table does not include unnecessary surgery, possibly the greatest risk.

Table 5-2 is derived from several sources and is a partial list of the possible postoperative complications the lawyer will encounter in his surgical malpractice cases. The experienced malpractice lawyer will see that many of the complications are the result of anaesthesia errors, including overdosage, excess fluid administration during surgery, or incompetence of the anaesthesiologist. Later we shall identify which complication is anaesthetic and which is surgical.

The Report of the Secretary's Commission states that in one study 65% of all patient injuries resulted from postoperative complications. The same study showed that the rate of injury for hospitalized patients was about 7% (two hospitals were studied; one had a rate of 6.4% and the other 8.8%). Other studies place the rate of patient injury higher. A 1977 study by the California Medical Association in collaboration with the California Hospital Association found ' adverse outcomes' in 4.6% of all hospital discharges. They found that 17% of these demonstrated medical negligence. The negligence rate seems low to us.

If we accept the figure of about 6% (one in every seventeen patients), and assume that 65% surgical injury is accurate, then we may say that 4% (one in every twenty-five patients) of all hospital patients are injured as a result of surgery.

Remember that these figures do not reflect the patients who were injured but who did not complain, or whose injuries were not recognized, or whose injuries were themselves misdiagnosed, or whose injuries were not reported.

I cautioned earlier that some conclusions in the Report were inaccurate because they were based on insurance data. Surgical injuries, while important in any consideration of medical malpractice, are not the major source of patient injury.

The total injury rate from all causes is higher than 7% in many other studies. I have found single types of hospitalized patient injuries that add up to a high rate. For instance, one study of postoperative gram negative bacillary infection found in one hospital an infection rate of 1 in every 56 admissions (medical and surgical), and that two other hospitals reported a rate of 1 in every 100 admissions. (McCabe, 'Gram Negative Bacteremia', Disease of the Month, Yearbook Medical Publishers, 1973.) Here we see one study finding a single family of bacteria (enterobacteriaceae) causing injury in at least 1% of patients.

That is one patient in every hundred. If the hospital has four hundred beds occupied, four of its patients will have a gram negative bacteremia.

More recent studies tell us that patients suffer surgical injuries in great numbers. However, as I said earlier, most data are secret and unavailable. I listed some of the more recent data on malpractice payments in Table 1-2.

When I asked for data, I was told that I could have the information in Table 1-2, but that more particular data was not public, and that I could not have data on any individual doctor. The American Medical Association has for years concealed information it receives about doctors' errors, and apparently even faced with present day dangers in medical care, refuses to cooperate with efforts to correct errors.

A list of 10 leading causes of death in the United States, dated February 28, 2000, places medical malpractice deaths in the No. 5 spot on a graph. The figure given for these deaths is 97,835, a number that appears to coincide with other data. This table does not clearly show malpractice as a single cause of death, but includes it in a category called 'Unintentional Injury and Adverse Effects' The person I spoke to about this category did not answer my questions about what other causes of death were included in the category, only that malpractice deaths were.

Another report, by the Institute of Medicine in November 1999 (apparently the source for the list of the top ten cause of deaths above) is called the Report to the President on Medical Errors. Here again, specific data is not revealed, only generalizations. The cost of medical error is set at $37.6 billion a year, and about $17 billion are attributed to preventible errors, of which sum about half is for direct medical care costs.

So, I am left to give you my impressions based on the number of cases referred to me over the past twenty years. That impression is not subjective, and is that surgical errors have increased as Ms Shalala says by about 5 to 10% every year, and the costs have increased at about the same level. However, I believe too that more cases taken to trial or arbitration have been defensed in the 1990s than in the 1980s or earlier.

I think the efforts of the medical profession have been directed at the wrong parties in the malpractice epidemic. Doctors are oppressed by HMOs, especially Insurance Company HMOs, and in their striking out have attacked lawyers when they should be attacking their insurance carriers. Medical Malpractice insurance carriers are in league with the insurance industry that owns our medical care delivery system. Defense lawyers have unlimited assets to draw on in their preparation for litigation, and it is the insurance industry that pays for this.

Postoperative infection is not the most common postoperative complication, probably atelectasis is.

One problem with the studies that came up with the 7% figure is that we do not know how the study was conducted. Did the study include only those injuries which could have resulted directly from bad medical care, or did they include some injuries which may have resulted from equipment failure, nursing errors or medicine errors?

Later you will see studies of patient injuries which are in no way related to medical care. Patients suffer non-medical injuries in great numbers while in the hospital.

Shock can occur during surgery, but when it does it usually carries a name like hypotension, hypovolemia, cardiac and respiratory arrest, or other more precise diagnoses. Shock is the acute loss of peripheral circulation, or the loss of oxygenated blood supply to the organs. The brain suffers first and shock is often accompanied by a loss of consciousness.

The most common cause of shock in the postoperative patient is blood volume loss, or hypovolemia. Blood volume may be lost by hemorrhage, or by escape of fluids into the intercellular space. In surgery, blood loss must be estimated carefully and accurately. Many surgeons underestimate blood loss. Only by weighing sponges, wipes, drapes, gowns and by a generous estimate of bleeding during surgery can the loss be estimated. If the patient is in deep shock, the surgeon must guess that the loss is at least one fourth of the patient's blood. Then transfusion of at least one and a half liters of whole blood (about three units) may be necessary to bring the blood pressures up.

Of course, if hemorrhage is not controlled, the blood volume will fall again, and the patient will lapse into shock. Lawyers will see patients who have received twenty or more transfusions of whole blood in a futile effort to replace blood lost when the source of bleeding cannot be found.

Recent reports of AIDS virus and the various hepatitis viruses in transfused blood has made excessive replacement of blood during surgery an even more risky prospect.

The lawyer should hammer away at the estimate of blood loss shown in the operative report, or often in the anaesthesiology graph and report. How did the doctor estimate the blood loss? How does he account for the shock? How much blood was given to replace lost blood? Did he notice the signs of blood loss, or did the anaesthesiologist? When? Did he weigh the sponges and drapes? Did he look on the floor?

Second to hemorrhage as a cause of postoperative shock is a mechanical hypovolemia. The lawyer should review the anaesthesia records for ' positioning' of the patient. Some patient positions are conducive to hypovolemia. Among these is the ' jackknife' for hemorrhoidectomy and many rectal surgeries. The supine position of the woman in delivery allows the heavy uterus and viscera to press against the vena cava, often with sufficient force to block the return flow of blood to the heart and cause a mechanical and dangerous hypovolemia.

Positioning of the patient for surgery is the responsibility of the anaesthesiologist. The surgeon may demand a position because he believes he sees better or is able to function better. So, if a patient suffers hypovolemia because of positioning on the table, both surgeon and anaesthesiologist may share blame.

During surgery if a patient gets into difficulty, the surgeon may not be aware until the blood becomes dark. Surgeons must observe their patients for any change in condition that signals danger. That means that once in a while during a prolonged surgery, the surgeon ought to look up and observe not only his patient, but the anaesthesiologist and the anaesthesiologist's monitors.

The lawyer reviewing records of postoperative shock must look for efforts to control blood loss and to restore fluid and electrolytic balances. He will find notes referring to blood or fluid replacement on the anaesthesia record. He should see that the doctors employed physiologic measurements such as central venous catheters to measure pressures of the return blood to the heart; catheters into arteries to measure intra-arterial pressures; and of course the usual blood pressure measuring devices and clinical observations of the patient at regular, close intervals. The lawyer should make a special note of time.

