CHAPTER 33
Medicolegal Issues in
Obstetric Anesthesia
Mark S. Williams, MD, MBA, JD • Joanna M. Davies, MBBS, FRCA
CHAPTER OUTLINE
LAWSUITS INVOLVING CLAIMS AGAINST
HEALTH CARE PROVIDERS
Importance of Effective Communication
Theories of Liability
Establishing Medical Malpractice
Establishing Lack of Informed Consent
THE LITIGATION PROCESS
Sources of Law
Initiation of a Lawsuit
Discovery
Trial
INFORMED CONSENT
Process and Documentation
Capacity to Consent/Mental Competence
Minor Patients
Consent for Labor Analgesia
REFUSAL OF CARE
Documentation
Conflicts Arising out of the Maternal-Fetal
Relationship
Childbirth is a natural process in which unexpected and
potentially severe adverse events can occur. Responses to
such events require timely and collaborative efforts
among all caregivers. Obstetric anesthesia providers have
a challenging role. Some women have high expectations
about the availability and effectiveness of anesthesia ser-
vices for labor and vaginal or cesarean delivery; these
expectations may be influenced by the experiences and
biases of family members and friends. By contrast, other
women may view anesthesia for labor as an intrusion
upon the natural labor process; yet, some of these women
may ultimately need or request anesthesia services. The
informed consent and decision-making process is funda-
mental to securing a woman’s understanding and support.
The effectiveness of this process is subject to cultural and
socioeconomic influences as well as the pain of labor.
The degree to which patients and their families possess
a realistic understanding of the benefits and risks associ-
ated with childbirth and obstetric anesthesia may influ-
ence the decision to pursue legal remedies in the event
764
DISCLOSURE OF UNANTICIPATED OUTCOMES
AND MEDICAL ERRORS
CONTEMPORARY RISK MANAGEMENT
STRATEGIES
LIABILITY PROFILES IN OBSTETRIC ANESTHESIA:
THE AMERICAN SOCIETY OF
ANESTHESIOLOGISTS CLOSED-CLAIMS PROJECT
Anesthesia-Related Injuries
Precipitating Events Leading to Injuries
Payments
Lessons Learned
PROFESSIONAL PRACTICE STANDARDS
POTENTIAL RISK MANAGEMENT PROBLEM
AREAS
Support Persons during Labor
Videotaping
of a real or perceived adverse outcome. Adverse outcomes
may profoundly affect families and health care providers.
Patients and their families must adjust to the reality of
an unanticipated adverse outcome as well as potentially
overwhelming and long-term financial costs. Physicians
and other caregivers also may be profoundly affected
emotionally by an adverse outcome. Medicolegal claims
associated with such events (regardless of the merit of the
claim) may compound such emotions, raise the costs of
liability coverage, and ultimately impact the availability
and overall cost of health care services.
Anesthesia providers should possess an understanding
of basic medicolegal issues and should proactively
embrace risk management strategies that support optimal
patient care and minimize both patient dissatisfaction
and the legal consequences of an unanticipated adverse
outcome. Insights and opportunities for promoting safer
and more effective anesthesia and obstetric care are
rapidly evolving and are gaining support among payers,
governmental agencies, and others.

LAWSUITS INVOLVING CLAIMS
AGAINST HEALTH CARE PROVIDERS
Importance of Effective Communication
The ability to effectively communicate information in a
manner that is understood by the patient is fundamental
to securing patient understanding and cooperation.
Lapses in communication may preclude obtaining truly
informed consent and may lead to patient dissatisfaction,
lapses in patient safety, and inadequate explanation of an
unanticipated adverse outcome.
Communication failures are frequent elements in mal-
practice claims; these failures include lack of informed
consent, poor patient rapport, language barriers, and
inadequate discharge instructions, among others.1 There
is an increasing recognition that limited health literacy
interferes with effective communication.2 Health literacy
is defined as the “degree to which individuals have the
capacity to obtain, process, and understand basic health
information and services needed to make appropriate
health decisions.”3 Providers should strive to adopt
methods and approaches that encourage patient engage-
ment, reduce risk, and improve treatment compliance.4
Theories of Liability
Every physician has a duty to provide professional ser-
vices that are consistent with a minimum level of compe-
tence. This is an objective standard based on the
physician’s qualifications, level of expertise, and the cir-
cumstances of the particular case.5 The failure to meet
this objective standard of care may give rise to a cause of
action for medical negligence. The standard of care for
medical practice is dynamic and changes as the profession
adopts new treatments and approaches for patient care.
Therefore, changes in accepted medical practice may
create additional professional obligations and, in turn,
additional legal responsibilities for physicians.
Although the specific medical malpractice laws vary
from state to state, several different causes of action may
be brought against a physician. Patients may sue for inju-
ries resulting from the provision of health care by using
one or more of three different theories (or causes of
action): (1) medical malpractice, (2) breach of contractual
promise that injury would not occur, and (3) lack of
informed consent.6 Plaintiffs (patients) commonly file
lawsuits that allege improper care on the basis of more
than one of these theories (e.g., alleging both a violation
of the standard of care and a lack of informed consent for
the medical treatment rendered). Medical malpractice
may involve failure to make the diagnosis, failure to
obtain informed consent, surgical errors, drug prescrip-
tion and administration errors, and other mistakes. For a
plaintiff to prevail with regard to a medical malpractice
claim, he or she must prove that the injury resulted from
the failure of the health care provider to follow the
accepted standard of care. The standard of care may be
defined as “that degree of care, skill, and learning expected
of a reasonably prudent health care provider at that time
in the profession or class to which he belongs…acting
in the same or similar circumstances.”7 This objective
33 Medicolegal Issues in Obstetric Anesthesia 765
standard is applied to the particular facts of the plaintiff’s
situation in a malpractice action.
A mistake or a bad result does not necessarily denote
negligence. Similarly, unless a physician contracts other-
wise with the patient (i.e., makes a promise of a specific
outcome), the provision of medical care alone does not
warrant or guarantee that an illness or disease will be
cured. A physician is liable for a misjudgment or mistake
only when it is proved to have occurred through a failure
to act in accordance with the care and skill of a reasonably
prudent practitioner.
Claims of medical malpractice must be filed within a
certain period after the alleged incident of medical mal-
practice. Most jurisdictions in the United States have
enacted statutes of limitations that are specifically
applicable to malpractice claims. Recognizing that a sig-
nificant time may elapse before symptoms or injury mani-
fest, many states have established discovery rules that
apply to situations in which the patient has no way of
knowing that the injury was caused by wrongdoing or
negligence. One example of an unknown injury is sterility
that is discovered only when the patient attempts to con-
ceive. Another example is the Rh-negative mother who
delivers an Rh-positive child and does not receive Rho(D)
immune globulin (RhoGAM). Such an injury would be
apparent only when the mother has another child with
Rh-positive blood. Other exceptions to—or extensions
of—the statutes of limitations might involve situations of
fraudulent concealment, an undiscovered foreign object,
situations involving long-term continuous treatment, and
issues involving infants or minors.
Establishing Medical Malpractice
In most malpractice cases, the following four elements
are required for proving medical negligence:
1. Duty. It must be shown that a duty to provide care
existed (i.e., a health care provider–patient relation-
ship existed). This may apply to situations in which
the provider renders medical advice over the tele-
phone to a patient never seen in the office or through
a “curbside” consult with another physician.
2. Breach. It must be shown that the health care pro-
vider failed to meet his or her duty to provide
reasonable care (i.e., the health care provider was
negligent).
3. Injury. It must be shown that the patient experi-
enced an injury that resulted in damages.
4. Proximate cause. It must be shown that the neg-
ligence of the health care provider proximately
caused the patient’s injury (i.e., there must be a
sufficiently direct connection between the negli-
gence of the health care provider and the injury
experienced by the patient).7
If any one of these elements is missing, the plaintiff
cannot establish medical malpractice. The plaintiff has
the burden of proof to establish each of these elements
by a “preponderance of the evidence.” This quantum of
proof means that a proposition is more probably true
than not true (i.e., > 50% certainty).
If the malpractice claim involves the issue of whether
a physician used a proper method of treatment, the
766 PART VIII Anesthetic Complications
plaintiff must use expert testimony to establish that the
defendant physician violated the standard of care and that
such violation probably caused the plaintiff’s injury.7
Expert testimony to establish how a reasonably prudent
health care practitioner would act under similar circum-
stances typically must be provided by an expert with the
same educational background and training as the defen-
dant physician.
In certain cases, the plaintiff may not be required to
present expert testimony to prove negligence, and the
burden of proof may shift to the defendant. This repre-
sents the doctrine of res ipsa loquitur (i.e., the thing speaks
for itself). This doctrine has the following three condi-
tions: (1) the injury ordinarily does not occur in the
absence of negligence, (2) the injury must be caused by
an agency or instrumentality within the exclusive control
of the defendant, and (3) the injury must not have been
a result of any voluntary action or contribution on the
part of the plaintiff.5 Claims involving injuries sustained
during administration of anesthesia have been made
under this doctrine. In one case, a patient complained of
pain that he described as a “strong electric shock” after a
spinal block was administered. The patient subsequently
lost all sensation below that spinal level and became
incontinent. Because one would not ordinarily expect a
permanent sensory loss from a spinal anesthetic, the
verdict was upheld at the appellate level.8
Establishing Lack of Informed Consent
Lack of informed consent is a common cause of action in
medical malpractice claims. Within the context of the
physician-patient relationship, the doctrine of informed
consent is based in English common law, by which
doctors could be charged with the tort of battery if they
had not gained the consent of their patient before the
performance of surgery or another procedure. In the
United States, the New York Court of Appeals estab-
lished the legal principle of informed consent in 1914.9
In this case, the plaintiff, Mary Schloendorff, was admit-
ted to a New York hospital and consented to examination
under ether anesthesia to determine whether a fibroid
tumor was malignant, but she withheld consent for its
removal. The physician examined the tumor, found it
to be malignant, and removed it—in disregard of the
patient’s wishes. The Court found that this operation
constituted medical battery. Writing on behalf of the
Court, Justice Benjamin Cardozo wrote, “Every human
being of adult years and sound mind has a right to deter-
mine what shall be done with his own body; and a surgeon
who performs an operation without his patient’s consent
commits an assault for which he is liable in damages. This
is true except in cases of emergency where the patient is
unconscious and where it is necessary to operate before
consent can be obtained.”9
This principle remains embedded in modern medical
ethics and has been adopted by most state legislatures in
the form of informed consent statutes. To establish neg-
ligence for failure to obtain informed consent, a plaintiff
must prove (1) the existence of a material and reasonably
foreseeable risk unknown to the patient, (2) a failure of
the physician to inform the plaintiff of that risk, (3) that
disclosure of the risk would have led a reasonable patient
in the plaintiff’s position to reject the medical procedure
or choose a different course of treatment, and (4) a causal
connection between the failure to inform the plaintiff of
the risk and the injury resulting from the occurrence of
the nondisclosed risk.10
Expert testimony is typically required to establish at
least some of the elements of an informed consent claim,
especially the materiality of the risk. However, expert
testimony is not essential if an issue falls within the
general knowledge of lay persons or if the doctor failed
to give the patient any information about the risks
involved, because a lay person can conclude that in the
absence of any information, informed consent is not
possible.
The obligation to obtain informed consent lies with
the physician.11 Ordinarily, the hospital or other organi-
zation has no independent duty to obtain a patient’s
informed consent. Likewise, a consultant physician who
advises the treating physician has no such duty. A refer-
ring physician is not required to obtain informed consent
unless he or she actually participates in or controls the
subsequent treatment by the other physician.12
There are differences of opinion as to the perspective
to be embraced when a physician is disclosing the nature
and likelihood of a given risk. Specifically, should it arise
from the patient’s or the physician’s point of view? Theo-
retically, both would desire the same scope of disclosure.
Often, the pivotal issue is the determination of which
party’s viewpoint should dictate the standard for judging
the physician’s conduct.13 Most jurisdictions use a “rea-
sonable person” or “prudent patient” standard. Under
this rule, a physician is expected to disclose to the patient
in lay terms all material information that a prudent or
reasonable patient would consider significant to making
his or her decision.14 This approach concerns itself with
the patient’s needs, rather than the physician’s judgment;
this approach follows the rationale that the physician
should neither impose his or her values on the patient
nor substitute his or her level of risk aversion for that of
the patient.15 Under this standard, the jury determines
whether a reasonable person in the plaintiff’s position
would have considered the risk significant in making his
or her decision. The issue is not what a particular patient
would want to know but rather what a reasonable person
in the patient’s condition would want to know, taking into
account factors such as the individual’s medical condition,
age, and risk factors.16 This objective standard protects
physicians from potentially self-serving testimony of
plaintiffs, who inevitably assert that they would have
refused a given procedure if they had been properly
informed of the risk.
The materiality of risk is an issue under this “reason-
able” or “prudent” patient standard. It is generally
accepted that a physician is not required to present every
possible risk of a proposed treatment. If the probability
of its occurrence is practically nonexistent, then the risk,
no matter how severe, is not material. Conversely, even
a small risk for occurrence may be significant to a patient’s
decision if the potential consequences could be severe.17
Disputes concerning the proper scope of disclosure tend
to center on whether the risk was foreseeable or remote.

