Con: the anesthesiologist is not liable if intraoperative recall occurs.

M OST individuals eventually come to terms with the fact that there are few, if any, guarantees in life. Recently, it has become popular for many people, and especially American politicians, to profess that health care should be guaranteed for all. It is interesting to note that the universal provision of essentials more vital to human survival, including food, clothing, and most notably, shelter, have been left largely unaddressed. Though we have not encountered anyone who disagrees with the prioritizing of these essentials over health care, we agree that health care for all would be nice. Anesthesiologists must rank their priorities during patient care. A typical anesthesia goal hierarchy would most likely include at the top of the list the avoidance of patient death, brain or neurologic injury, myocardial infarction, and other irreversible major organ damage. Amnesia for all patients undergoing general anesthesia and surgery would be nice too. De-emphasis of such a hierarchy of priorities as irrelevant to everyday anesthesia fails to recognize or acknowledge the stress inherent to the tasks of our specialty. Conversations with colleagues support this “anesthesia goal hierarchy” as self-evident and logical. Others, however, do not agree and have argued strongly that failure to “render a patient insensible to pain and emotional stress during surgical, obstetrical, and certain medical procedures” is a “transgression of our first and most important aim.“’ This position was expressed in response to a report2 and an accompanying editorial3 that suggested and supported the notion that lack of awareness might not always be achievable (and was therefore at times acceptable) in trauma patients. Is the anesthesiologist liable when awareness occurs? For the purpose of this discussion, awareness or “explicit memory” occurs when, after a general anesthetic, a patient recalls one or more intraoperative anesthetic or surgical procedures or events. The answer to this question is not simple. As we have all unfortunately come to know, proof of liability usually requires that a patient’s injury was caused by a health care provider’s negligence. Injury, traditionally conceived of as being physical, may today be in part or entirely psychological or emotional. Negligence is present if an anesthesiologist did not administer a standard of care that a competent body (not necessarily a majority) of anesthesiologists deems appropriate. Proving negligence is most often the responsibility of the plaintiff. The burden of proof can, however, be shifted to the defendant anesthesiologist via the doctrine of res ipsa loquitur. In the case of awareness under anesthesia, it would thus be argued by the plaintiff that a patient does not ordinarily experience awareness unless there is negligence. United States courts have been hesitant to apply res ipsa loquitur to disputes over the choice of medical treatments4 Nevertheless, anesthesiologists might be required to defend the care they provide under this doctrine.5 Proving negligence may also not be required if medicolegal action is based on the argument of a breach of contract. Patient fear of awareness during surgery under general anesthesia is frequent and can be found in up to 50% of patients preoperatively.6 It is, however, rarely specifically discussed. Comments such as “don’t worry, you won’t feel anything,” which are intended to reassure, can underlie liability based on a breach of contract argument. Liability may also be based on a lack of informed consent4 A patient may sue on the grounds that he or she was not told of and did not consent to the possibility of awareness. Should we frighten all patients with such information? Most of us are selective in choosing which patients we discuss the possibility of awareness with. The overall incidence of awareness is unknown, but is most frequently stated to be approximately 1%.7 Studies suggest an even higher incidence of awareness in obstetrical (7% to 28%), major trauma (11% to 43%), and cardiac (up to 23%) surgery.7 This information points us toward the patients we should inform about awareness. Yet these same patients are undergoing necessary, urgent, or emergent procedures in which informed consent concerning awareness, because it is immaterial to the decision to proceed, has been viewed by the courts as unnecessaty.8 In addition, few of us believe it wise to confront our sickest cardiac patients with the prospect of awareness and risk inducing further stress and possibly angina. The courts have agreed that such stress should not be inflicted (Nishi v Hartwell 1970).4 Certainly, liability, and more specifically negligence, may exist in some circumstances of awareness during general anesthesia. In the United Kingdom, for example, the practice of providing anesthesia for cesarean section with 3 to 5 mgikg of sodium thiopental during a rapid-sequence induction followed by 50% nitrous oxide in oxygen with or without 0.5% halothane until delivery has led to a number of medicolegal actions based on awareness.8,9 The incidence of awareness with these techniques, even when low concentrations of a potent inhalation agent are administered, approaches 10%.‘OJ1 If the anesthetic record does not indicate the necessity for “light anesthesia,” by the presence of significant hypotension, for example, a medicolegal defense of and justification for administering such an anesthetic could be difficult. Equipment failure that results in inadequate anesthesia may also underlie negligence.t2 Many other factors (Table 1) have been cited as contributing to awareness, but few are clear-cut in terms of predicting awareness and/or implicating negligence. It is interesting to note that the occurrence of awareness, as a significant problem during anesthesia, coincided with the introduction of muscle relaxants into clinical practice in