Delay in exploration for bleeding sites may be found in postoperative progress notes discussing bleeding sources and methods to control blood loss. Progress notes such as these must be dated and timed. Nursing notes may record bloody dressing changes or other signs of hemorrhage. If the surgery was abdominal or thoracic, major arteries may be involved and leakage may continue despite corrective efforts. Reopening must be prompt. Anastamoses may leak after surgery to repair aneurysms, and prompt re-entry and repair is required. If the lawyer sees a note which expresses the fear that eventually the patient will have to return to surgery, he should count the delay of return in minutes and seconds. Bleeding from cut abdominal arteries will not stop by itself.

I have listened to doctors in deposition deny excessive blood loss even though they could offer no other cause for shock in their patient. When the lawyer persisted in asking them how they estimated blood loss, their answers were usually that they guessed. In other words, they did not realize how much blood their patient had lost.

The nursing record may note falls in blood pressure, pallor, rapid and weak pulse, sweating, rapid shallow respirations, and most ominously, a sudden fall in temperature.

The lawyer should chart times carefully: the starting time for anaesthesia; the length of time for surgery; the time of closure; the time of arrival in recovery; the time of the nurses' first note about hemorrhage; the time of the call to the doctor and the time of his arrival; the time the patient was returned to surgery; and the time the patient was re-opened for exploration. Lawyers will be amazed when they realize how long some of these 'emergency' procedures take in a hospital. The time of response to hemorrhage is critical.

I recall one doctor testifying in court that he supposed nurses would automatically begin preparing a patient for return to surgery if bleeding in the recovery room was excessive. No. Nurses do nothing without an order from the doctor. The lawyer may see notes about telephone calls to the doctor's exchange, and urgency in notes written by nurses. Nurses may ask the anaesthesiologist to look at the patient. Unless the surgeon appears and takes charge, nothing will happen.

Disseminated intravascular coagulation may result from excessive and continued bleeding. This terrifying complication often follows bleeding after gynecologic surgery, and obstetric surgery, although it may occur after any surgery. The patient's medical condition may be enough to start the process. Sometimes the patient has a clotting deficiency which is not recognized (or tested for) prior to surgery. The lawyer must examine the clotting times and prothrombin times in the pre-operative laboratory reports. The prevention of postoperative bleeding is the task of the surgeon, and he may not delegate that responsibility. The surgeon must order the proper blood tests prior to surgery, and if any question arises concerning the adequacy or the results of any test, he must order a repeat and a different, confirming laboratory test. If all tests prior to operation were within normal limits, and bleeding persists despite the administration of blood or blood factors, and if the bleeding continues after exploration of the surgical site, then intravascular coagulation must be suspected. Or worse, DIC must be expected, and preventive measures begun.

The lawyer should look for notes in the record that describe early signs of DIC: patient complaints of headache, chest pain, and signs of hemorrhage, bloody sputum, diarrhea, and petechiae (bright red freckles scattered over the body). Entries of this kind will often appear in recovery room nurses' notes first.

Prevention of DIC may include further blood studies, and administration of blood products such as fibrinogens and packed cells. The lawyer should expect to see a consultation by a hematologist. DIC is a recently re-discovered phenomenon. In early times the problem was recognized as 'hemoclastic reaction,' the name given to the destructive coagulation of blood with micro-emboli throughout the vascular system. Surgeons can not say they did not anticipate DIC in their bleeding patients.

Failure to clot is the principle complication, and physician response should be quick and definite. The lawyer should look for treatment which includes epsilon aminocaproic acid ( EACA), as well as blood products. Preoperative transfusions, instead of preventing DIC, may actually cause it.

The lawyer must review the record for laboratory work, prior to surgery, that is designed to test for: vascular function; platelet function and quantity, including clot retraction, platelet count, serum prothrombin time and thromboplastin generation; tests for over-all clotting ability; tests for circulating anticoagulants; tests for fibrinolysis; and tests for specific clotting deficiency diseases.

The lawyer reviewing records which describe continuing hemorrhage must remember that after multiple transfusions, measurements will be of transfused blood, and not the blood manufactured by the patient. Laboratory tests for bleeding propensities after prolonged hemorrhage and multiple transfusions must be continued until the surgeon is assured that he is measuring the patient's blood. This may take days, and no patient whose hemorrhage has continued for more than two or three days post operatively can be considered safe from sudden hemorrhagic shock until she has begun to replace transfused blood with her own competent blood. The lawyer should look for evidence that the surgeon recognized this, and that sufficient nourishment high in vitamins and amino acids was provided the patient so she could restore her blood-producing organs to full function.

Respiratory impairment is any interference with the passage of oxygen to the lungs and movement of oxygen through lung tissue to the blood for later transport to the cells. Impairment may be the result of an obstruction of the upper airways, the nose, mouth and throat, or it may be the result of obstruction, spasm or aspiration into the trachea or bronchi.

Head and neck surgery, including thyroidectomy, laryngoplasty, and in particular dental surgery, add risks of airway contamination by saliva, particles of foreign matter, and aspiration of stomach contents. Examination or surgery of the vocal cords are common causes of airway obstruction. These risks are shared by surgeon and anaesthesiologist.

Records of head and neck surgery should include notes describing hyperventilation, or the introduction of 100% oxygen for a few minutes prior to surgery in order to build a high oxygen tension in the blood. Vocal cord surgery requires heavy use of oxygen prior to surgery, and if preoperative notes do not demonstrate the use of prophyllactic oxygen, the lawyer may need look no further for his evidence of negligence. The lawyer who reads records of throat surgery may find blood tests that demonstrate loss of oxygen tension after the surgery. Those tests may be a sign that the surgeon and the anaesthesiologist did not prepare their patient properly.

Of course, if the records mention cardiopulmonary resuscitation (( CPR), the lawyer knows the patient did not have sufficient oxygen reserves to survive the surgery.

Time is critical in throat surgery. The lawyer ought to look for accurate recording of time on the anaesthesia record, and in the operating room nursing records.

Vocal cord surgery may be unnecessary, or pointless, and the lawyer ought to consider the surgery unwarranted until his own expert tells him that surgery was needed.

The most common respiratory malfunction is atelectasis, a condition in which the aveolae (air sacs within the lungs) are filled with fluid, and oxygen can not pass through the lung tissues into the arterial system. Atelectasis may follow pulmonary irritation by anaesthetic gasses, or by aspiration of stomach contents. The lawyer should watch for early recognition and treatment. Treatment is most often done by the patient herself: coughing, changing position, and deep breathing. Sometimes oxygen must be given after the patient's lungs have been suctioned free of fluids and aspirated matter.

Atelectasis occurs commonly after surgery and is a well known risk of gas anaesthesia. Well known or not, it causes death if not treated promptly, or if ignored and excessive narcotic or hynotic agents are given for postoperative pain.

Respiratory impairment may result in death by way of hypoxia and anoxia, and the progress to death may be slow and inexorable despite heroic treatment.

The lawyer may find progress notes and nursing notes describing the slow death of patients after respiratory impairment. These patients may live for days or months before dying. Death is almost always determined by ' brain death,' although when at last the patient is declared dead, pneumonia is given as the immediate cause of death. Pulmonary edema is common.