Some jurisdictions still adhere to the professional stan-
dard of disclosure. This approach assumes the perspec-
tive of the physician and is concerned with what
information a reasonable practitioner would share with a
patient under the same or similar circumstances.18
Even in circumstances in which the health care provid-
ers acknowledge their failure to provide important infor-
mation to the patient or the patient’s legally authorized
surrogate decision-maker, the jury is still asked to decide
whether the patient or the patient’s decision-maker would
have consented to such a course of treatment despite the
risk. For example, in Barth v. Rock, a 5-year-old patient
suffered a cardiac arrest (and eventual death) after receiv-
ing general anesthesia by mask with sodium thiopental,
nitrous oxide, and a succinylcholine infusion for open
reduction of an arm fracture. Both the surgeon and the
nurse anesthetist admitted that they failed to inform the
minor patient’s parents about the risks of general anes-
thesia. The appellate court held that the jury should have
been instructed that, as a matter of law, there was no
informed consent; the jury then should have decided
whether the parents would have consented to the anes-
thesia had they been adequately informed of the risks.19
If a plaintiff establishes the four elements for a cause
of action based on lack of informed consent, the burden
shifts to the physician to establish a defense that justifies
why the material information was not provided (e.g., the
insignificant nature of the risk) or why disclosure would
not have altered the chosen course of treatment. In addi-
tion, the health care providers may claim that the case
was a medical emergency. State laws generally supply a
defense of “implied consent” for provision of necessary
emergency treatment when the patient is unable to
provide his or her own consent and no legally authorized
surrogate decision-maker is immediately available.20 If
the health care providers’ treatment was authorized under
a medical emergency, the providers should carefully doc-
ument their determination of same. The documentation
in the patient’s medical record should contain a descrip-
tion of the patient’s presenting condition, its immediacy,
its magnitude, and the nature of the immediate threat of
harm to the patient. It is advisable for at least two health
care providers to document this information, because the
documentation would support their actions if a lack-of-
informed-consent lawsuit were filed. The “emergency
treatment” rule is limited in two respects. First, the
patient must require immediate care to preserve life or
health. Second, the physician may provide only the care
that is reasonable in light of the patient’s condition.
THE LITIGATION PROCESS
It is helpful for health care providers to have a basic
understanding of sources of law, how lawsuits are initi-
ated, and typical steps in the litigation process.
Sources of Law
Legal authority has multiple sources, including federal
and state constitutions, federal and state statutes, federal
and state regulations, and federal and state case law.
33 Medicolegal Issues in Obstetric Anesthesia 767
Constitutions are the fundamental laws of a nation or
state, which establish the role of government in relation
to the governed. Constitutions act as philosophical touch-
stones for the society, from which other ideas may be
drawn. One example is the “right to privacy” established
in case law, which flows from the constitutional recogni-
tion of individual liberty.21 Statutes are the laws written
and enacted by elected officials in legislative bodies. Reg-
ulations are written by government agencies as permitted
by statutory delegation. Although regulations have the
force and effect of law, they must be consistent with their
enabling legislation. Case law refers to written opinions
or decisions of judges that arise from individual lawsuits.
Case law that may be cited as legal authority (precedent)
is limited to cases at the appellate court level (i.e., cases
appealed from trial court decisions). The vast majority of
lawsuits settle before trial, and only a small percentage of
trial court decisions result in appeal; thus, case law reflects
a very small portion of actual litigation. Like medicine,
the practice of law is dynamic and changes as new legisla-
tion and regulations are adopted or new case law is
created. In addition, any one or several of these sources
of law may be relevant to a particular case.
When creating new laws or applying the law in decid-
ing the proper result for a particular case, a legislative
body or a court may also consider other information
about standards for health care providers’ conduct. For
example, the court may give strong weight to The Joint
Commission standards and find that a provider acting in
accordance with The Joint Commission requirements
was adhering to his or her professional obligations.22 In
writing legislation or court decisions, lawmakers also may
defer to standards and practice guidelines adopted by
professional organizations, such as the American Society
of Anesthesiologists (ASA). The adoption of professional
standards and practice guidelines strengthens the influ-
ence of professional organizations in the lawmaking
process because lawmakers often are willing to defer to
professional organizations’ statements on standards of
care and professional ethics.
Some experts have suggested that the value of
“evidence-based” guidelines within the venue of medical
malpractice has been disappointing, primarily because of
a lack of scientific evidence supporting the guidelines.23
A 2009 analysis of guidelines issued by the American
College of Cardiology and the American Heart Associa-
tion determined that “the significant increase in the
quantity of scientific literature concerning cardiovascular
disease published in recent years (along with the number
of technical and medical advances)—if aimed to address
unresolved issues confronting guideline writers—should
have resulted in guideline recommendations with more
certainty and supporting evidence.”24 Recent federal reg-
ulation dictates the funding of some comparative effec-
tiveness studies that may provide additional evidence on
which to base clinical guidelines.25 It will be several years
before the merit of these investments can be assessed.
Initiation of a Lawsuit
Medical malpractice lawsuits are typically initiated when a
plaintiff files a complaint with the court. Some states have
768 PART VIII Anesthetic Complications
enacted statutes that impose certain conditions (including
notification of the defendant physician) before a com-
plaint is filed.26 The physician receives notice of the legal
action when he or she is served with a copy of the summons
and the complaint. In the complaint, the plaintiff alleges
the facts giving rise to the cause(s) of action against the
physician. The complaint requires a written answer to be
filed (by the attorney representing the physician) with the
court within a specified period. If a timely answer is not
filed, a default judgment may be entered against the physi-
cian (i.e., a judgment is allowed because no response may be
treated as no defense against the allegations).
In civil actions against health care providers, plaintiffs
are frequently motivated to sue for an award of monetary
damages. Medical malpractice lawsuits may involve mul-
tiple defendants, such as the treating physician, the
hospital, manufacturers of health care equipment, and
pharmaceutical companies. Defense counsel evaluates its
client’s potential liability exposure (i.e., any aspect of care
arguably not meeting the standard of care). Both plaintiff
counsel and defense counsel weigh the perceived risks if
the case proceeds to trial and then determine how much
they think the case is worth. The valuation of a case may
include more than the estimated dollar value; it may also
include considerations such as setting a potential prece-
dent or maintaining a business relationship.
Discovery
Discovery refers to the early phase of litigation after a
lawsuit is initiated. During this phase, the litigants on
both sides research the strengths and weaknesses of their
cases by obtaining and examining medical records,
reviewing medical literature, and interviewing and depos-
ing witnesses, including the plaintiff(s), the treating
health care provider(s), and potential expert witnesses.
During discovery, certain methods of gathering infor-
mation are generally used. The methods include inter-
rogatories and depositions. Interrogatories are written
questions that are served on one party from an opposing
party. Interrogatories must be answered in writing, under
oath, within a prescribed period. Failure to respond as
required may result in the court’s issuing sanctions against
the nonresponding party. Depositions involve testimony
given under oath that is recorded by a court reporter. In
a deposition taken for the purpose of discovery, the attor-
neys representing all opposing litigants participate and
ask questions of the witness. The purposes of discovery
depositions are (1) to obtain facts and other evidence, (2)
to encourage the other side to commit to a position “on
the record” (i.e., in preserved testimony), (3) to discover
the names of other potential witnesses, (4) to assess how
strong a witness the deposed individual may make, (5) to
limit facts and issues for the lawsuit, (6) to encourage the
other side to make admissions against its own interests in
the lawsuit, and (7) to evaluate the case for its dollar (or
other) value and potential for settlement.
Trial
A trial typically consists of (1) jury selection, (2) opening
statements, (3) plaintiff’s trial testimony, (4) defendant’s
trial testimony, (5) closing arguments, (6) jury instruc-
tions given by the judge, and (7) delivery of the jury’s
verdict. There also may be post-verdict proceedings and
motions. The lawyers for all parties file briefs with the
court in advance of the trial to outline the case for
the trial judge. The lawyers also prepare and argue over
the content of jury instructions, seeking the best language
to support their theories of the case. The judge decides
which jury instructions will be given and reads them to
the jurors immediately prior to jury deliberation. Attor-
neys commonly file motions about significant trial pro-
ceedings, such as the scope of admissible evidence. The
trial judge rules on these motions outside the presence of
the jury.
A jury verdict does not necessarily end the case. If a
verdict in favor of the plaintiff(s) is reached, defense
counsel may file a motion (1) asking the court to set aside
the verdict and grant a new trial, (2) asking the court to
change the verdict and enter a judgment in the defen-
dant’s favor, or (3) asking for a reduction in the amount
of damages awarded to the plaintiff(s). Defense counsel
also may seek to reopen settlement negotiations or may
choose to appeal the case. The plaintiff(s) may take
similar post-verdict steps if the jury renders a verdict in
favor of the defendant(s).
The vast majority of medical malpractice cases never
go to trial. A 1991 study showed that only 2% of persons
injured by physicians’ negligence ever file a lawsuit.27
Subsequently, only 10% of all medical malpractice claims
go to trial. Settlement negotiations result in the disposal
of many cases. Other cases are withdrawn by plaintiffs or
are dismissed by the court on legal grounds such as
summary judgment, whereby a judge may rule that a
plaintiff’s case is legally insufficient. Defendants win
approximately 71% of medical malpractice claims.28
In seeking alternatives that might speed the litigation
process and reduce the overall costs, a number of states
have created medical pretrial screening panels. As an
alternative to a full trial, a medical screening panel is
typically comprised of several physicians and an attorney,
who determine whether the defendant met the appropri-
ate standard of care and if the injury was proximately
caused by a failure to meet that standard. The findings
of the group are then submitted to the court for further
adjudication.29 The effectiveness of this model is subject
to considerable debate. Other alternatives include arbi-
tration, mediation, and other types of alternative dispute
resolution.
INFORMED CONSENT
Process and Documentation
A patient’s right of self-determination lies at the root of
informed consent. A patient can make an informed deci-
sion only after (1) a discussion of the diagnosis and the
indications for the procedure or therapy; (2) disclosure
of material risks, benefits, and alternatives; and (3) provi-
sion of an opportunity for questions and answers. This
process is neither accomplished nor affirmed solely by
having the patient’s or the patient surrogate’s signature

