When is enough enough? - anaesthetist's appeal fails

In our blog on 19 May 2018 we reported on a decision in which an orthopaedic surgeon and anaesthetist were both found negligent for failing to abandon surgery prior to the plaintiff suffering paraplegia.
The patient suffered from Noonan Syndrome, a genetic disorder that prevents development of parts of the body, and which had resulted in severe breathing restrictions. His prognosis was grave and a decision was made for him to undergo a two stage operation intended to relieve pressure on his chest cavity. The first operation on 13 November went uneventfully but whilst the second operation was to be carried out 10 days later, pneumonia in the left lung caused the surgeon to bring the operation forward to the evening of 17 November.
The second operation involved carrying out a spinal fusion. In circumstances which the trial judge described as "patently a distressing and fraught intra-operative emergency", about 2 hours into the operation the patient began suffering from very high CO2 levels. The patient's metabolic state deteriorated and with continuing high CO2 levels resulting in profound acidosis, his blood pressure began to fall causing the anaesthetist to believe the patient was going into cardiac arrest. The surgeon agreed to close up and the patient was moved from the prone position, producing an immediate resolution of the respiratory problems. However the patient was left with paraplegia.
The trial judge found that both the surgeon and anaesthetist were negligent for failing to bring the operation to an end before acidosis had caused the damage to the spine.
Both appealed the decision. The surgeon’s appeal was unanimously upheld but a majority dismissed the anaesthetist’s appeal.
In relation to the surgeon, the Court concluded that it was the anaesthetist’s role to monitor the plaintiff’s condition intra-operatively and the surgeon was entitled to rely upon the anaesthetist to alert him to any concerns with the plaintiff’s condition. It was not for the surgeon to make an inquiry of the anaesthetist in the absence of being aware of any issues with the plaintiff’s condition.
The Court found that for a period of 30 minutes while the patient was suffering from high CO2 levels, the surgeon was not made aware of the problem. In the absence of the surgeon being aware of any issue with the patient’s condition there was no obligation on him to make an inquiry about the patient’s carbon dioxide levels. The failure to direct termination of the operation during that period was not due to any fault on the part of the surgeon in the absence of the surgeon being aware of any issues with the carbon dioxide levels. When the anaesthetist did advise termination of the surgery was required, the surgeon promptly did this.
In relation to the anaesthetist, the Court accepted that whilst he faced a difficult intra-operative decision, it was not one which required an instantaneous decision, further information or advice. Metabolic decline was evident and every available step had been taken by him to counter it. The surgery at this time was expected to last for another 2-4 hours and the decision to allow the surgery to continue for 30 minutes after the anaesthetist had sought help from 2 experienced anaesthetists and had no further available means to correct the decline, was an error in clinical judgment and a breach of the anaesthetist’s duty of care to the patient.
MacFarlane JA held that the anaesthetist was required to assess and respond to the immediate danger to the patient rather than the more remote risks that could eventuate if the operation was not completed, because the duty as principal anaesthetist was to protect the patient’s well-being whilst the operation was in progress.
The anaesthetist's defence that he acted in a manner which at the time was widely accepted in Australia as competent professional practice failed in two respects. Basten JA found that whilst there was evidence that the anaesthetist had acted competently, that evidence did not go to sufficiently to some critical aspects of the surgery. Furthermore, the evidence would have been more persuasive if the expert opinion had dealt with conflicting issues in a reasoned manner.  MacFarlane JA rejected the defence because he was not satisfied that the evidence relied upon properly identified a standard or ‘practice’. Absent evidence as to what the ‘practice’ was, the judge was unable to find that the conduct of the anaesthetist was widely accepted in Australia, at the time, to be competent professional practice.
The defence of inherent risk was also raised by both doctors at the trial and on appeal. At first instance and on appeal, the Court held that the defence failed as the risk which materialised, the damage to the spinal cord, could have been avoided by the exercise of reasonable care and skill.
This decision is important so far as delineating the responsibilities of a surgeon and anaesthetist intra-operatively. It is clear from this decision that whilst surgeons are regarded by the Courts to be the head of the team and to have the ultimate authority to make decisions regarding the continuation of the surgery, they are entitled to rely on other team members to perform their duties. Further, in the absence of the surgeon being reasonably aware of any issues with a patient’s condition intra-operatively, there is no obligation on them to make any inquiry of the anaesthetist as to the patient’s condition. So far as anaesthetists are concerned, this decision highlights the importance of advising surgeons of any concerns about a patient’s condition intra-operatively and in seeking advice from the surgeon in relation to any ramifications to the patient from a surgical perspective when making a decision whether to advise on the continuation of the surgery.

Post by Karen Kumar and Cameron Leaver 

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