Hypoxia is a low level or low concentration of oxygen in the blood. Anoxia is a lack or absence of oxygen in the blood. The lawyer should look for signs of hypoxia. Laboratory tests for ' oxygen tension' in the blood or for the presence of carbon dioxide and other products of metabolism should be run, and the reports noted in the doctors' progress notes.

The anaesthesia record will show an increased pulse rate, and if the anaesthesiologist is making accurate notes, twitching may be recorded with a note about fixed and dilated pupils. But before that ominous sign, the anaesthesiologist should have noted the increased pulse rate. If the pulse rate returns to normal after oxygen is given the patient, that almost certainly proves the hypoxia. A short time after the pulse rate rises, the blood pressure will begin to drop. The lawyer should watch for charting of blood pressures that drop to 100 over 60 and below as signs of trouble. Other signs of hypoxia which should be charted are pallor, cyanosis, and a darkening color of the blood at the surgical site. The surgeon will notice the change of blood color, but the anaesthesiologist should note the other changes. The lawyer should study the anaesthesiologist's record closely for a hint that the doctor left his patient. The anaesthesiologist who works several surgeries during the morning may leave his current patient to check on the earlier patient in the recovery room. Such abandonment of a patient is far too common today.

The signs of anoxia are those of hypoxia which progress on to fixed and dilated pupils, thrashing, paralysis and cardiac arrest.

Hypoxia and anoxia often result from laryngospasm. A careless anaesthesiologist may cause laryngospasm by entubating his patient roughly and by pushing stomach fluids ahead of his scopes and tubes. Laryngospasm is best treated by prompt mask-delivered oxygen and suction if necessary. Oxygen will relieve the spasm. Prodding and poking at the closed vocal cords will increase the spasm and may render the passage of oxygen to the lungs impossible even under pressure of respiratory devices. The use of curare based medicines may help relax the vocal cords, but must not be relied upon alone. The skill of the anaesthesiologist is the most important factor in the patient's recovery.

If the notes describe difficulty in passing the laryngoscope and endotracheal tube, laryngospasm probably is present.

Because most anaesthesia records are difficult if not impossible to interpret, the lawyer may have to depend on his deposition of the anaesthesiologist to determine what happened. But first he should have an independent analysis of the anaesthesiologist's record, by another anaesthesiologist, preferably some one out of county. He must not use a anaesthesiologist who belongs to the same group practice. These groups often cover several counties.

Respiratory impairment during the immediate postoperative period may be caused by aspiration of stomach contents into the bronchial tree. When the patient is returned from surgery, the anaesthesiologist is supposed to observe her and examine her to see if she is breathing on her own, and if she has recovered from anaesthetic agents. He is the person who must declare her ready for return to her own room. He can not delegate this task.

One problem the lawyer will have in a case involving death from anoxia (asphyxiation) in the post-op recovery room is that signs like thrashing or even paralysis will not be noticed because the patient has been lashed to the table or bed. He may ask the autopsy surgeon about bruising and other indications that bindings injured the patient in her throes.

In actual practice, however, the anaesthesiologist often is working in another surgery when the patient comes out of anaesthesia. Nurses may 'extubate' her. That is, a nurse may pull out the endotracheal tube used for gasses in general anaesthesia, and leave the patient on her back with an unprotected airway. If the patient lapses into unconsciousness from time to time, the probability for aspiration is great. If she aspirates acid stomach materials, she will suffer bronchospasm or laryngospasm and choke. She may then gag, and aspirate more acid materials, go into irreversible laryngospasm and suffocate. Her death may ensue in a few minutes because during anaesthesia she is moderately hypoxic, and not much more insult to her oxygen blood levels is necessary to cause death.

Doctors like to say that 'brain death' may occur in eight to ten minutes if the airways are blocked or the patient anoxic. That time period is probably correct for normal patients whose blood oxygen levels have not been affected by drugs or anaesthetic agents. Brain death can occur in an anaesthetized patient within seconds if hypoxia has been prolonged or deep during surgery. Lawyers must examine records of anaesthetized patients carefully for early signs of hypoxia if respiratory arrest occurred in the recovery room. Hypoxia will shorten the time of anoxia necessary for death or brain death in any patient.

Impairment of the transport of oxygen to the peripheral cells may occur because of over-narcotization prior to or after surgery. Loss of blood also reduces the oxygen supply to the body.

Anaesthetic gasses depress the central nervous system centers for respiration. If the patient has been narcotized heavily before the surgery, the highest blood levels of the narcotic may not be reached until after surgery. The combination of narcotics and anaesthetics cause further depression of the central nervous system breathing controls. The patient requires constant observation by qualified personnel during her postoperative recovery. If narcotics and anaesthetic gasses have reduced the cough reflexes, the patient may not be able to clear her larynx or trachea of secretions caused by irritating gasses or endotracheal tubes, and she will choke.

The lawyer should examine the record for notes about suction of the mouth and upper airways while the patient is in the recovery room. He should see notes by the anaesthesiologist that he listened to the chest, and that he examined the airway to assure himself that his patient could safely be left alone. The nurses' notes should confirm the visit of the anaesthesiologist, and should describe nursing techniques designed to protect the oral airways, and to help the patient breathe and cough.

The cure for respiratory impairment is oxygen, and if no laryngospasm occurs, oxygen provided through a tube to assure an adequate airway.

The patient is not ready for return to her room until she is breathing on her own and is in no danger of aspiration, choking or spasm. That means she is conscious and her airway is clear of obstruction of any kind. Look for notes about coughing, or best, speaking.

Also, look for later notes in the doctors' progress notes about pulmonary edema, almost always a result of respiratory impairment, often associated with our next complication, cardiac arrest.

Lawyers must always remember that the times recorded on anaesthesia records or operative reports are the times doctors and nurses first recorded the signs, not when the signs should have been evident. The lawyer must assume that the signs are never noticed as soon as they should be, and if the patient dies, he knows the signs were not recognized in time. Look back on the anaesthetic records for signs of respiratory distress.

We can not admonish the lawyer too often: check time. Cardiac failure (arrest) during or immediately after surgery is almost always heralded by respiratory failure. If respiratory impairment is not corrected, cardiac arrest follows within minutes, or seconds depending only upon the alertness of the attendants.

Cardiac arrest has many causes, but the major cause during and after surgery is hypoventilation, or respiratory impairment. Signs should be recorded on the anaesthesia sheet. Perhaps only one sign will be charted: tachycardia or rapid pulse rate. The patient may yawn, or sigh, or perhaps appear to be restless. If the patient is conscious, as in spinal analgesia, the patient will become anxious and apprehensive. If the lawyer reviewing the record sees that the anaesthesiologist added some Surital (thiamylal sodium) or similar hypnotic to ease the patient's anxiety, he should assume that hypoxia and hypoventilation were proceeding to cardiac arrest. Any late addition to an anaesthetic agent to produce deeper anaesthesia or to ease the patient's fears is the probable cause for cardiac arrest. Later signs will be cyanosis, twitching and convulsions. By then cardiac arrest is imminent.

Any note about patient anxiety during a spinal analgesia is a note warning of impending cardiac arrest. The conscious patient becomes anxious when she is unable to get enough oxygen. Anxiety is a sign of hypoxia.

If respiratory embarrassment has reached the stage of cyanosis, lawyers should expect to find irregular heart rhythms, weak peripheral pulse, respiratory abnormalities (irregular breathing or apnea), pallor (usually grayish), and skin mottling recorded. If cardiac arrest has begun and has been noted in the records, the absence of recorded early signs means only that no one noticed the patient's trouble. The signs will have been present recorded or not.