on a document asserting informed consent. Evidence of
this process and the physician’s involvement in the process
may be found among office notes, informational aids
shared with patients, hospital notes, and signed forms
acknowledging informed consent.
The necessity of having a specific process is not only
an ethical obligation but also a requirement of various
state and federal agencies. For example, the U.S. Centers
for Medicare and Medicaid Services (CMS) have Condi-
tions of Participation that define the requirements that
facilities must satisfy to participate in the Medicare and
Medicaid programs. Specifically, the Patients’ Rights Con-
ditions of Participation contain the following interpretive
guidelines: “Hospitals must utilize an informed consent
process that assures patients or their representatives are
given the information and disclosure needed to make an
informed decision about whether to consent to a proce-
dure, intervention, or type of care that requires consent.”30
Further, the interpretive guidelines for the CMS Surgical
Services Conditions of Participation specifically state the
following31:
The primary purpose of the informed consent process is
to ensure that the patient, or the patient’s representative,
is provided information necessary to enable him/her to
evaluate a proposed surgery before agreeing to the
surgery. Typically, this information would include
potential short and longer term risks and benefits to the
patient of the proposed intervention, including the
likelihood of each, based on the available clinical evidence,
as informed by the responsible practitioner’s professional
judgment. Informed consent must be obtained, and the
informed consent form must be placed in the patient’s
medical record, prior to surgery, except in the case of
emergency surgery.
The interpretive guidelines note that there is no specific
requirement for informed consent governing anesthesia
services but also state that “given that surgical procedures
generally entail the use of anesthesia, hospitals may wish
to consider specifically extending their informed consent
policies to include obtaining informed consent for the
anesthesia component of the surgical procedure.”31
As patients have become more engaged in their health
care and are reaching out to nontraditional sources of
information, other approaches to ensuring informed
consent have been proposed. Studies have demonstrated
that standard counseling often results in inadequate deci-
sion quality.32 Some patients may have an incomplete
understanding of the risk and benefits of a treatment, and
clinicians are often poor judges of patients’ values; con-
sequently, there may be overuse of treatments that
informed patients would not choose or value.33 Thus,
decision-making aids are used to improve the quality of
informed consent and to reduce unnecessary practice
variations by (1) providing facts about the condition,
options, outcomes, and risks; (2) clarifying patients’ eval-
uations of the outcomes that are most meaningful to
them; and (3) guiding patients in the steps of deliberation
and communication so that a choice can be made that
reflects their informed values. These decision-making
aids may be used by practitioners and/or patients in either
33 Medicolegal Issues in Obstetric Anesthesia 769
individual or group settings, and they may be presented
in a variety of formats, such as print, video, the Internet,
and interactive devices.33 In essence, this approach
attempts to address the weaknesses in both the “reason-
able patient” and the “professional standard” approaches
to disclosure, and it becomes even more valuable as the
diversity of practitioners and patients increases.
Formal documentation of informed consent has other
advantages. Adequate documentation helps health care
providers defend their actions if patients subsequently
challenge their consent for health care. In some jurisdic-
tions, a valid consent form signed by the patient may
provide a direct means of defense and actually shift the
burden of proof to the plaintiff who wishes to make a
claim of lack of informed consent.34 Some large medical
liability insurance providers have strongly recommended
that the clinician responsible for providing anesthesia
care should obtain a separate written consent.35 Further,
some anesthesia organizations have recommended not
only that an anesthesia-specific form should be used but
also that practitioners should highlight specific risks that
may be present.36 A separate anesthesia consent form that
highlights specific risks demonstrates a meaningful effort
to engage patients in a full discussion of relevant issues
and may help establish the basis of a potential defense
against a medical malpractice claim. It may also reinforce
the importance and significance of anesthesia services and
choices in the obstetric setting.
In discussing anesthetic options for a given procedure,
anesthesia providers should consider several aspects,
including the best options given the skill set of the pro-
vider, the comorbidities of the patient, and the prefer-
ences of the surgeon. In a review of anesthesia consent
procedures, O’Leary and McGraw37 recommended that
an explanation of the relevant risks and benefits of alter-
native techniques as well as the likelihood and details of
a backup plan should be included in informed consent.
The investigators recommended that anesthesia provid-
ers adopt a separate, written consent form for the admin-
istration of anesthesia services. A form that clearly
delineates common risks but allows documentation of
patient-specific risks should be used. Ideally, the anesthe-
sia provider should obtain the patient’s consent for anes-
thesia and should not rely on other professionals who are
not competent to explain the risks and benefits of anes-
thesia options.
Capacity to Consent/Mental Competence
Physicians are bound by ethics and required by law to
obtain a patient’s informed consent before initiating
treatment. This premise assumes that a patient is compe-
tent and/or has the capacity to successfully participate in
this process. Competence generally refers to the patients’
legal authority to make decisions about their health care.
Adult patients, typically 18 years of age or older, are
presumed to be legally competent to make such decisions
unless otherwise determined by a court of law. Capacity
typically focuses on the clinical situation surrounding the
informed consent process. For example, an otherwise
normal patient who has been given sedation may be
legally competent but temporarily incapacitated and
770 PART VIII Anesthetic Complications
therefore unable to give informed consent.38 The deter-
mination as to whether a patient has the capacity to
provide informed consent generally is a professional
judgment made by the treating health care provider.
However, if a court has made a judgment regarding a
patient’s capacity to make such decisions, the health care
provider(s) should obtain a copy of the court order,
because it may delineate whether the patient is consid-
ered able to make his or her own health care decisions.
For example, a guardianship is a type of court proceeding
that may have an impact on the informed consent process.
If a patient has a legal guardian with the authority to
make health care decisions on behalf of the patient, that
guardian should be consulted about the patient’s care and
is the person legally authorized to provide consent. A
failure to recognize a lack of capacity may expose a physi-
cian to liability for treating a patient without valid
informed consent.
The legal standards for decision-making capacity vary
among jurisdictions but generally encompass the follow-
ing criteria: The patient must be able to (1) understand
the relevant information, (2) appreciate the situation and
its consequences, (3) reason about treatment options, and
(4) communicate a choice.39 When the patient is unable to
do so, surrogate decision-makers may be sought. In emer-
gency situations, physicians can provide necessary care
under the presumption that a reasonable person would
have consented to the anticipated treatment.40 Most states
have laws that delineate who is legally authorized to
provide consent for health care decisions on behalf of
an incapacitated individual. State laws vary, but they typi-
cally provide a list of persons (in order of priority) who
may give consent. These laws assume that legal relatives
are the most appropriate surrogate decision-makers.
However, the competent patient is free to select any com-
petent adult to act as his or her health care decision-maker
by executing a durable power of attorney for health
care, which appoints that person as his or her agent.
Health care providers are required to make reasonable
efforts to locate a person in the highest possible category
to provide consent. If there are two or more persons in
the same category (e.g., adult children), then the medical
treatment decision must be unanimous among those
persons. These surrogate decision-makers generally are
required to make “substituted judgment” decisions on
behalf of the patient (i.e., they are obligated to decide as
they believe the patient would, not as they may prefer).
If what the patient would want under the circumstances
is unknown, then the surrogate must make a decision
consistent with the patient’s “best interests.”41 The sur-
rogate decision-maker has the authority to provide
consent for medical treatment, including nontreatment.
Minor Patients
Existing laws regarding the ability of minors to provide
their own consent for medical care may be viewed as
a patchwork quilt. Statutes and case law differ from
state to state. There are three ways in which a minor
may be deemed able to give his or her own consent for
medical care: (1) by state law that permits the minor to
consent for the specific type of care, (2) by a clinical
determination made by the health care providers that the
minor is mature and emancipated for consent purposes,
and (3) by a judicial determination of emancipation.
Parental involvement in a minor’s health care deci-
sions is usually desirable. For most health care decisions,
a parent is required to provide consent for medical treat-
ment of a minor patient.42 However, many minors will
not take advantage of some available medical services if
they are required to involve their parents.43 The list of
services for which minors can legally give consent has
recently expanded to include (1) sexual and reproductive
health care, (2) mental health services, and (3) alcohol and
drug abuse treatment. The majority of states also permit
minor parents to make important health care decisions
regarding their own children.
In most states, consent laws apply to minors 12 years
of age and older. For example, 26 states and the District
of Columbia allow minors (12 years of age and older) to
consent to contraceptive services. All states and the Dis-
trict of Columbia allow minors to consent to treatment
for sexually transmitted infections. Thirty states and the
District of Columbia allow minor parents to consent to
medical care for their children. For some medical treat-
ment, including contraception and obstetric care, case
law has generally held that minors have rights of privacy
and autonomy that are fundamental and equivalent to the
rights of adults.44
In addition to statutes and case law regarding a minor’s
ability to provide consent, there also exists a broader legal
concept—the emancipated or mature minor doc-
trine.45 This doctrine allows health care providers to
determine whether a minor is emancipated for providing
medical consent. Case law may not give a precise defini-
tion of an emancipated minor, but it may list criteria that
health care providers should consider. Such criteria may
include the minor’s age, maturity, intelligence, training,
experience, economic independence, and freedom from
parental control. When a minor is deemed emancipated
for medical consent, the health care provider should
document the objective facts that support the emancipa-
tion decision, consistent with institutional policies and/
or other legal guidance.
Some states have adopted emancipation statutes that
permit minors to file for emancipation status in court.46
Typically, a minor is required to be a minimum age to file
for emancipation. Once the court grants emancipation
status, a minor generally has the right to give informed
consent for health care. A signed copy of the court’s
emancipation order should be placed in the patient’s
medical record.
Emancipation per se does not alter the requirement
that a patient provide informed consent for medical treat-
ment, including nontreatment. Emancipation status
affords the minor patient rights (for providing consent)
that are equal to those of an adult patient. The emanci-
pated minor (like any adult patient) must have the ability
to weigh the risks and the benefits of the proposed treat-
ment or nontreatment.
In summary, health care providers typically should
obtain consent from the minor’s parents before providing
nonemergency treatment unless the minor is emanci-
pated (by either a clinical or judicial determination) or

