Surgeon Liability

The following discusses the legal relationship between surgeons and nurse anesthetists and some of the common misconceptions that arise in this area. Please bear in mind that this information does not constitute legal advice or a legal opinion.  

The Nature of Surgeon Responsibility

While surgeons commonly order nurse anesthetists to give anesthetics, surgeons have no affirmative obligation to control the substantive course of the anesthetic process. To the contrary, a surgeon may rely upon the nurse anesthetist as the anesthesia expert. A nurse anesthetist uses independent judgment in determining the appropriate kind of anesthetic to be administered, as well as types of drugs and dosages. Merely requesting that a nurse anesthetist provide an anesthetic is not in itself an act of "control" that will necessarily make a surgeon liable for a nurse anesthetist's acts.

There are many cases which stand for the proposition that surgeons are not automatically liable for CRNA actions. In addition, surgeons do not escape liability when working with anesthesiologists. As discussed below, courts typically apply the same standard when judging whether surgeons are liable for the acts of an anesthesia provider, regardless of whether the provider is a nurse anesthetist or anesthesiologist.

Below are links to several articles by the AANA's general counsel concerning liability issues involving nurse anesthetists and surgeons. As these articles demonstrate, in determining whether a physician is liable for the negligence of a nurse anesthetist with whom the physician works, the status of the anesthesia administrator is not the relevant factor. Rather, courts examine whether the degree of control the physician exercised over the anestheisa administrator, regardless of whether the administrator is a nurse anesthetist or an anesthesiologist.

A physician is not automatically liable when working with a nurse anesthetist; nor is the physician immune from liability when working with an anesthesiologist. Courts have held surgeons liable for the negligence of anesthesiologists when the surgeons had control of the anesthesiologists' actions. In Schneider v. Einstein Med. Ctr., 390 A.2d 1271 (Penn. 1978) and Kitto v. Gilbert, 570 P.2d 544 (Colo. 1977), the courts found the physicians liable for the negligence of anesthesiologists because the physicians were in control of the anesthesiologists' actions. The question, as in cases of a physician working with nurse anesthetists, is whether the physician was in control of the acts of the anesthesiologist. This is a factual inquiry and not a conclusion of law.

There are many cases in which courts have found that the surgeon was not in control of the nurse anesthetist and, therefore, not liable for the negligence of the nurse anesthetist. E.g., Cavero v. Franklin Benevolence Soc'y, 223 P.2d 471 (Cal. 1950); Fortson v. McNamara, 508 So.2d 35 (Fla. 1987); Franklin v. Gupta, 567 A.2d 524 (Md. 1990); Hughes v. St. Paul Fire and Marine Ins. Co., 401 So.2d 448 (La. 1981); Kemelyan v. Henderson, 277 P.2d 372 (Wash. 1954); Parker v. Vanderbilt, 767 S.W.2d 412 (Tenn. 1988); Pierre v. Lavallie Kemp Charity Hosp., 515 So.2d 614 (La. 1987); Thomas v. Raleigh Gen'l Hosp., 358 S.E.2d 222 (W. Va. 1987); Sesselmen v. Mulenberg Hosp., 306 A.2d 474 (N.J. 1954).

Moreover, numerous cases hold that mere supervision or direction of a nurse anesthetist is insufficient to hold a physician liable for a nurse anesthetist's negligence. See, e.g., Sesselmen v. Mulenberg Hosp., 306 A.2d 474 (N.J. Super. Ct. App. Div. 1973) (error for trial court to instruct that obstetrical surgeon could be liable for nurse anesthetist's negligence where obstetrician never exercised control over nurse anesthetist and nurse anesthetist merely received obstetrician's instructions concerning the work to be performed); Baird v. Sickler, 69 Ohio St.2d 652 (1982); Foster v. Englewood Hosp., 19 Ill. App. 3d. 1055 (1974); Elizondo v. Tavarez, 596 S.W.2d 667 (Tex. 1980); Whitfield v. Whittaker Mem. Hosp., 210 (Va. 176 (1969).

It is clear from the case law that in order for a physician to be liable for the acts of the anesthesia administrator, the physician must control the administrator's actions and not merely be supervising or directing the administrator.

In a January 1988 report of the Center for Health Economics Research (CHER), an independent Boston-area based research organization that analyzes and evaluates health-related policy issues, CHER concluded that "both legal doctrine and case history (as reviewed by the AANA and ASA) do not indicate a tendency on the part of the courts to hold surgeons liable more often when they work with nurse anesthetists than with anesthesiologists."

In light of the above, it is erroneous for anyone to state or imply that surgeons are at greater risk when they work with nurse anesthetists rather than anesthesiologists. 

Summary
Courts apply the same standard to judge whether surgeons are liable for the acts of the anesthetist whether the anesthetist is a CRNA or an anesthesiologist.
 

If you have questions or comments about this topic, please contact the AANA's Professional Practice Division at practice@aana.com or (847) 655-8870. Please bear in mind, though, that this information and the articles below summarize the pertinent information we have concerning surgeon liability. We are not able to offer customized legal guidance for your particular situation.  In addition, for legal advice concerning how courts in your state have ruled, or may rule on a specific matter, you will need to consult local legal counsel.  

Links to Articles