In modern surgeries with cardioscopes and other monitors attached to the patient, EKG strips will demonstrate irregularities. Those irregularities will appear on the monitor screen. Anyone who sees irregularities on the monitor mounted near the table, and usually overhead, must sound the alarm at once. Monitors are as useful as the person observing them, no more.

Any of the other causes of cardiac arrest must be proven by examination of the record. Overdosage with narcotics can be shown in the pre-operative records, doctors' orders, and the nursing records for the operation.

Hypovolemia is probably the second most common cause of cardiac arrest. Hypovolemia results in poor return of blood to the heart, a loss of peripheral circulation, and shock. Hypovolemia may result from shock, hemorrhage, pressure upon large veins, and falling blood pressures. We shall discuss hypovolemia in more detail in the obstetrics and gynecology chapter.

Look for double dosage, the most common cause of overnarcotization in the pre-operative period. The patient will get her pre-op medicines on the floor, and again on arrival in surgery. Or, the anaesthesiologist may be so caught up in routine that he orders the same dosages for every patient he sees without any regard for patient differences in drug tolerance.

Go back to the initial history and physical and see what the patient's height and weight are. A small, skinny lady takes lower doses than a fat, large-boned man. Don't be afraid to think like a layman.

Cardiac arrest may also follow fluid overload, but then it will show early signs of congestive heart failure, perhaps even pulmonary edema. It may follow the excessive use of drugs other than narcotics, among these are vistaryl, valium, and other central nervous system depressants. Some of the medicines used to control high blood pressure may lead to cardiac arrest during anaesthesia.

Cardiac arrest will follow prolonged hypotension or hypovolemia, and is a natural consequence of hemorrhage which is uncontrolled.

Some surgical manipulations such as teasing the iris during ophthalmologic surgery, or tugging at the uterus during Caesarean section, may cause cardiac arrest by exciting reflex activity. Cardiac arrest after surgery may be the result of overzealous or traumatic surgery, or prolonged surgery. Cardiac arrest from coronary artery occlusion or emboli may follow any surgery, but will occur most often after careless hemostasis or surgery which exposes the vascular system to air and begins the clotting of blood. Obstetric surgery adds to the general cardiac risks of surgery another risk: amniotic fluid embolism (See Chapter 10). Prolonged surgery of the long bones may produce a fat embolism that will occlude coronary arteries. Sometimes excessive transfusions will increase the danger of micro-emboli which may block the coronary arteries and cause arrest.

Cardiac arrest following any embolism may be blamed on prolonged surgery. If the surgeon is rough, careless about bleeders, and leaves the patient open longer than expected for the surgical procedure, the lawyer can offset defense allegations that emboli are expected risks of surgery.

Look at the starting times on the anaesthesia record, and the closing times. How long did the surgery actually take? How long were tissues and blood open to room air? How long was the skin separated? These are critical times. Lawyers must always think about time in the record. In cardiac arrest, time is the primary measure.

Death, or worse, brain injury, following cardiac arrest brings large verdicts. The lawyer must demonstrate to the jury that the cardiac arrest was inexcusable, and he will be able to do this if he can show a lack of recording of the premonitory signs of arrest, or a failure to respond to signs.

The probable cause of death following cardiac arrest is most often delay. Delay in response to the emergency. Delay in noticing signs. Just plain delay.

Chart times. Check times over and over again to establish any delay. Seconds lost make a difference to the patient.

I recall one case in which the surgeon, after the anaesthesiologist said he thought a hemorrhoidectomy patient was in trouble, said, 'Just a minute, I have only one more bleeder to tie off.' The patient died thirty days (and $175,000) later. The case was settled after jury selection.

Arrest is usually described as ' asystole,' or the loss of any heart action: no pulse. Cardiovascular collapse usually follows hypoxia or anoxia, and the loss of central nervous system impulses. The common ventricular fibrillation is caused by surgical manipulation, infection, or narcotic-induced central nervous system depression. Cardiac arrest may follow entubation intended to correct respiratory impairment, by way of irritation of the vagus nerve, or laryngospasm.

In any record in which cardiac arrest is described (or may be suspected by later notes; e.g., a note about pulmonary edema, the lawyer should expect to find a record of cardiopulmonary resuscitation (CPR). The term itself should clue the lawyer to the almost inevitable respiratory basis for cardiac arrest in surgery or in the hours after surgery. The hospital record is incomplete unless some form of cardiopulmonary resuscitation sheet is included. Failure to provide this record demonstrates a disregard for the patient's safety and should not be allowed to go by without attack by the plaintiff attorney. The patient's future care depends upon an accurate and complete cardiopulmonary resuscitation record.

The CPR record is usually the responsibility of the first registered nurse to arrive on the scene. If the arrest occurs in the operating room, the lawyer should expect to see a nurse anesthetist maintain this record. The record should show by the minute the arrival of competent help, the administration of all electrical aid, the administration of all drugs, the mechanical aid provided, and blood pressures, respiratory rates and other physiologic data.

As the lawyer reviewing a record, you will begin to understand the need for accurate recording of the time of events during cardiac arrest. If, as you have seen, hypoxia has been prolonged during surgery, the response to a ' Code Blue' call must be within seconds. Hospitals no longer rely on the CPR team as they once did, because the time needed to assemble this team usually was longer than the time needed for brain death in the patient. Today most hospitals rely on well trained personnel of all classifications to perform CPR. So, the lawyer will see nurses' aides, LPN's and LVN's doing CPR because they are often the first at the scene.

The Journal of the American Medical Association ( JAMA) published a supplement in 1974 (Volume 220, Number 7) entitled 'Standards for Cardiopulmonary Resuscitation (CPR) and Emergency Cardiac Care (ECC).' Get it. It is ancient, but describes the care even untrained doctors ought to know.

In any CPR or cardiac arrest lawsuit, the lawyer must ascertain the competence of all personnel at the scene. Operating room personnel include many who are not nurses or surgical technicians. The lawyer must ask for the schedule of CPR training, the names of those who attended, and the content of the training program. He must determine how many hours are devoted to course work, and how many hours to actual on site practice. He will need to ask who conducts this training and what his qualifications are. He should ask if the hospital has drills, that is, training sessions called without notice to measure the response and preparation of personnel.

Ask the administrator how many times a month someone enters a department, tosses the Ambu-Annie dummy on the floor, and calls out, 'CPR'. Does he record response time, number of qualified responders, and time to start actual CPR? Cardiac arrest can occur on nursing floors, in X-ray departments, diet kitchens, and many other departments of a hospital. Drills are essential training devices.

The lawyer must never assume that doctors know 'all about CPR.' I fear most doctors have never performed CPR, and many have never been instructed in CPR. A lawyer should take a CPR course at his local Red Cross facility, then he will know what to ask. Better, he should take a course intended for physicians.

Today CPR depends for its success on electronic devices (defibrillators, portable cardioscopes); portable oxygen equipment (masks, endotracheal tubes, suction devices, plastic airways); bedboards; and various drugs. The lawyer should ask where the emergency equipment (the crash cart) is kept, keeping in mind that it should never be the repository for purses, clothing and brown bag lunches in the corridor. He must visit a hospital to see how equipment is kept at the ready. Should I suggest you do not give the hospital a chance to clear the equipment of junk?

The lawyer must insist that the anaesthesiologist's cart is no substitute for the crash cart.