the minor is permitted by statute to give consent to the
type of health care sought.
Consent for Labor Analgesia
It is common practice for surgical patients to sign a pre-
operative consent form, which often includes a statement
giving consent for anesthesia. The situation in obstetrics
is somewhat different in that not all laboring women
require operative delivery. Several years ago, an unpub-
lished survey of obstetric centers in the greater Seattle,
Washington, area revealed that approximately half of the
institutions did not require a signed consent form for
obstetric procedures other than cesarean delivery. At
many of these institutions, a separate written consent
signed by the patient is not obtained before administra-
tion of anesthesia. A 1995 survey of obstetric anesthesi-
ologists in the United States and the United Kingdom
indicated that 52% of U.S. anesthesiologists (but only
15% of U.K. anaesthetists) obtained a separate written
consent for epidural analgesia during labor.47 In a survey
performed in the United Kingdom in 2007,48 only 7% of
obstetric units routinely obtained written informed
consent for epidural analgesia during labor. In a 2004
survey from Australia and New Zealand,49 less than 20%
of anesthesia providers obtained written consent before
initiating neuraxial labor analgesia.
Some health care facilities and organizations have
begun using a consent form for obstetric and anesthetic
procedures that may be desired or necessary during labor
and delivery. The process of reviewing and signing the
consent form provides a specific opportunity for the
patient to ask questions. It also provides additional docu-
mentation that consent was obtained. The combined
form has the additional advantage of not requiring the
patient to sign multiple medicolegal documents. Although
a signed consent form is not necessary, it should be stan-
dard practice for anesthesia providers to document that
verbal informed consent was obtained before administra-
tion of anesthesia.
Ideally, the anesthesia provider will discuss anesthetic
options before the patient is in severe pain and distress.
Unfortunately, the anesthesia provider often first encoun-
ters the patient when she is in severe pain. Although the
provider may tailor the consent process to the circum-
stances, the presence of maternal pain and distress does
not obviate the need for a frank discussion of the risks of
anesthesia as well as the alternatives. A survey of Cana-
dian women revealed their strong preference to be
informed of all possible complications of epidural anes-
thesia, especially serious ones, even when the risk was
quite low.50 This study and others have emphasized that
parturients desire to have these discussions as early in
labor as possible.
Gerancher et al.51 performed a study to evaluate the
ability of laboring women to recall the details of a pre-
anesthesia discussion and to determine whether verbal
consent alone or a combination of verbal and written
consent provided better recall. The investigators ran-
domly assigned 113 laboring women to one of two
groups, those from whom verbal consent alone was
obtained and those from whom verbal consent plus
33 Medicolegal Issues in Obstetric Anesthesia 771
written consent was obtained. The verbal-plus-written
consent group had significantly higher median (range)
recall scores (90 [80-100]) than the verbal-only group (80
[70-90]). Only two women (both in the verbal group)
believed that they were unable (because of either inade-
quate information or situational stress) to give valid
consent. The investigators concluded that “the high
recall scores achieved by the women in both groups
suggest that the majority of laboring women are at least
as mentally and physically competent to give consent as
preoperative cardiac patients.”
Clark et al.52 randomly assigned hospital inpatients
to receive either an oral anesthesia discussion alone
or both an oral anesthesia discussion and a preprinted
anesthesia consent form. In contrast to the results of
Gerancher et al.,51 these investigators found that “patients
remembered less of the information concerning anes-
thetic risks discussed during the preoperative interview
if they received a preprinted, risk-specific anesthesia
consent form at the beginning of the interview.” They
speculated that “patients who see an anesthesia consent
form for the first time during the preoperative interview
may try to read and listen simultaneously, and with their
attention divided, may remember less of the preoperative
discussion.”
Anesthesia providers have expressed concern about the
adequacy of the informed consent process when women
are experiencing the severe pain of active labor. A 2005
study evaluated whether labor pain and neuraxial fentanyl
administration affect the intellectual function of laboring
women.53 The Mini-Mental Status Examination (MMSE)
was used to evaluate orientation, registration, attention,
calculation, recall, and language both before and after
initiation of analgesia in 41 laboring women. There was
no difference in MMSE scores before and after adminis-
tration of neuraxial analgesia.
In summary, it seems reasonable for the patient to
provide her signature as evidence of her consent, if her
condition permits. This consent can be furnished on a
separate anesthesia consent form or as part of a consent
form for all obstetric care, including anesthesia. A signed
consent form is preferable, but it should be standard
practice for the anesthesia provider to explain the intended
procedure, risks, and alternatives and to document this
discussion in the medical record.
REFUSAL OF CARE
Documentation
Competent adult patients may refuse medical treatment,
including life-saving care.42 Health care providers gener-
ally determine whether a patient is capable of making
medical treatment choices (see earlier discussion). In
theory, the health care providers’ clinical judgment about
a patient’s capacity to provide informed consent is the
same regardless of whether the patient approves or disap-
proves the treatment plan. In practice, however, these
situations are often handled differently. When a patient
consents to the recommended medical treatment,
minimal scrutiny of his or her decision-making capacity
772 PART VIII Anesthetic Complications
is typically made. However, when a patient refuses poten-
tially life-saving treatment, a higher level of scrutiny is
applied to the patient’s ability to understand and make a
choice for nontreatment. Determination of a patient’s
capacity to give informed consent is typically a clinical
judgment. State law may provide some definitions as to
when a person may not be competent.
If a patient refuses potentially life-saving treatment,
the health care providers should carefully assess the
patient’s capacity to provide informed consent. It may be
advisable to obtain a psychiatric consultation as part of
this clinical determination. It is important to document
the determination of capacity and the objective facts sup-
porting the decision. If a patient is deemed able to provide
consent, he or she is able to either choose or reject the
recommended treatment plan. Institutional policies may
require the patient (or health care provider if the patient
refuses) to sign an “Against Medical Advice” form for a
non–medically approved discharge. If a patient is deemed
unable to consent, the health care providers should obtain
consent from a legally authorized surrogate decision-
maker on the patient’s behalf. If an incompetent patient
needs emergency medical care, it may be provided
consistent with an “emergency exception” (see earlier
discussion).
Conflicts Arising out of the Maternal-
Fetal Relationship
Almost all pregnant women consider the welfare of their
unborn child to be of utmost importance. However, there
may be situations in which maternal and fetal interests
appear divergent or, potentially, in conflict. One example
is when a pregnant woman refuses a diagnostic proce-
dure, a medical treatment, or a surgical procedure that is
intended to enhance or preserve fetal well-being. Another
may arise when the pregnant woman’s behavior is con-
sidered harmful to the fetus.54 Physicians who care for
pregnant women may confront challenging dilemmas
when their patients reject medical recommendations, use
illegal drugs, or engage in other behaviors that may
adversely affect fetal well-being.
Appellate court decisions typically have held that a
pregnant woman’s decisions regarding medical treatment
take precedence over the presumed fetal consequences of
the maternal decisions.55 One case illustrates the evolu-
tion of this judicial approach. Angela Carder was a
26-year-old married woman who had had cancer since
age 13 years. At 25 weeks’ gestation she was admitted to
George Washington University Hospital, where a massive
tumor was found in her lung. Her physicians determined
that she would die within a short time. Her husband, her
mother, and her physician agreed with her expressed
wishes to be kept comfortable during her dying process.
Ultimately, the hospital sought judicial review of this
course of action. The hospital asked whether a surgical
delivery should be authorized to save the potentially
viable fetus. The situation was presented to a judge, who
authorized an emergency cesarean delivery without first
ascertaining (using the principle of substituted judgment)
the patient’s wishes. A cesarean delivery was performed
without full consideration of the patient’s wishes, the
infant died approximately 2 hours after delivery, and the
mother died 2 days later.
This case spawned extensive debate as to whether
coercive intervention to protect the fetus is ever morally
and legally justifiable.56 With the assistance of the Ameri-
can Civil Liberties Union, Angela’s parents sued the hos-
pital, 2 administrators, and 33 physicians for claims
including battery, false imprisonment, discrimination,
and medical malpractice. These civil lawsuits were settled
after several years of litigation, and as part of this process,
the hospital adopted a written policy concerning decision-
making for pregnant patients.57 The court later reversed
its initial decision authorizing the surgical delivery and
ultimately issued an opinion setting forth the legal prin-
ciples that should govern the doctor–pregnant patient
relationship.58 The court stated, “In virtually all cases the
question of what is to be done is to be decided by the
patient—the pregnant woman—on behalf of herself and
the fetus. If the patient is incompetent…her decision
must be ascertained through substituted judgment.” In
affirming that the patient’s wishes, once ascertained, must
be followed in “virtually all cases” unless there are “truly
extraordinary or compelling reasons to override them,”
the court did not foreclose the possibility of exceptions
to this rule.
Many contemporary medical ethicists agree that a
pregnant woman’s informed refusal of medical interven-
tion should prevail as long as she has the capacity to make
medical decisions.59 Newer legislation and some high-
profile legal cases (some involving criminal prosecution)
have challenged this notion and have raised the question
of whether there are circumstances in which a pregnant
woman’s rights to informed consent and bodily integrity
may be subordinated to protect her unborn child. In
2004, Amber Rowland, a woman who had given birth
vaginally to six children (with birth weights up to 12
pounds), was told by her treating physicians at a Penn-
sylvania hospital that she should undergo a cesarean
delivery on the basis of an ultrasonographic examination
that suggested an estimated birth weight of 13 pounds.
When she refused, the hospital obtained a court order
for a “medically necessary” cesarean delivery. She and her
husband left the hospital against medical advice and went
to another facility, where she uneventfully delivered a
healthy 11-pound daughter.60
Other cases have focused on the pregnant woman’s
potentially harmful behavior. In 1991, Regina McKnight,
who was pregnant at the time, began using cocaine after
her mother’s death. She had a stillbirth, and the state of
South Carolina charged her with homicide by child
abuse, claiming that her drug use caused the stillbirth.
She became the first South Carolina woman to be con-
victed of this crime, for what both the defense and pros-
ecution agreed was an unintentional stillbirth, and she
spent nearly 8 years in jail. In 2008, the South Carolina
Supreme Court unanimously reversed her conviction on
the grounds that she did not receive a fair trial, primarily
on the basis that her attorney failed to challenge the
science that was used to convict her.61
Also in 2008, the Southern Poverty Law Center, along
with 25 medical, public health, and health advocacy
groups, filed an amicus curiae brief against the prosecution

