In general, my malpractice cases consist of about 80% for the defense and about 20% for the plaintiffs. This imbalance isn’t because I prefer to defend my colleagues (which I do, of course, but it’s not the reason), but rather that’s just the approximate ratio of cases that come to me. Maybe it’s just that the plaintiff cases go to putzes who are known to plaintiff lawyers because they’ll say anything for money. I have nothing against plaintiff cases – I feel strongly that with my background as a pediatrician (and a dad), I should advocate for  patients and their families  that have been wronged by negligence. On the other hand, one of my favorite things to do is tell a plaintiff’s attorney they have no case. This usually occurs when a surgeon’s attorney hires me to testify that the anesthesiologist missed a case of postoperative MH when it was really just missed surgical sepsis. But, one of my least favorite things to do is tell a defendant’s attorney that I can’t defend their client, as happened here…

This case illustrates the classic Swiss Cheese model of patient harm, where a really bad event resulted when several different unfortunate and preventable events all happened to one patient. It involves an 8-year old obese female (>99%tile for BMI) whose pediatrician strongly suspected sleep apnea and sent her for an evaluation from a pediatric sleep medicine specialist. The patient underwent a sleep study, which showed an apnea-hypopnea index (AHI) in the 80s (>24 is classified as severe by the American Academy of Pediatrics) and a low SpO2 < 80%. The pulmonologist wrote in his report that it was one of the worst cases of OSA he’s ever seen. So he sent her home instead of admitting her to the hospital for an emergency tonsillectomy and further evaluation, like we do her at CHOP (Swiss Cheese Hole #1). The patient was then seen by an ENT who scheduled her for T&A….as an outpatient (Swiss Cheese Hole #2) at a free-standing surgery center (Swiss Cheese Hole #3), as the last case of the day (Swiss Cheese Hole #4). On the day of surgery, in the anesthesiologist’s pre-op evaluation, there’s no mention at all of any sleep apnea. In fact, the box next to the word “Snoring” is left unchecked (Swiss Cheese Hole #5). The patient receives a perfectly normal anesthetic for T&A with the usual amount of opioids (Swiss Cheese Hole #6), and is given more opioids for pain in the PACU (Swiss Cheese Hole #7). She’s then sent home with a prescription for Vicodin (Swiss Cheese Hole #8) and, well you’ve guessed the outcome by now…found dead several hours later.

Obviously, there’s no defending so many clear violations of safety and standard of care in one patient. A few similar types of cases were summarized by Charlie Cote is his great article in A&A found here. Not much more to say about this case but, let’s summarize the indications for inpatient overnight stay for tonsillectomy, as taken from the AAP publication mentioned above and some other sources:

• Age < 3 years;
• Severe OSA (AHI>24, we use 10 at CHOP);
• Nadir SpO2 < 80% on sleep study;
• Cardiac complications from OSA (eg, RVH);
• Failure to thrive;
• Obesity;
• Craniofacial abnormalities;
• Sickle cell disease;
• Trisomy 21 (Down Syndrome);
• Neuromuscular disorders;
• Current respiratory infection;
• Any other significant comorbidity.

Post-script: after relaying my thoughts to the defense attorney, I was not contacted by her again, so I don’t know the actual outcome of the case. These physicians should consider themselves lucky if they only settled, instead of being brought up on charges of negligent homicide. I know these are strong sentiments, and I also know that many places throughout the country consider it the standard of care to do these high-risk patients as outpatients in a free-standing ASC, but as anesthesiologists (and CRNAs too) we have an obligation to keep up with experts’ standards and guidelines and not succumb to the pressures of their own group or the surgeons they work for. We also need to follow our moral compass in advocacy for children and their families.