The lawyer should ask who is responsible for maintaining fresh and ready supplies on the crash cart. He should ask how often the cart is checked for supplies such as airways, syringes loaded with adrenalin, lidocaine, sodium bicarbonate ampules, and styrettes of various stimulants and restoratives. He should ask who checks the anaesthesia cart, and who keeps that cart supplied as well.

The lawyer should not accept bland assurances that 'we always check these things right after the cart is used.' That is not good enough. No matter how often CPR occurs, panic follows, and employees forget to do routine things. If the surgery crew claims to have no more than two or three cardiac arrests a year the lawyer knows nothing is done right. (That low figure is the usual claim, but is almost always a fabrication.) Supplies must be renewed on a regularly scheduled basis, at best a daily schedule, and a record kept of this activity.

Ask for the crash cart record. Every crash cart has or should have a notebook record attached to it. Ask for it and read it.

The lawyer deposing hospital personnel in any case involving CPR must always ask how they are trained. Do they have drills on a regular basis? Do they practice on each other or only on the plastic dummy they call 'AmbuAnnie?' Do they have unannounced drills? Who does the training? And, of course, when was the last time you performed CPR?

Electrolytes are the ions floating around in the blood and intracellular spaces. The electrolytes or chemicals in human blood are in delicate balance during good health, and are usually upset or put out of balance by illness, trauma, or other abnormal conditions. Surgery and anaesthesia are abnormal conditions.

Electrolyte imbalances may be caused by the illness that brought the patient to surgery. Imbalances of this kind should be measured prior to surgery and some effort made to correct them by diet, medicines or intravenous fluids before surgery. Safe surgery requires a safe patient. The lawyer should look for signs of imbalance noted by the laboratory records prior to surgery. Usually the laboratory will run a 1220 or 660, a computerized battery of tests, which gives proportions of various chemicals in the patient's blood. The lab will identify those which appear to be out of whack, and the lawyer should look at doctors' orders to see what if anything has been done to offset the imbalance. He may find that the anaesthesiologist has made the correction when he starts his pre-anaesthesia I.V.'s.

Other causes of electrolyte imbalance are medicines given prior to surgery. Sometimes muscle relaxants are used as a part of anaesthesia, and these may cause electrolyte loss into tissues, and an imbalance serious enough to affect heart rates and respiration. If this happens, signs of cardiac arrest or respiratory impairment will be charted, and the lawyer may wish to explore all the medicines used prior to surgery to find the cause of cardiac arrest.

Usually the complications will follow employment of both pre-operative and anaesthetic medicines. Atropine given pre-operatively will reduce the chances for trouble from anticholinesterase drugs like prostigmin which may be used to prevent urinary retention after surgery. Atropine is also used to reduce excessive salivation and fluid loss during surgery.

If the patient has had an infection prior to surgery, the antibiotics used may be the culprit. Neomycin and streptomycin are well known causes of electrolytic imbalance. Other antibiotics for the lawyer to watch for include Vancomycin, tetracycline, sulfadiazine, and polymyxin.

Sometimes, in a patient whose condition seems precarious at the start of surgery, pre-anaesthetic hyperventilation may be enough to produce electrolyte imbalance.

Uncorrected electrolyte imbalance during surgery leads almost inevitably to hypotension or reduced blood pressure which leads to a rapid pulse and cardiac arrest.

One of the most common results of joint negligence (doctor and hospital) is postoperative infection. It is also one of the deadliest. Gram negative bacteremia is today's hospital scourge, just as a few years ago staphylococcal infections were.

If your client had a postoperative infection, you should name all the doctors and the hospital as defendants. You can not omit any defendants.

Many doctors now use broad spectrum antibiotics to prevent postoperative infections by these gram negative inhabitants of all hospitals. Prophyllactic use of broad spectrum antibiotics has failed to prevent these infections, just as it failed to prevent staphylococcal infections.

Not only do bacterial infections kill patients, but so do viral infections of all kinds, and fungal and parasitic infections. Prophyllactic antibiotics may potentiate the growth of viruses and fungi by destroying their natural foes in the body.

The use of prophyllactic broad-spectrum antibiotics that kill all organisms in the body is somewhat like the use of garden insecticides. Not only is the aphis killed, but bees, lady bugs and all the other good guys go belly up.

Hospitals have in their bowels the seeds of postoperative infection, and it is the failure of those working in hospitals to recognize this, or to compensate or correct for this, that allows postoperative infections, or any nosocomial (hospital- caused) infection to strike patients.

Postoperative infection causes patient injury of many kinds. Postoperative infection delays healing; it destroys body systems or organs; it produces chronic diseases; it kills.

Postoperative infection is a medical malpractice often concealed in the patient record, or dismissed as unimportant, or even blamed on the patient herself. It is the medical malpractice most difficult for the plaintiff's attorney, and it is the malpractice action most often defensed.

The common sources of infection in the hospital are the plant itself and the persons who work in the hospital.

Infectious agents may be found in all areas of the plant. The structure itself provides the most difficult reservoir of infection to control, even more difficult than the throng of employees, salespersons, physicians, technicians, inspectors, insurers, contractors, and all the other people who wander through the halls of the building.

Table 5-3 is probably typical of studies of hospitals, and results from a study of infectious materials found in one nursery in a hospital.

Source: Korones, et al., High Risk Newborn Infants, C. V. Mosby Co., by permission.

Notice that the table includes not only sterilizing solutions, but containers for those solutions. Most hospitals use soaps containing sterilizers of various kinds, pHisohex being a popular one. Pathogens have been found in solutions of pHisohex. Pathogens have been found in the popular green soap, the common liquid soap in surgical scrub rooms.

Daily surveillance of basins, soaps dispensers, storage areas, wash basins, hopper rooms, mop buckets is essential to remove sources of infectious materials. Flowers in patient rooms are dangerous.

Hospital infection cases are usually caused by several defendants. The problem may begin in central supply where failure to run routine inspections of all sterilized goods occurs. The autoclave by which most supplies are sterilized must have a record of maintenance that the lawyer should ask for. He should also determine how sterility is verified and how often. He should ask who does the inspection of sterile goods and of the autoclave. He should always ask how plastic goods are sterilized, and then he must remember that disposable plastics are supposed to be disposed. He will find that many hospitals, to save a nickel, will re-use disposables after running them through various gas antiseptics, the cold sterilization process. This procedure must be attacked as unsafe.

All the sources of pathogens listed in the table were found within a 'clean' area of the hospital.

Don't ever let a defense attorney say the patient brought her own pathogens to surgery.

The most dangerous postoperative infections are caused by gram negative bacteria found in the normal bowel. And as we mentioned above, these pathogens also inhabit the hospital.

Other bacteria live in the gut, some in larger numbers, but those in Table 5-4 are the most common cause of gram negative bacteremia. These pathogens do not travel.

Germs must be carried. The most common carrier of gram negative pathogens in the hospital environment is the nurses' hands. Doctors are a close second. Handwashing is essential in patient care. Handwashing is life-saving in surgery.

Those of you who took biology at some time may recall those flitting blips in that drop of water on the slide under your microscope. Those bacteria really flew about but not one of them was able to leave that drop of water.

Again: Handwashing facilities, basins, soap dispensers and faucets must be cleaned and sterilized on a routine, daily basis.