of pregnant women in Covington County, Alabama, sub-
sequent to the following event. Shekelia Ward delivered
an infant on January 8, 2008. Both she and her newborn
tested positive for cocaine during their hospital stay, and
the facility reported it to authorities for possible child
abuse.62 The following day she was arrested, imprisoned,
and charged with a felony—chemical endangerment of a
child. The state statute at issue was passed by the Alabama
legislature in 2006, for the purpose of prosecuting parents
who exposed children to the toxins associated with meth-
amphetamine production; the statute did not mention
pregnant women or their fetuses.63
These statutes reflect the concept that a fetus can and
should be treated as separable and legally, philosophically,
and essentially independent from the mother.55 The
refinement of techniques of intrauterine fetal imaging,
testing, and treatment prompted the view that fetuses are
independent patients who can be treated directly while
in utero.64 The prominence of some ethical models that
have asserted that physicians have moral obligations to
fetal patients separate from their obligations to pregnant
women also contributed to these developments.65 Finally,
a number of laws (primarily passed at the state level) were
enacted with the aim of defining fetal rights separate from
a pregnant woman’s rights. In 2011, the American College
of Obstetricians and Gynecologists (ACOG) Committee
on Health Care for Underserved Women issued a state-
ment addressing the issue of substance abuse reporting
and the role of the obstetrician.66 This document
described a “disturbing trend” in legal actions and poli-
cies that criminalized drug abuse during pregnancy when
such abuse is thought to be associated with fetal harm or
adverse outcomes. Noting that women seeking obstetric
care should not be exposed to criminal or civil penalties
and that few treatment facilities are available to effectively
treat drug abuse in pregnancy, the ACOG concluded that
the use of the legal system to address alcohol and sub-
stance abuse issues is inappropriate and urged that policy
makers and legislators instead focus on strategies to
address the needs of pregnant women with addictions.
The American Medical Association (AMA) has taken
a similar position, stating that (1) drug addiction is a
disease amenable to treatment, rather than a criminal
activity, and (2) there is a pressing need for maternal drug
treatment and supportive child protective services.67 Any
legislation that criminalizes maternal drug addiction or
requires physicians to function as agents of law enforce-
ment will be opposed by the AMA.67
During the past two decades, practitioners have only
infrequently resorted to court-ordered interventions
against the wishes of the pregnant woman. In overturning
the previous court’s decision in the Angela Carder case
(mentioned earlier), the Washington, DC, Court of
Appeals noted that if a pregnant woman makes an informed
decision, “her wishes will control in virtually all cases.”58
The court added, “We do not foreclose the possibility that
a conflicting state interest may be so compelling that the
patient’s wishes must yield, but we anticipate that such
cases will be extremely rare and truly exceptional.”58
Medical ethicists and practitioners agree that clear
communication and patient education represent the
best means to address maternal-fetal conflict. Failing
33 Medicolegal Issues in Obstetric Anesthesia 773
resolution, a 1999 ACOG opinion offered the following
three options: (1) respect the patient’s autonomy and not
proceed with the recommended intervention regardless
of the consequences, (2) offer the patient the option of
obtaining medical care from another individual before
conditions become emergent, and (3) request that the
court issue an order to permit the recommended treat-
ment.68 In 2004, the ACOG addressed the situation in
which health care providers may consider this last option
(i.e., legal intervention against a pregnant woman).54 Spe-
cifically, the ACOG stated that the following criteria
should be satisfied: (1) “there is a high probability of
serious harm to the fetus in respecting the patient’s deci-
sion”; (2) “there is a high probability that the recom-
mended treatment will prevent or substantially reduce
harm to the fetus”; (3) “there are no comparably effective,
less intrusive options to prevent harm to the fetus”; and
(4) “there is a high probability that the recommended
treatment [will] also benefit the pregnant woman or that
the risks to the pregnant woman are relatively small.”
The ACOG opinions assume the presence of compe-
tency and informed consent. Thus, if a pregnant patient
is believed to be incompetent and incapable of providing
informed consent, the health care providers may not be
required to respect the patient’s refusal of care. Moreover,
if the patient is deemed incompetent and/or a medical
emergency exists, care may be provided with consent
from a legally authorized surrogate decision-maker or as
an “emergency exception.”
In summary, two approaches are available to the
practitioner dealing with maternal-fetal conflict. One
approach is to honor a competent pregnant patient’s
refusal of care. The other approach (which appears least
favored by many medical ethicists and the ACOG) is to
seek judicial authorization of treatment, which overrides
a competent pregnant woman’s refusal of care.69
In honoring a competent patient’s desires to refuse
treatment, the health care providers should carefully
document the woman’s competency and ability to provide
informed consent. Every attempt should be made to
counsel her to follow the treatment recommendations.
Documentation should include how, when, and what
information was provided to the patient and family
regarding the significant risks to both the patient and the
unborn child if the recommended care were not pro-
vided. If time permits, the treatment options should be
reevaluated with the patient at frequent intervals, with
detailed documentation in the patient’s medical record.
Additionally, legal counsel for the health care providers
and medical facility may wish to prepare an “assumption
of risk” form for the patient (and, if possible, her husband)
to sign. This form represents another level of documen-
tation (beyond the detailed notes in the patient’s medical
record) demonstrating that the patient was fully informed
about the risks associated with her refusal of treatment
and that she voluntarily elected to accept those risks.
However, such a release signed by the parents may not
protect the physician and medical facility from a claim
brought on behalf of the child who suffers an injury as a
result of nonintervention. In some cases the court has
found that physicians have a duty to provide care to the
unborn child.70
774 PART VIII Anesthetic Complications
Patient “assumption of risk” does not release a health
care provider from his or her obligations to provide other
treatment within the accepted standard of care. For
example, in Shorter v. Drury,71 a case that involved a
patient’s refusal of blood transfusion because of religious
preferences, the court upheld the validity of an “assump-
tion of risk” (i.e., release) that relieved the physician from
liability for compliance with the patient’s refusal of blood
transfusion before and after surgery but nonetheless held
him partially responsible for her death because of his
negligent performance of the surgery.71
Before deciding whether to seek court review, health
care providers should identify what issue they want the
court to resolve. Is it whether the pregnant woman is
competent? Is it whether there is a superior state interest
in preserving the life of the viable fetus and/or the preg-
nant woman despite the (competent) patient’s desire to
refuse recommended care? Health care providers also
should consider whether a court is the proper forum for
resolving those issues or whether another forum (e.g., an
institutional ethics committee) may be a better choice. If
a patient care dilemma is put before a judge, the health
care providers give up a large amount of control over the
disposition of the case. Nonetheless, if a patient’s com-
petency is at issue and there is adequate time, court review
to settle the patient’s competency may be beneficial and
is supported by both the ACOG guidelines54 and the In
re: A.C. decision.58 It is beneficial to obtain authorization
for the provision of medically recommended care without
waiting until the situation becomes an emergency. If the
patient is deemed incompetent, the court may either
appoint a surrogate decision-maker or directly authorize
(by court order) the provision of medically indicated care.
It is not unusual for physicians to disagree with their
patients’ health care decisions, and such differences are
expected. In some cases, physicians conclude that provid-
ing the requested care would present a personal moral
problem—a conflict of conscience, which prompts them
to refuse to provide the requested care. Conscientious
refusals have become especially prevalent in the practice
of reproductive medicine, an area characterized by deep
societal divisions regarding the morality of contraception
and pregnancy termination. The ACOG Committee on
Ethics72 has acknowledged that “respect for conscience is
one of many values important to the ethical practice of
reproductive medicine.” The ACOG stated that when
conscience implores physicians to refuse to perform
abortion, sterilization, and/or provision of contracep-
tives, “they must provide potential patients with accurate
and prior notice of their personal moral commitments.”
The ACOG committee opinion also emphasized that
providers have an obligation to provide medically indi-
cated care in an emergency that threatens the patient’s
health, in which referral is not possible.72
DISCLOSURE OF UNANTICIPATED
OUTCOMES AND MEDICAL ERRORS
In 1999, the Institute of Medicine (IOM) estimated that
preventable medical errors in the hospital setting kill
44,000 to 98,000 patients each year.73 In December 2006,
the Institute for Healthcare Improvement (IHI) initiated
the 5 Million Lives Campaign.74 At that time, the IHI
estimated that 15 million incidents of harm occurred
in U.S. hospitals each year (40,000 per day). Since that
time, the prevalence of medical errors remains unac­
ceptably high and continues to draw the focus of the
public, regulators, and health care providers.75 Large-
scale efforts are underway to improve the safety in health
care, and many organizations have achieved remarkable
improvements.76
Most practitioners strive to provide the highest quality
of care, but even with the growing focus on patient safety,
unintended consequences—including patient injury and
death—do occur. Unfortunately, most physicians remain
largely unprepared to engage patients and their families
in a timely, truthful, and candid manner in the aftermath
of such events. In 1984, David Hilfiker wrote candidly
of a life-altering mistake that he had made as a family
physician treating a young woman in a small town in
Minnesota.77 Hilfiker was caring for a young woman
named Barb Daily whom they both believed to be preg-
nant. He had delivered Barb and Russ Daily’s first child,
Heather, 2 years earlier, and he had been a friend of the
couple for some years. After several months of care, her
serial urine pregnancy test results remained negative and
her uterus was only slightly enlarged. Concluding that
she may have experienced a missed abortion, Hilfiker
scheduled her for a dilation and curettage. The procedure
was performed, but it became apparent that the diagnosis
was incorrect and the procedure had been carried out
with a live fetus. In his reflections on the event, Hilfiker
wrote of a physician’s expectations of perfection, the lack
of training in dealing with unexpected outcomes and mis-
takes, and the damaging effects of these conditions on
physicians.77
Disclosure of errors and unanticipated outcomes is a
key component in the national patient safety movement.
It is also an ethical mandate and a regulatory require-
ment. The ethical imperative is captured in the following
passage from the Charter on Medical Professionalism, pub-
lished by the American Board of Internal Medicine
(ABIM) Foundation78:
Physicians should also acknowledge that in health care,
medical errors that injure patients do sometimes occur.
Whenever patients are injured as a consequence of medical
care, patients should be informed promptly because failure
to do so seriously compromises patient and societal trust.
Reporting and analyzing medical mistakes provide the
basis for appropriate prevention and improvement
strategies and for appropriate compensation for injured
parties.
The AMA’s Code of Medical Ethics contains the follow-
ing statement: “It is a fundamental ethical require­
ment that a physician should at all times deal honestly
and openly with patients…. Concern regarding legal
liability, which might result following truthful disclosure,
should not affect the physician’s honesty with a patient.”79
The Joint Commission standard RI.2.90 requires that
“patients and, when appropriate, their families, are

informed about the outcomes of care, treatment, and
services that have been provided, including unantici­
pated outcomes.”80 Many states require reporting of
medical errors, and some have legislated “apology” laws
that encourage practitioners to be empathetic and honest
with patients by allowing certain statements of sym­
pathy to be made without fear of admitting medical
liability.81
Physicians and other health care providers should
undergo disclosure training to help them provide prompt
and honest communication with patients and families and
to help manage the risks of legal liability. Many untoward
outcomes do not represent malpractice; they may simply
reflect risks or complications of procedures that may or
may not have been adequately discussed with patients and
their families before the procedure or treatment. Ade-
quate informed consent is an essential element of an
effective disclosure program. Iatrogenic injuries, obvious
mistakes, wrong-site surgeries, medication errors, and
similar events that harm the patient should clearly be
disclosed. A failure to disclose such an error may lead the
patient (or the attorney) to conclude that health care
providers made a deliberate effort to “cover up” the error.
Furthermore, nondisclosure after such an event can lead
to a charge of fraud. In most situations in which a pro-
vider conceals an error, the law provides that the statute
of limitations “clock” for filing a malpractice claim does
not begin to run until the fraudulent concealment is
discovered.
In 2006, the Harvard teaching hospitals and their asso-
ciated Risk Management Foundation developed a docu-
ment entitled, “When Things Go Wrong: Responding
to Adverse Events.”82 This white paper acknowledged the
presence of many barriers to disclosure, including the
fear of being sued, but the authors insisted that commu-
nication with patients and their families must be timely,
open, and ongoing. In addition to stressing the impera-
tive of providing support for the patient and/or family
involved in the unexpected outcome, the paper empha-
sized the need to provide support to the health care
providers involved. This concern is reflected in a 2008
survey that indicated that as many as 75% of obstetricians
felt that caring for a patient with a stillbirth exacted a
large toll on them, with almost 10% of those affected
considering giving up their obstetric practice.83
Organizations that have adopted robust disclosure
policies often have early settlement or “offer” programs,
with the goals of reducing the overall costs of claims and
speeding the resolution process. Recognizing the long-
standing gridlock over tort reform, this and other
approaches may provide a better balance between the
interests of health care providers and their patients. Not
only is it an opportunity to reform the process of com-
pensating those who may have been injured, but it can
also be linked to improvements in patient safety. A dis-
tinguishing feature of “disclosure and offer” models is
that information and insights generated from the inves-
tigative process can be shared and analyzed for the pur-
poses of implementing interventions that improve patient
safety.84 Physicians have a unique opportunity to lead
such efforts, and their participation promotes the buy-in
of other staff members.
33 Medicolegal Issues in Obstetric Anesthesia 775
CONTEMPORARY RISK
MANAGEMENT STRATEGIES
Prevention of medical errors and adverse outcomes
frequently focuses on the safety culture of the organiza-
tion, communication and teamwork, and the intelligent
use of protocols and checklists (see Chapter 11). The
concept of a safety culture originated in organizations
outside of health care sometimes referred to as high reli-
ability organizations (e.g., nuclear industry, aircraft
carrier operations).85 A culture of safety is characterized
by an institution-wide commitment to minimize adverse
events despite the performance of intrinsically complex
and hazardous work.86 The key features of a “culture of
safety” are:
• An acknowledgment of the high-risk nature of an
organization’s activities and the pursuit of consis-
tently safe operations.
• A “blame-free” environment that encourages indi-
viduals to report errors or near misses without fear
of reprimand or punishment.
• Encouragement of collaboration across levels and
disciplines of the organization to seek solutions to
the prevention of errors.
• Organizational commitment of resources to address
the safety concerns.
Safety culture has been defined and can be measured;
poor safety culture has been linked to increased error
rates and adverse outcomes. Achieving a culture of safety
in health care is daunting, because a culture of individual
blame remains dominant and traditional. An issue that
often arises is balancing the twin concepts of “no blame”
and appropriate accountability. This is a particular strug-
gle with physicians, given that few organizations have
implemented meaningful systems of accountability that
apply to the physicians.87
Communication and teamwork lapses are one of the
primary causes of sentinel events identified by The Joint
Commission from 2009 to 2011.88 A 2010 review of
obstetric malpractice risks by a major insurer found that
65% of the malpractice cases involved high-severity inju-
ries, including maternal and infant deaths.89 The most
frequent contributing factors were substandard clinical
judgment (77% of claims) and miscommunication (36%
of claims). The report specifically noted that “at the
intersection of individual decision making and team com-
munication, teamwork training fosters development of a
culture and structure for effective communication and
decisive action. Its hallmarks—development of shared
mental models, broad situational awareness, and clear
communication among team members—facilitate clini-
cians’ ability to timely identify signs of distress and take
appropriate action.”89
There is also increasing recognition of the value of
smart checklists and protocols. Checklists may simplify
complex procedures and make them less prone to error.
Checklists may reduce the mental flaws inherent in human
behavior.90 The ACOG has issued an opinion noting that
“protocols and checklists have been shown to improve
patient safety through standardization and communica-
tion. Standardization of practice to improve quality
776 PART VIII Anesthetic Complications
outcomes is an important tool in achieving the shared
vision of patients and their health care providers.”91
Some health care organizations and liability insurers
are now adopting strategies to specifically promote these
goals (e.g., offering financial incentives to providers for
completing disclosure training, participating in multidis-
ciplinary didactic training programs to support accurate
interpretation of electronic fetal heart rate tracings, the
adoption of other safe practices). Federal agencies,
working with health care organizations and liability pro-
viders, are also supporting similar initiatives.92
LIABILITY PROFILES IN OBSTETRIC
ANESTHESIA: THE AMERICAN SOCIETY
OF ANESTHESIOLOGISTS CLOSED-
CLAIMS PROJECT
In 1985 the ASA Committee on Professional Liability
began an ongoing study of insurance company liability
claims involving anesthesiologists. Cases that are closed
(i.e., no longer active) are reviewed by practicing anes-
thesiologists, abstracted, double-checked by the ASA
Closed-Claims Committee, and entered into a computer
database. In 1991 and 1996 comprehensive analyses of
obstetric anesthesia claims were published, based on a
total database of 1541 and 3533 claims, respectively.93,94
In 2009, another publication compared obstetric claims
from 1990 to 2003 with those before 1990.95 As of
December 2010, some 9536 claims (excluding those for
dental injuries) from more than 35 insurance companies
across the country have been reviewed and entered into
the ASA Closed-Claims Project database. The analysis
reported in this chapter focuses specifically on the 640
obstetric claims in the ASA Closed-Claims Project data-
base between 1990 and 2010.
It is important to recognize the limitations of this kind
of study. A closed-claims study cannot determine the
incidence of a complication, for a number of reasons.
First, the denominator is unknown. Neither the total
number of anesthetics given each year in each category
nor the actual number of injuries per year is known.
Second, not all injuries result in a claim of malpractice,
and the anesthesiologist may not be named in a claim
resulting from an anesthesia-related injury. This latter
category may comprise a significant population of
patients, which may make the relationship between cause
and injury impossible to construct.96 Conversely, anesthe-
siologists may be named in claims in which there was no
anesthesia-related adverse event.
The claims that have been reviewed are not a random
sample of such data. However, given the large number
of participating insurance carriers, they are likely to be
broadly representative of liability claims involving obstet-
ric anesthesia care in the United States.
Despite the significant limitations of closed-claims
studies, such efforts do provide information that cannot
be obtained in other ways. For example, claims involving
obstetric anesthesia care can be compared with those
from other types of anesthesia practice to determine
whether different patterns of injury and outcome emerge.
80
70
Claims by decade (%)
60
50
40
30
20
10
0 N=724
1970s 1980s 1990s 2000s
n=60 n=290 n=264 n=110
General Neuraxial
FIGURE 33-1 ■ The percentage of claims in which the anesthetic
technique for cesarean delivery was either neuraxial or general.
Data are shown as the percentage of the total number of claims
for the indicated decade. (Data from the ASA Closed-Claims
Project database, N = 9536, December 2010.)
We can ask such questions as: What injuries are most
common in obstetric anesthesia claims? What is the rela-
tionship between the type of anesthesia and the presumed
injury? What are the precipitating events that lead to the
injuries? How do payment rates compare between obstet-
ric and nonobstetric claims?
Approximately 12% of the 9536 claims in the ASA
Closed-Claims Project database involve anesthesia care
for patients undergoing vaginal or cesarean delivery. Of
these obstetric claims, 66% involve cesarean delivery.
The anesthesia workforce surveys conducted in 1981,
1992, and 2001 revealed a significant increase in the pro-
portion of cesarean deliveries performed under neuraxial
anesthesia and a corresponding decrease in those per-
formed with general anesthesia.97 An analysis of the ASA
Closed-Claims Project database illustrates a similar trend
in the claims for cases involving neuraxial and general
anesthesia for cesarean delivery (Figure 33-1).
Anesthesia-Related Injuries
Table 33-1 lists all injuries or complications that had a
frequency of 3% or greater in the obstetric claims that
occurred in 1990 or later, as well as the type of anesthesia
that resulted in the injury. Maternal nerve damage and
neonatal brain damage were the most common injuries.
In contrast to previous analyses, the proportion of nerve
damage claims is now greater than maternal death claims.
This finding likely reflects the increased use of neuraxial
anesthesia (with a corresponding decrease in the use of
general anesthesia) in obstetric anesthesia practice over
the past two decades. A significantly greater proportion
of nerve damage claims were associated with vaginal
delivery compared with cesarean delivery. Although
nerve damage in obstetric patients is more likely second-
ary to obstetric causes (e.g., vaginal delivery, fetal position
during pelvic descent, maternal position during the
second stage of labor [see Chapter 32]) than directly
attributable to neuraxial anesthesia, the obstetric claims
analysis published in 2009 found that nearly two thirds
of the nerve damage claims may be directly linked to a
neuraxial procedure.95 Unfortunately, in many cases it is
 33 Medicolegal Issues in Obstetric Anesthesia 777

TABLE 33-1 Most Common Injuries in Obstetric Anesthesia Claims*

Type of Anesthesia Type of Delivery
Obstetric Claims NEURAXIAL ANESTHESIA GENERAL ANESTHESIA CESAREAN VAGINAL
Injury (n = 640) (n = 489) (n = 123) (n = 387) (n = 286)
Maternal nerve damage 19% (119) 24% (117)‡ 2% (2) 13% (49)‡ 29% (69)
Neonatal brain damage 16% (102) 13% (58)‡ 29% (33) 21% (74)‡ 13% (28)
Maternal death 15% (94) 10% (49)‡ 36% (44) 18% (69)‡ 7% (17)
Headache 11% (72) 15% (72)‡ 0% (0) 7% (27)‡ 19% (45)
Back pain 10% (62) 13% (62)‡ 0% (0) 5% (20)‡ 17% (42)
Neonatal death 9% (60) 6% (26)‡ 24% (27) 13% (46)‡ 4% (9)
Emotional distress 8% (54) 9% (46) 6% (7) 11% (41)† 5% (13)
Maternal brain damage 7% (44) 7% (34) 7% (8) 9% (36)† 3% (8)
Pain during anesthesia 6% (38) 7% (32) 3% (4) 9% (34)‡ 2% (4)
Aspiration pneumonitis 1% (5) < 1% (2) 2% (3) 1% (4) < 1% (1)

*The most common injuries in the obstetric group of claims that occurred in 1990 or later are shown as % (n). Percentages are based on
the total claims in each group. Some claims indicated more than one injury and are represented more than once. Claims involving brain
damage include only patients who were alive when the claim was closed. Claims for which type of anesthesia or form of delivery were
unknown are excluded.
†P ≤ .01; ‡P < .001 compared with general anesthesia or vaginal delivery.
Data from the American Society of Anesthesiologists Closed-Claims Project database, N = 9536, December 2010.

almost impossible to differentiate between an anesthetic

or obstetric cause for the nerve injury; appropriate neu- TABLE 33-2 Maternal Injuries Compared
rologic consultation and investigation improves the like- with Similar Injuries in
lihood of a correct diagnosis in these patients. Nonobstetric Claims*
Some obstetric patients are reluctant to accept neur- Maternal Nonobstetric
axial anesthesia because of the fear of nerve injury. Injury Claims Injury Claims
Because such injuries are uncommon, anesthesia provid- Type of Injury (n = 640) (n = 4410)
ers often minimize the risks of neurologic injury in their Maternal/patient nerve 19% (119) 20% (868)
discussions with patients. An ASA Closed-Claims analysis damage
of injuries associated with neuraxial anesthesia in the Maternal/patient death 15% (94)‡ 30% (1325)
1980s and 1990s found that a significantly greater pro- Headache 11% (72)‡ 1% (44)
portion of obstetric neuraxial claims were associated with Back pain 10% (62)‡ 1% (62)
temporary and low-severity injuries than nonobstetric Emotional distress 8% (54)‡ 5% (201)
claims.98 Epidural abscess accounted for a greater propor- Maternal/patient brain 7% (44)† 10% (442)
tion, and epidural hematoma a significantly smaller pro- damage
portion, of obstetric neuraxial claims than nonobstetric Pain during anesthesia 6% (38)‡ 1% (45)
neuraxial claims. Combining both epidural abscess and Aspiration pneumonitis 1% (5)‡ 4% (164)
meningitis claims, infection was the leading cause of
*The most common maternal injuries in the obstetric anesthesia
obstetric neuraxial complications (46%).98 claims occurring 1990 or later are shown as % (n). Percentages
A nonreassuring fetal heart rate tracing and urgent or are based on the total claims in each group. Some claims had
emergency cesarean delivery were found to be factors in more than one injury and are represented more than once.
nearly three fourths of neonatal death/brain damage Claims involving brain damage include only patients who were
claims in 1990 or later.95 Determining whether a causal alive when the claim was closed.
†P ≤ .01; ‡P < .001 compared with nonobstetric claims.
link exists between the anesthetic care (negligent or oth- Data from the American Society of Anesthesiologists Closed-
erwise) and the injury to the neonate is often difficult. A Claims Project database, N = 9536, December 2010.
closer analysis of neonatal brain damage cases in the
1990s found that anesthesia care may have contributed
to adverse fetal outcome in less than a fourth of cases; in satisfactory anesthesia during cesarean delivery, as do
half of these cases, some delay in anesthesia care was patients undergoing other types of surgery. It is also
alleged.95 The payment rate on behalf of the anesthesiolo- interesting that headache and back pain are relatively
gist was 21% in the claims involving neonatal death/brain more common in the claims involving vaginal delivery.
damage, which was significantly lower than the payment This may result, in part, from factors unique to labor and
rate of 60% for maternal death/brain damage claims.95 vaginal delivery (e.g., back strain from assuming unnatu-
Some injuries (e.g., headache, pain during anesthesia, ral positions during childbirth, increased risk for post–
back pain) were almost exclusively associated with neur- dural puncture headache after bearing down during the
axial anesthetic techniques. Most claims involving pain second stage of labor).99,100
during anesthesia were associated with cesarean delivery Table 33-2 lists the most common injuries identified
(see Table 33-1). This finding suggests that inadequate after eliminating those involving only the neonate. This
analgesia for labor and vaginal delivery is rarely a source allows comparison of the profiles of maternal injury with
of liability risk. However, women expect to have those among the nonobstetric population. The most
778 PART VIII Anesthetic Complications

TABLE 33-3 Most Common Precipitating Events in Obstetric Anesthesia Claims*

Type of Obstetric
Anesthesia
Nonobstetric Claims Obstetric Claims NEURAXIAL GENERAL
Event (n = 4410) (n = 640) (n = 489) (n = 123)
Respiratory system events 22% (959)§ 5% (29) 1% (7)§ 16% (20)
Difficult intubation 6% (250)§ 2% (15) < 1% (1)§ 11% (14)
Aspiration 3% (149)§ 1% (5) < 1% (1)† 2% (3)
Inadequate ventilation/oxygenation 5% (202)§ 1% (7) 1% (5) 1% (1)
Premature extubation 2% (109)§ < 1% (1) 0% (0) 1% (1)
Airway obstruction 2% (72)§ < 1% (1) 0% (0) 1% (1)
Block-related events 11% (473)§ 41% (265) 54% (265)§ 0% (0)
High spinal/epidural 1% (30)§ 6% (41) 8% (41)§ 0% (0)
Dural puncture headache < 1% (20)§ 6% (40) 8% (40)§ 0% (0)
Inadequate analgesia < 1% (11)§ 5% (35) 7% (35)§ 0% (0)
Retained catheter < 1% (6)§ 4% (25) 5% (25)‡ 0% (0)
Neuraxial cardiac arrest 1% (43)† 2% (13) 3% (13) 0% (0)
Other block-related** 5% (240)§ 16% (101) 21% (101)§ 0% (0)
Surgical events/patient condition 9% (416)§ 25% (158) 19% (95)§ 38% (47)
Cardiovascular system events 15% (682)‡ 11% (69) 7% (35)§ 26% (32)
Hemorrhage 3% (126)§ 6% (38) 3% (15)§ 18% (22)
Pulmonary embolism 1% (49)§ 4% (23) 3% (15) 7% (8)
Medication events 8% (351)§ 4% (27) 4% (18) 6% (7)