Hospital engineers and planners have tried all kinds of building designs, air conditioning systems, and clothing for surgeries. Infection continues. 'Air borne' infections can be controlled by systems of ventilation which push air from clean areas into dirty areas. If the air pressure in surgery is high and in the corridor it is low, germs will flow from surgery into the corridor. Right?

So, air pressure over the operating table is increased. (Lawyers may argue that the reduction of infected surgical wounds may result more from a heightened consciousness than from increased air pressure.) Gowns worn by the operating room crew may be 'whole body exhaust' suits. In this manner infection in surgery may be reduced by one fourth in hip surgery. Whole body exhaust systems provide a greater cover of the attendants' body parts.

In September 1989 the TV program '6O Minutes' presented a doctor who was quitting San Francisco General Hospital because she said not enough protection against AIDS was provided the surgeons. The program then showed surgeons clothed in whole body exhaust suits. These suits have been in use for many years, mostly in open-heart surgery, to protect the patient. Their use has been rejected by many surgeons who say they are too hot, cumbersome, and uncomfortable to work in for hours at a time. Now doctors may use these awful outfits to protect themselves. Will doctors say they are still cumbersome and uncomfortable?

Postoperative infection continues to plague little old ladies with hip pinnings. Why? Infectious agents are carried into the operating room. Some hospital architects have planned surgeries that do not have doors opening directly into the operating room. The crew must go through two or more 'clean' rooms to reach surgery.

Sweat, hair, nose droppings, gloves that are permeable, gowns that are 'sterilized,' hands, poorly prepared patients, tools, instruments, dressings, sponges, all the things that are presumed to be sterile but are not. Some of the most dangerous carriers of pathogens are plastic tubing, suction devices, pulmonary aids and basins, slop buckets, and cleaning materials. But most of all, the people working in the operating room suite are carriers, from the janitor to the cardiovascular surgeon.

The operating surgeon must adhere to aseptic technique, and all members of the surgery crew must. The hospital alone is responsible for the safety of the plant and the supplies in it. Sterilization of supplies is a hospital responsibility. Safe use of sterile supplies is the responsibility of the surgeon and his assistants. Gram negative bacteremia following orthopedic surgery or any surgery which does not involve opening the abdominal cavity is almost invariably the fault of the surgeon and his crew, and the hospital.

Handwashing according to all studies ever made is the single most important protection against infection known. Handwashing is simple, easy, and available in all hospitals. Yet, I have watched nurses go from one patient to another without washing their hands. Today they wear gloves to protect themselves from AIDS. They do not change their gloves any more often than they wash their hands. I have watched pediatricians enter isolation nurseries in their street clothes, handle infants, and go into the 'clean' nursery without so much as blinking. You think this is impossible? Then explain how infants pass infections from one to the next when they are in isolettes and incubators. Infants do not give the infant in the next isolette their diarrhea. The nurse does. The doctor does.

Lawyers will encounter surgeons who in deposition say that infectious agents were introduced from the patient's skin. The lawyer should simply slap his thigh and yell, 'Piffle.' Preparation of the patient for surgery includes, or should include, careful cleansing and disinfection of the skin, hair and exposed parts of the patient. Preparation of the patient need not include shaving unless surgery is in an area where hair will be in the way. Nicking of the skin because of shaving leads to infection because the integrity of the skin is broken. But scrupulous cleansing of the skin of the patient is required for safe surgery.

Infection following bowel surgery is almost expected. Enterobacteriaceae belong in the gut. They dwell there, doing their normal day's work. They do not belong in an abscess alongside the metal plate in an old lady's hip.

The lawyer reviewing records should look for careful examination of the blood, the wound and abscesses for the responsible pathogen prior to the start of antibiotic therapy. Many surgeons start the patient off on dangerous antibiotics without first determining if they are necessary for the patient's safety. Many of the gram negative inhabitants of the bowel may be controlled by penicillin, ampicillin or the cephalosporins. Surgeons do not have to use the aminoglycosides. Even the old sulfonamides can be used pre-operatively.

For reasons known only to themselves, surgeons will choose a new unknown antibiotic over well known antibiotics for prophyllaxis. Some say that medicines like penicillin are 'too dangerous.' What they mean to say is that they do not know how dangerous the medicine they use is, but they do know after almost thirty years of use, what dangers lie in the use of penicillin. Penicillin's risks are well known and can be recognized and treated.

In the days following surgery any infection found or suspected must be identified and treatment begun at once to prevent death. Nurses' graphs of vital signs will be the first good demonstration of infection. If their charts show a steady rise in temperature, increasing pulse rates, and declining or rising blood pressures with no apparent cause, the lawyer must suspect infection. If nothing is done (or charted as done) to learn the cause of these signs, and the patient later becomes comatose or unconscious, the lawyer will have a good case. Untreated infection in the postoperative patient ends in death.

The lawyer should look for laboratory work ( cultures and sensitivities, urinalyses, and blood studies) directed toward identifying the cause of the infection. He should find a culture which isolates the pathogen responsible, and he should find a sensitivity report which lists the antibiotics which are effective against that pathogen. Repeated 'negative' cultures in the face of clinical signs of infection are not acceptable, and the lawyer should look for attempts to obtain better specimens for laboratory examination before blind treatment with antibiotics.

Gram negative and gram positive are simply the two large categories of bacteria that can be distinguished by their reactions to Gram's stain. The positive bacterium stains violet and the negative bacterium stains red. Usually anaerobic bacteria, streptococcus, and staphylococcus are gram positive, and the enterobacteria are gram negative.

Figure 5-1 is a sample of a culture and sensitivity report. At the bottom of the sensitivity report will be listed all the antibiotics effective against the pathogens identified. The lawyer should see that the least offensive but effective antibiotic was chosen by the doctor. Later, repeated culture and sensitivities must be run to establish the effectiveness of the treatment.

Doctors like to talk about 'sterile abscesses.' Poppycock again! Foreign body response can produce an 'abscess,' but by definition an abscess is an encapsulated collection of pus. Pus is an accumulation of dead cells and includes dead white blood cells. If the physician obtains only dead cells on the tip of his swab, the culture in the laboratory will be 'negative.' The infection still remains at the site of the abscess. The physician must obtain a specimen free of pus.

I have observed nurses, anaesthesiologists, technicians, and all employees working in surgery leave surgery, and return without washing their hands. They slide their face mask up to their mouths without a blink and start back to work. I have watched nurses and anaesthesiologists whose duties give them a break, leave surgery, have a cigarette, and return without washing their hands or changing their surgical face masks. I have seen surgical employees, central supply employees, doctors, and anaesthesiologists leave the operating suite while wearing their greens, go to the employee cafeteria, eat, return to surgery in those same greens, tug their mouthpieces up, and begin another surgery or sort sterilized goods, again without washing their hands. Hard to believe? Spend some time in the hospital. Observe what calloused employees and physicians think of sterile technique.

No one should ever eat anywhere in his greens. No one ever should be seen wandering outside surgery or central supply with a face mask flapping under his chin. No one. Not ever. Never, never. If during your inspection tour of a hospital you observe greens in the cafeteria, you know aseptic technqiue is not practiced in that hospital.

If the person tells you he is wearing greens just because he wants to, and that he does not work in a sterile area, tell him to get back into his proper work clothes.

Postoperative hospital infection is the fault of doctor and hospital together, and both must be named as defendants. The hospital provides the pathogens, the nurse transports them, and the doctor introduces the pathogens to his patient.