*The most common damaging events occurring 1990 or later are shown as % (n). Chronic pain claims are excluded. Percentages are
based on the total claims in each group. Specific precipitating events were not identified in all claims. Some claims indicated more than
one damaging event, but only the most significant event is listed. Columns do not sum to 100% as minor events are not listed.
Statistical comparisons are made between obstetric and equivalent nonobstetric claims as well as between obstetric neuraxial and
obstetric general anesthetics.
†P < .05; ‡P < .01; §P < .001 compared with obstetric claims or general anesthesia.
**Of the 101 other block-related claims, 2% (12) were epidural abscess, 1% (5) were epidural hematoma, 2% (13) were other permanent
disabling nerve injuries, 7% (43) were temporary or minor nerve injuries, 1% (5) were meningitis, and 4% (23) were other
miscellaneous block-related events.
Data from the American Society of Anesthesiologists Closed-Claims Project database, N = 9536, December 2010.

striking finding is that the maternal claims contain a
much higher proportion of relatively minor injuries such
as headache, pain during anesthesia, back pain, and emo-
tional distress (35%) than do the nonobstetric claims
(8%). Obstetric patients may be at greater risk for some
of these complications.98 For example, the popularity of
neuraxial anesthetic techniques in obstetric anesthesia
combined with the greater risk for post–dural puncture
headache in young females may account for the greater
number of headache claims in the obstetric group. Pain
during anesthesia is almost always associated with cesar-
ean delivery conducted with neuraxial anesthesia. These
claims may have resulted from a reluctance by the anes-
thesiologist to convert to general anesthesia because of
the risk for aspiration or anticipated difficult airway man-
agement. In some cases claims may have resulted from
other factors, such as unrealistic expectations or general
dissatisfaction with the care provided.
Precipitating Events Leading to Injuries
Perhaps even more important than the injuries and com-
plications that may result in claims are the precipitating
events that lead to the injuries (Table 33-3). Critical
events involving the respiratory system were the most
common anesthesia-related events in both the obstetric
and nonobstetric claims involving general anesthesia.
The proportion of difficult intubation and aspiration
claims in the obstetric claims was found to be signifi-
cantly less than that in the nonobstetric claims. Difficult
intubation was the precipitating event in 15 (2%) of the
obstetric claims, and pulmonary aspiration was the pre-
cipitating event in 5 (1%) of the obstetric claims. Among
the five aspiration claims, three were related to general
anesthesia but only one was associated with a difficult
intubation; the other two occurred during the preinduc-
tion period. In a fourth case, the patient was sedated with
an unprotected airway and aspirated after vomiting. The
final case was unrelated to anesthesia.
Several reports have suggested that difficult intubation
and pulmonary aspiration are the leading causes of
anesthesia-related maternal mortality.101-103 Interestingly,
a study of anesthesia-related maternal deaths in the state
of Michigan between 1985 and 2003 found that no deaths
occurred during induction of anesthesia; all cases related
to airway obstruction or hypoventilation (> 50% of
anesthesia-related deaths) occurred postoperatively, often
when monitoring and supervision were inadequate.104
Despite the reduction in the proportion of claims for
respiratory events in the past two decades,95 these data
reemphasize that (1) all obstetric patients are at risk for
airway complications (e.g., difficult intubation, aspira-
tion); (2) anesthesia providers should be familiar with
protocols such as the ASA difficult airway algorithm; (3)
equipment should be immediately available for the man-
agement of patients in whom tracheal intubation proves
difficult; and (4) obstetric patients require the same stan-
dard of postanesthesia care as nonobstetric patients (see
ASA “Guidelines for Neuraxial Anesthesia in Obstetrics”
[Appendix A]).
Obesity increases the risk for both obstetric105 and
anesthetic106,107 complications in pregnant women (see

Chapter 50). In the ASA Closed-Claims Project database,
damaging events related to the respiratory system were
significantly more common among claims involving
obese parturients (18%) than in the claims involving non-
obese parturients (8%) (P < .05). However, the rates of
other injuries were not significantly different in obese
and nonobese parturients.93
With the increasing use of neuraxial anesthesia for
both vaginal and cesarean deliveries, it is not surprising
that neuraxial blockade–related events are the most
common precipitating events in the obstetric population,
accounting for a significantly greater proportion of cases
than found among the nonobstetric claims. The use of
an effective epidural test dose, the incremental injection
of the therapeutic dose of local anesthetic, the availability
of ropivacaine and levobupivacaine, and the use of pencil-
point spinal needles (leading to a greater rate of spinal
anesthesia) have undoubtedly contributed to a reduction
in the incidence of serious adverse outcomes associated
with epidural anesthesia in obstetric patients.102 However,
the database includes several claims for neuraxial
anesthesia–associated cardiac arrest (predominantly sec-
ondary to unintentional intrathecal injection of drug) and
for high spinal or epidural neuroblockade. Ironically, the
number of claims for inadequate analgesia during neuro-
blockade, usually during cesarean delivery, has also
increased.
The proportion of cardiovascular events in the obstet-
ric claims has increased over time; maternal hemorrhage
was the most common precipitating event (6%). More
than half of the cases were associated with abnormal
placentation (placenta accreta or percreta); in several
cases the abnormal placentation was not diagnosed before
delivery. Inability or failure of the anesthesia provider
to adequately resuscitate the patient was a factor in the
majority of cases. Delayed diagnosis of hemorrhage,
poor communication among providers, unavailability of
blood products, and inappropriate blood product replace-
ment were other contributing factors. Death secondary
to maternal hemorrhage is believed to be the most
common preventable cause of maternal mortality.108 Early
TABLE 33-4 Payment Data for Obstetric Anesthesia Claims Compared with Nonobstetric
Anesthesia Claims*
Type of Practice
NONOBSTETRIC CLAIMS OBSTETRIC CLAIMS
(n = 4410) (n = 640)
Payment 53% (2227) 45% (274)‡
Made
Median 254,000 398,250‡
Payment ($)
Range ($) 129 to 33.96M 1293 to 19.65M
M, million.
*Payment frequency, shown as % (n), and dollar amounts (adjusted to 2011 values). Percentages are based on the total number of
claims occurring 1990 or later in each group with payment data. Statistical comparisons are made between obstetric and nonobstetric
claims, between obstetric neuraxial and general anesthetics, and between vaginal and cesarean deliveries. Claims with missing
payment data were excluded from the analysis.
†P ≤ .01
‡P ≤ .001.
Data from the American Society of Anesthesiologists Closed-Claims Project database, N = 9536, December 2010.
33 Medicolegal Issues in Obstetric Anesthesia 779
diagnosis and intervention (by both surgical and anesthe-
sia providers), and the use of major obstetric hemorrhage
protocols to streamline response systems and improve
availability of blood products, have been shown to reduce
major hemorrhage rates and improve outcomes (see
Chapter 38).109
An embolic disorder was the second most common
cardiovascular event related to maternal death in the ASA
Closed-Claims Project database. Of the 23 embolic dis-
order claims, 20 cases were due to amniotic fluid embo-
lism; only 3 cases were due to venous thromboembolism.
This finding may reflect the effectiveness of peripartum
thromboprophylaxis measures that have been widely
introduced over the past decade.
Payments
The practice of obstetrics is associated with high medi-
colegal risk. The obstetric anesthesia provider may also
be named in a malpractice suit, in an attempt to increase
payments beyond policy limits. This belief is reinforced
by well-publicized cases involving huge monetary awards.
However, the ASA Closed-Claims Project database pro-
vides a somewhat different perspective. For the purposes
of this discussion, a payment is considered to be any
expenditure by the insurance carrier in the form of a
settlement or award. Obstetric claims constitute 12% of
the ASA Closed-Claims database. Similarly, the obstetric
claims account for 11% of the total number of payments
made and 14% of the total dollars expended in payments.
Clearly, the payments for obstetric claims were not dis-
proportionately frequent or large. Table 33-4 provides
additional payment information. For claims in which
payments were made, the median payment was greater in
the obstetric group. This is not surprising, considering
that there are two patients at risk in obstetric anesthesia
cases, and both the mother and her infant are younger
than the average age of patients in the nonobstetric files.
Although the obstetric claims contained a lower propor-
tion of deaths (either maternal or newborn), there was a
greater proportion of brain injuries (either maternal or
Type of Obstetric Anesthesia Type of Delivery
NEURAXIAL GENERAL CESAREAN VAGINAL
(n = 489) (n = 123) (n = 387) (n = 241)
43% (198)† 55% (65) 49% (180) 39% (87)†
284,375‡ 1,237,500 557,500 172,000‡
1293 to 19.65M 8000 to 11.55M 6223 to 19.65M 1293 to 8.33M
780 PART VIII Anesthetic Complications
newborn) than in the nonobstetric claims. Such injuries
typically result in higher payments for projected lifelong
care requirements.
Lessons Learned
The obstetric anesthesia claims reveal a risk profile that
differs from that of the nonobstetric anesthesia claims.
Surprisingly, since 1990, problems involving airway man-
agement, especially difficult intubation and pulmonary
aspiration, are disproportionately represented in the
nonobstetric claims. The continuing decrease in the use
of general anesthesia in obstetric cases, and the wide-
spread use of difficult airway algorithms, may be factors
that have contributed to improvements in obstetric
patient safety. The incidence of systemic local anesthetic
toxicity has diminished. However, the ASA Closed-
Claims Project database continues to receive information
on claims for severe adverse outcome resulting from
neuraxial anesthesia–associated cardiac arrest (primarily
owing to unintentional and unrecognized intrathecal
injection of drug). The data suggest that we need to
continue our efforts to reduce the risks of major compli-
cations of both general and neuraxial anesthesia. The
large number of claims for pain during neuraxial anesthe-
sia for cesarean delivery, however, suggests that general
anesthesia should not be delayed or avoided if a patient
has inadequate anesthesia from neuraxial blockade.
Unfortunately, anesthesiologists frequently are inap-
propriately named in lawsuits involving “bad baby” out-
comes, despite increasing evidence that cerebral palsy is
associated with birth asphyxia in only 6% to 8% of cases,
and even in these children, prevention may not be pos-
sible.110 In 2003, an ACOG task force published criteria
to help define the causal relationship between acute intra-
partum events and cerebral palsy (see Chapter 10).111
Among cases in the ASA Closed-Claims Project database
from 1990 and later, anesthesia-related events contribut-
ing to newborn death and brain damage were uncom-
mon; a payment was made on behalf of the anesthesiologist
in only 21% of claims for newborn death/brain damage.95
Potentially preventable anesthetic causes of newborn
injury included delays in anesthetic care (primarily due
to the anesthesiologist being away from the hospital or
poor choice of anesthesia technique), substandard anes-
thesia care, and poor communication between the obste-
trician and the anesthesiologist (often related to the
urgency of cesarean delivery).95
Perhaps the most surprising finding of the analysis of
the obstetric cases in the ASA Closed-Claims database is
the large proportion of relatively minor injuries in the
obstetric claims. This proportion markedly contrasts to
that in the nonobstetric claims, suggesting that efforts to
reduce the incidence of major injuries will not solve the
medical malpractice problem in obstetric anesthesia.
Clearly, factors other than major injury must motivate
patients to bring a claim. It is overly simplistic to equate
lawsuits with injury. A 1991 study found that the propor-
tion of patients harmed by negligent care who actually
file a claim is only 2%.94 However, a lawsuit does not
occur unless someone perceives that he or she or a loved
one has been wronged. One of the unique advantages of
closed-claims studies is that they reflect the consumer
perspective.
To some extent the large proportion of relatively
minor injuries in the obstetric claims may reflect a higher
incidence of such problems among obstetric patients.
However, it is clear that many of these patients were
unhappy with the care provided and believed that they
had been ignored or mistreated. It has been suggested
that malpractice litigation serves the purposes not only
of reparation of injury and deterrence of substandard care
but also of emotional vindication.112,113 Anesthesia care
providers should give attention to conducting themselves
in such a manner that patients will not be motivated to
bring suit for an unexpected outcome.114 The importance
of establishing good rapport with patients cannot be
overemphasized. Whenever possible, anesthesiologists
should involve themselves in the prenatal education
process. A careful preanesthetic evaluation is very impor-
tant and should occur as early in labor as possible. Special
care should be taken to provide patients with realistic
expectations and knowledge of potential major and minor
risks associated with anesthetic procedures.
PROFESSIONAL PRACTICE STANDARDS
One beneficial effect of closed-claims analyses has been
the greater attention to steps to minimize the occurrence
of severe adverse outcomes. On the basis of an analysis
of malpractice claims in 1985, the Harvard University–
affiliated medical institutions adopted a set of minimal
monitoring standards within their system. Since that time
the malpractice losses (normalized for the number of
anesthetics given) have declined by more than 50%.115
In 1986, the ASA became the first professional medical
society to promulgate professional standards of care.
The introduction of the ASA “Standards for Basic Intra-
Operative Monitoring” was accompanied by a decrease
in the number of anesthesia-related liability claims.
Although it is difficult to prove a cause-and-effect rela-
tionship between the introduction of these standards and
fewer claims and payments, the arguments seem compel-
ling.115 Better monitoring, especially the greater use of
pulse oximetry and capnography, has undoubtedly con-
tributed to the decrease in severe complications and asso-
ciated large awards.116
The ASA also has directed its efforts at improving
obstetric anesthesia care in this country through a
variety of position statements. In 1986, the ASA House
of Delegates and the ACOG approved a joint statement
entitled “Optimal Goals for Anesthesia Care in Obstet-
rics” (see Appendix C). This policy-oriented document
recognized the need for (1) appropriately trained physi-
cians to provide anesthesia care, (2) a qualified obstetri-
cian to be readily available during the administration
of anesthesia, and (3) equipment, facilities, and support
personnel for labor and delivery units equal to that
provided in the surgical suite. The document served as
the basis for the ASA “Standards for Conduction Anes-
thesia in Obstetrics,” which was approved by the ASA
House of Delegates in 1988. Unfortunately, unlike the
widely acclaimed “Standards for Basic Intra-Operative