Never forget: someone took the germs to the patient. Infection alone may cause any of the surgical complications discussed in this chapter.

Blood clots in open air. It is supposed to. Blood will clot at any break in the vascular system. Microclots form at the surgical site, and move to peripheral or remote sites where they may accumulate and form larger clots. These clots ( thrombi) may move again ( emboli) to settle in a narrow vessel and obstruct that vessel. Small migrating clots are an inevitable result of surgery, and are always a danger to the patient. If the patient lies motionless in her bed after surgery, clots will migrate downhill to large veins where they will gather in pooled or motionless blood. When the patient gets up at last, muscular contraction of the lower limbs pushes blood and clots in the veins of the thigh through the large veins of the abdomen. Clots move readily through the large veins and back to the narrow pulmonary and coronary vessels.

Lawyers may have clients whose loved one had a ' stroke' after surgery in the hospital. These strokes may be the result of emboli which were harmless in the thigh, but moved up to the brain after the patient went back to her bed on the nursing floor. Sometimes clots will move to the fine vessels in the kidney, and here they cause oliguria, or the failure to produce urine. Or, clots may wander to the liver and cause jaundice.

In the records of patients for whom emboli are expected (those patients who have surgery on the large bones, vascular surgery, thoracic surgery) the lawyer should look for notes which describe simple preventive measures such as elastic stockings, early movement of the patient, deep breathing exercises, passive manipulation of limbs and prevention of pooling blood by position changes in bed. If signs of emboli appear and are recorded in the nursing notes (breathlessness, chest pain, ataxia or aphasia, deep thigh pain, swelling of the leg, hypotension, air hunger), the lawyer should see how prompt medical response by the doctors is.

I discussed acute respiratory failure earlier as a complication during surgery. Here we look at it as a postoperative complication.

Some hospitals move patients back to nursing units directly from surgery. This practice has been abandoned in modern hospitals.

Hospitals have departments called recovery rooms devoted to the aftercare of surgical patients. The post-anaesthesia recovery room ( PAR) is the domain of the anaesthesiologist.

Usually acute respiratory failure following surgery occurs in the PAR. The patient aspirates, chokes and gags, becomes hypoxic, and then anoxic. We have talked about that earlier.

Many postoperative patients may have a day or two of mild jaundice. The doctor should be aware of this, and his notes should reflect his concern. He should not dismiss the jaundice as unimportant, and he should not ignore it. Blood tests for bilrubin should be run until levels fall to normal.

Gasses used in anaesthesia may cause jaundice. Halothane has been associated with serious jaundice in many patients, and has been shown to cause permanent liver damage in some. Other gasses are less frequently involved, or do not appear to cause permanent damage.

Jaundice may be life-threatening in the postoperative patient. Jaundice may be the only early sign of transfusion-carried infection or blood type mismatch.

If a lawyer has a client whose loved one died of hepatitis after abdominal surgery, the lawyer may have a good case. Jaundice following abdominal surgery may be the result of bile leaks into the peritoneum, or of injury to the liver because of traumatic surgery, hemorrhage or hypoxia. Blood in the peritoneum may also cause jaundice, or the hepatic arteries or the bile duct may have been ligated in error. Jaundice will follow cardiac arrest, and is a common result of disseminated intravascular coagulation.

By far the most common cause of postoperative jaundice is serum hepatitis, or hepatitis caused by the infusion of infected blood. Serum hepatitis (Type B) may not become apparent for several weeks after surgery. Viral hepatitis (Type A) is usually diagnosed within ten to fifteen days, and may also be a postoperative complication.

If a patient has multiple blood transfusions followed by a late, persistent jaundice, she most likely has had a reaction to her transfusion, and the reaction is probably Type B hepatitis.

According to the law in most states, transfusion of blood and blood products is a service and not a sale, and therefore negligence must be shown. The successful lawyer will attack the handling of the blood by the blood bank as well as doctor and the hospital.

The American Blood Bank Association has established standards for blood banks. Lawyers may obtain current standards by writing to the association.

The lawyer should be aware that any postoperative patient is more vulnerable to insults such as liver injury than a normal person. He should search the hospital record for laboratory studies of liver function in any patient who has jaundice. If these tests are lacking, he has a strong case against the doctor, and probably against the hospital.

Wound breakdown includes wound dehiscence or the reopening of the wound, and failure to heal because of infection or foreign materials in the wound. Surgical wounds that open after about three or four days may indicate negligent closing of the wound by the surgeon.

Sutures will pull away from damaged tissues whether the tissues are damaged by disease or medical negligence. Any infected tissue which is separated by surgery will be slow to heal, or may fail to heal. Thus, the lawyer should not consider the failure to heal as grounds for a cause of action in a patient whose injuries were dirty and filled with debris. For instance, motorcyclists' injuries are often laden with dirt and grease and become infected almost immediately. Despite careful debridement or cleaning of foreign matter from these wounds, healing will be slow, and infection likely.

Any surgical wound which fails to heal should alert the lawyer to look for signs of postoperative infection, as outlined above.

Unless serious scarring results, superficial infections at the suture line are rarely good cases for a lawyer to take on. Sometimes these minor infections will drain for weeks from a sinus that empties a deep abscess, and if the patient is disabled, and the surgeon appears not to take the infection seriously, a lawsuit might be worthwhile. If the infection breaks free of the localized inflammation, then, of course, the case should be pursued.

Urinary failure is the inability to produce urine in the kidneys, or the failure to discharge urine to the outside. Both kinds of urinary failure may end in death if uncorrected.

The kidneys produce urine at a rate of about thirty to fifty cubic centimeters an hour in the normal person. Various illnesses alter that rate somewhat without permanent damage to the patient. If the kidneys are subjected to microemboli which clog the fine arteries, the kidneys will fail to produce urine. Improper blood transfusion will block the kidney. Cardiac arrest is a common cause of kidney failure in the postoperative period. Cardiac arrest with hypoxia or anoxia, resulting in metabolic acidosis, will produce tubular necrosis (death of the glomeruli). Bacteremia is a common cause of kidney failure. The patient whose kidneys have been injured will demonstrate a slowing of output over the first hours after surgery, and may at last cease to produce urine at all. The surgeon must call in urologic consultation at once.

Sometimes blood transfusion or intravenous fluids will correct the low urine output. The lawyer should search the doctor's orders for diuretics that may indicate the physician recognized kidney damage. If one of the fast acting diuretics fails to excite the production of urine, then serious damage to the kidneys must be assumed. If the injury to the kidney is profound, the patient must be put on dialysis. Dialysis sometimes enables the kidneys to recover in a few days. Consultation by a competent urologist is urgent.

Oliguria or failure to produce urine in the hours immediately following surgery is often evidence the kidneys were damaged during surgery. The most common cause of total kidney damage is cardiac arrest, and the lawyer must begin to search for other indications that arrest occurred during surgery. If he finds no hint of cardiac arrest (no pulmonary edema for instance), then he should examine the blood transfusion records for signs of error (incompatibility), and finally the laboratory records for signs of disseminated intravascular coagulation (DIC). (See section 5.7.)

DIC is a danger to the kidneys because micro-emboli block the glomeruli or the renal arteries.

We shall discuss urinary problems which are the result of doctor-only error in Chapter Eight.

Other injuries which occur in surgery are often the result of the surgeon's or the anaesthesiologist's negligence. Included among them are burns, fractures, broken teeth, hematomas at injection sites, various injuries following 'spinal' taps for analgesia or examination, and others. Some injuries may be attributable to surgeons, but some are directly the responsibility of the anaesthesiologist, and so many of these injuries will be included in the chapter on anaesthesia.

Burns as a complication of surgery are often the result of improper grounding of devices. Most common among these is the cautery, or Bovie. A wide, thin metal plate, called a ground plate, is slipped under the buttocks of the patient. If the ground is not spread widely over the skin, or if a substitute is used, for instance an electrode from an EKG machine, electric flow back to the device is hindered. The surgeon will think he does not have sufficient current at his cutting blade. He will increase the voltage to the device, and eventually enough current will flow to the knife to make a spark. It is the sparking electricity which burns the patient.

The lawyer should know that extremely low voltages and current are enough to burn the bowel, or any of the inner organs of the body. Skin can take a much larger jolt than wet, mucus-lined organs.

Laparoscopic surgery, once restricted to female surgery, or in orthopedics as arthroscopy', is becoming increasingly popular for all kinds of surgery. The now widespread Surgicenters are almost entirely devoted to laparoscopic surgeries. Surgeons working in these centers specialize in surgery for all kinds of conditions and have become adept at the work. They train for hours and become so accustomed to working with long instruments in tiny spaces that they can work while watching their instruments on a TV monitor.

The malpractice found in laparoscopic work is generally caused by surgeons who are not used to working on what is a remote view of the organs being cut. Also, by their inability to control the devices used in the surgery.

Some of the patient injuries may result from puncture of nearby organs, notably in female surgery, the large intestine or the bladder. Many more are caused by electrical energy burning tissue that happens to touch the tube through which instruments are passed, or even by poorly controlled instruments, such as a knife.

The lawyer should study laparoscopic technique before deposing a doctor who is being sued because of injury during laparoscopic surgery. Because this surgey is becoming so common, many patient injuries may be expected. Lawyers will see more and more patients whose injuries resulted from poor maintenance of equipment and from untrained surgeons who did not know they were injuring the patient.

The surgeon himself may not see a bleeder, and may close his operative site before assuring himself that all bleeders are stopped. Some surgeons depend on a clamping of a bleeder to stop blood flow, and often the bleeding breaks through after the patient is sent home.

Sometimes when the patient is lax because of the depth of anaestghesia, the trocar or instrument through which the surgeon's tools are passed, will lacerate large organs. This wil occur when the surgeon is careless about locating large organs or vessels before he enters the abdomen.

One of the dangers for Surgicenter patients is that he/she will be sent home before damage occurs or can be determined.

Laparoscopy for tubal ligation has become a fairly common source of intestinal burns. The instruments used to cauterize the fallopian tubes or to 'fulgurate' the cut ends may burn adjacent organs, and sometimes even the gut.

The result of surgical burns within the abdomen is always infection. The infection may not appear for several days after the burn, and sometimes the patient has gone home before trouble starts. Fever, malaise, and finally all the signs of acute bacteremia develop. X-ray demonstrates gas free in the peritoneum, and when the patient is opened, the surgeon finds the bowel (or other organ) perforated and its contents spewed into the peritoneum. The reason the symptoms are late in appearing is that the burn may be small, pinprick size, or the burned tissue may hold until it becomes necrotic and sloughs away and allows the contents of the bowel to contaminate the peritoneum.

Delay in diagnosis is the real culprit, but the lawyer must name as defendants the hospital or surgicenter, the surgeon, the anaesthesiologist, and the manufacturer of the cautery device: the hospital for poor maintenance and lack of supervision of its employees; the surgeon because he failed to recognize the trouble at the time of surgery; the anaesthesiologist because he did not supervise the use of the equipment; the manufacturer because it did not insist on the proper precautions in the use of the instrument, and because it did not provide proper instruction in its use.

Other burns of the patient during surgery may result from improper use of warming blankets. Here again the lawyer must be careful to name all defendants. Some patients are sensitive to chemicals in plaster casts and may receive burns under freshly applied casts which produce strong alkalis as they dry. Patients may be burned by disinfectants used to prepare the skin or the instruments used at surgery. Burns can result from heating pads, lights, scopes and other devices commonly used in operating rooms.

Lawyers should not depend on res ipsa loquitur, although that doctrine ought to apply. The lawyer should obtain records of maintenance for equipment suspected of causing the burns. He should ask for training manuals, manufacturer's instruction manuals and requisitions for repair. He should depose nurses and surgical technicians, and if necessary the storeroom or central supply persons responsible for care of the equipment. The biomedical or bio-engineering technician may be a good person to depose.

Surgeons may break bones, cut the wrong limbs, remove competent organs, pierce organs with instruments, forget sutures, lose needles, break instruments, cough and sneeze, and make all kinds of simple mechanical mistakes and blunders that injure patients. The notorious sponge left behind is always a cause of action. The lawyer must think about fatigue, carelessness and lack of training whenever he takes on a malpractice case involving a surgical procedure. Other injuries may be the hospital's responsibility only, and in the chapter on hospitals, we shall explore them.

However, surgery need not precede respiratory failure. Uncorrected atelectasis, aspiration, bronchial irritation, emboli, infection, and over-narcotization can all lead to acute respiratory failure. Medical department patients who are allowed to remain bedfast, especially in the Fowler's position, may pool blood in the large veins. Pooled blood may begin the clotting mechanism and emboli may form. Premonitory signs should be recorded by nursing. Rapid shallow breathing, pallor, cyanosis of nail beds, gasping for air, inability to speak, irregular breathing; all may have been recorded by nurses. Sometimes the only clue in the records is later evidence of pulmonary edema.

The lawyer will find pulmonary edema (excessive fluid in the lungs) in most of the patients who where admitted as patients with infections, pneumonia, bronchitis, lung abscesses, digestive diseases, strokes and other illnesses. Pulmonary edema may result from congestive heart failure. In patients whose lungs have been affected by heavy smoking, air pollution, or chronic illness, the added insult of respiratory impairment or emboli may hasten chronic disability. Most patients with no chronic lung disease will recover in time, but all patients who have suffered pulmonary edema will have prolonged recovery times varying from one to many months.

Defense lawyers will say the patient's congestive heart failure had been the cause of the edema.

The plaintiff's lawyer, must show by his review of the entire hospital records, principally the history and physical, that the patient had no history or signs and symptoms of congestive heart trouble or pulmonary disease. The lawyer will find that he needs to develop a complete and accurate medical history for his client in order to disprove the usual defense tactic of blaming the patient for her misfortune. He must show from the records that it was the hospital failure to monitor the patient that led to her pulmonary edema.

The admitting physician's review of systems will often provide the information necessary to dispel the defense's congestive heart failure story. If the heart and lungs were clear, rhythms normal, no murmurs, no congestion, breath sounds good, no edema of the limbs, no wheezing, rasping, faintness on exertion.. .where did that congestive heart disease come from?

Pulmonary edema follows excessive administration of blood and blood products, and of intravenous solutions. The mechanism is a simple drowning. The patient's pulmonary capillaries become engorged with fluid which escapes through the walls of the alveoli. The usual treatment is fast acting steroids or diuretics to rid the circulatory system of the excess fluid.

The results of excessive fluid administration often resembles 'shock lung' from infection or pulmonary edema. Shock lung is one of the end results of pulmonary edema, and is a frightening, sudden cause of patient collapse in surgery or after surgery. Shock lung may follow trauma of any kind, or infection.