Monitoring,” these obstetric anesthesia practice stan-
dards generated immediate and widespread controversy.
In part, this was because they had implications with
regard to nursing, obstetric, and pediatric practices and
were considered too restrictive and too difficult to meet,
especially for smaller or rural obstetric facilities. Conse-
quently, in 1991, the document was revised and renamed
“Guidelines for Regional Anesthesia in Obstetrics.” The
current document was revised in 2010 and renamed
“Guidelines for Neuraxial Anesthesia in Obstetrics” (see
Appendix A).
In October 1998, the ASA House of Delegates
approved a document developed by the ASA Task Force
on Obstetrical Anesthesia. This evidence-based docu-
ment, titled “Practice Guidelines for Obstetrical Anes-
thesia,” is more clinically oriented than the aforementioned
guidelines and was last amended in 2007 (see Appendix
B). It synthesizes a large body of published studies “to
enhance the quality of anesthesia care for obstetric
patients, reduce the incidence and severity of anesthesia-
related complications, and increase patient satisfaction.”
The document provides systematic analyses and meta-
analyses of specific anesthetic techniques and practices,
along with general recommendations.
It is hoped that these practice guidelines will positively
affect the quality of care and the liability profiles in
obstetric anesthesia practice. Practice guidelines suggest
a standard of care and are based on both evidence and
expert opinion. As such they often are used as evidence
in cases of medical malpractice. Such documents can be
used for exculpatory purposes (i.e., to exonerate a defen-
dant physician) or as inculpatory evidence (i.e., to impli-
cate a defendant physician). A two-part study surveyed
960 randomly selected malpractice attorneys and 259
open and closed claims from two malpractice insurance
companies.117 The claims were opened during a 2-year
period (1990 to 1992) and included all claims involving
obstetric and anesthetic cases. Practice guidelines played
a pivotal role in 17 cases. In 12 cases they were used as
inculpatory evidence and in 4 as exculpatory evidence (in
1 case the use of practice guidelines could not be classi-
fied). Similarly, the surveyed attorneys responded that
guidelines were used to implicate malpractice more than
twice as often as they were used to defend against a claim
of malpractice (54% versus 23%). The ACOG guidelines
were used most frequently in these claims, but the ASA
guidelines were used rarely. The authors speculated that
the simplicity and clarity of the ASA guidelines may make
compliance easier. Clearly, practice guidelines may act as
a double-edged sword in medical litigation. Nonetheless,
guidelines may reduce litigation expenses by dissuading
plaintiffs’ attorneys from pursuing cases in which guide-
lines have been met or by encouraging early settlement
by the defense in cases in which guidelines were not fol-
lowed without good reason.
POTENTIAL RISK MANAGEMENT
PROBLEM AREAS
Obstetric anesthesia often is an unpredictable, difficult,
and high-stress environment for the anesthesia provider.
33 Medicolegal Issues in Obstetric Anesthesia 781
Compared with the operating room environment, the
typical obstetric service is less familiar and more chaotic.
The role and responsibility of the anesthesia provider is
less clearly defined. Anesthesia services may be urgently
requested in a situation in which there is little informa-
tion available about the patient and the patient is unable
or unwilling to answer questions. Laboring women typi-
cally are not sedated and calm when they request neur-
axial anesthesia. Rather, women in active labor may be
uncooperative and even combative during the adminis-
tration of neuraxial anesthesia. The anesthesia provider
may need to provide care for multiple patients simultane-
ously and may need to entrust some monitoring respon-
sibilities to nurses. In some situations the choice of
anesthesia may be dictated by others, and anesthesia pro-
viders may feel that they are little more than technicians.
Perhaps it is not surprising that many anesthesia provid-
ers are uncomfortable in this environment and prefer to
minimize their liability and discomfort by limiting their
time practicing obstetric anesthesia.
Support Persons during Labor
Unique to obstetric anesthesia care is the presence of the
patient’s partner or other support persons during anes-
thesia care. In the past it was considered a privilege for a
husband or relative to be present during a cesarean deliv-
ery, and often there were preconditions such as documen-
tation of attendance at prenatal classes. Today, in many
obstetric centers, it is taken for granted that one or more
support persons will be present for virtually any type of
delivery. Undoubtedly, this trend has resulted in part
from a sincere desire to facilitate a more family-centered
experience. A second motivation may be to attract patients
in a competitive, market-oriented environment.
We are not aware of specific case law regarding issues
involving support persons. However, the topic does raise
a number of risk management questions. What are the
parturient’s rights with regard to having support person-
nel present during labor and delivery? What are the
rights of the institution and health care providers? The
presence of a support person often helps reassure and
calm the parturient, but this is not always true. In some
cases the presence of a support person can adversely
affect patient care. Melzack118 found that women have
higher pain scores during labor when the husband is
present. Similarly, Orbach-Zinger et al.119 found that
parturient anxiety and pain during the epidural procedure
were higher in parturients randomized to the partner’s
presence during the neuraxial procedure compared with
the partner’s absence from the labor room.
Many anesthesia providers are not accustomed to
having lay observers present during anesthesia proce-
dures. Their presence can distract the provider’s atten-
tion and adversely affect judgment and performance. It
is helpful, especially in obstetrics, for the anesthesiologist
to develop a close physician-patient relationship. The
presence of a support person often distracts the patient’s
attention away from the conversation and activities of the
anesthesiologist. In some cases this is helpful, but in
others that distraction interferes with the provision of
anesthesia care.
782 PART VIII Anesthetic Complications
The support person also may be at risk for unantici-
pated injury.120 We are aware of a number of instances in
which a father suffered an injury as a consequence of a
vasovagal episode. In one case the father dropped the
newborn on the floor as he lost consciousness. Although
there was no legal action in any of these cases, the poten-
tial liability issues are self-evident.
In some cases, support persons may request that they
be present during the delivery even when the patient
receives general anesthesia. At the University of
Washington we do not allow support persons in the oper-
ating room during administration of general anesthesia;
the patient undergoing general anesthesia does not
require “support” in the traditional sense, and the pos-
sibility for complications is ever present. Even under the
best of circumstances, the presence of such a person
makes it more difficult for the anesthesia provider to give
full attention to the patient. Routine anesthesia practices
and procedures during general anesthesia may be fright-
ening and misunderstood by laypersons. No matter how
well intentioned and well prepared, the sight of a loved
one who is unresponsive, intubated, and mechanically
ventilated can be traumatic emotionally.
Videotaping
Physicians and hospitals also should consider policies
regarding the use of audio/video equipment in the deliv-
ery room. Clearly all patients have a right to refuse to be
photographed, filmed, or videotaped. However, a woman
often wants a photographic record or videotape of events
surrounding her delivery. Such a record can provide
dramatic documentation of unfortunate interactions or
suboptimal medical care. Courts typically allow video-
tapes to be entered into evidence and permit videotapes
to be edited reasonably.121 The visual impact of delivery
room events can have a profound impact on a jury,
regardless of whether the videotape has been edited to
the advantage of the plaintiff. After the presentation of
such evidence, it may be difficult to convince a jury of
the appropriateness of treatment.
A survey of 35 members of the American College of
Legal Medicine identified nine cases in which an obstet-
ric videotape was used as evidence.121 In response to such
cases, some hospitals have instituted policies to limit the
use of video equipment in their labor and delivery suites.
Such policies may antagonize patients and prompt them
to seek care elsewhere. A balanced approach may be the
best solution (i.e., it may be reasonable to allow use of
video equipment but to establish clear, fair, and unam-
biguous policies regarding its use). The policies must be
understood by all members of the staff and should be
made known to patients and their families, preferably
before the patient is admitted to the hospital. Prenatal
classes can serve as a means to disseminate such informa-
tion. One approach is to have informational material and/
or specific consent forms for patients and their families.
Another option is to combine such policy statements with
a “hold harmless” waiver for the support person. Although
none of these measures can eliminate the potential liabil-
ity risks associated with these issues, they may serve to
educate patients and their families about their rights and
about hospital policies and procedures.
KEY POINTS
• Effective communication with the parturient and
her family is an important component of obstetric
anesthesia practice.
• Honest, caring, and comprehensive discussion
with the patient before the administration of
anesthesia meets legal and ethical standards,
improves the image of the anesthesiologist, and
reduces the likelihood of dissatisfaction and
possible litigation after unanticipated
complications.
• Informed consent may be either verbal or both
verbal and written. Written consent provides
documentation that the consent process has
occurred. If possible, it is best to obtain consent
early in labor, before the onset of severe pain.
• Refusal of care by pregnant patients may raise
unique legal and ethical concerns. In such
situations, the woman’s competency or ability to
make an informed medical decision may be an
issue. When the patient is competent, the health
care providers should attempt to resolve
treatment conflicts through additional patient
education and discussion. Rarely, it may be
advisable to seek a court order to resolve
competency and/or medical treatment issues.
• Maternal nerve injury was the most common
damaging event in obstetric anesthesia claims in
the American Society of Anesthesiologists (ASA)
Closed-Claims Project database from 1990
onwards. Detailed neurologic examination,
involvement of neurologic specialists, and
appropriate investigations can assist in making an
accurate diagnosis.
• Critical events involving the respiratory system
were the most common anesthesia-related
events leading to adverse outcome in both
obstetric claims and nonobstetric claims involving
general anesthesia in the ASA Closed-Claims
Project database. Use of a difficult airway
algorithm, availability of specialized equipment
(e.g., a video laryngoscope), and high-quality
postoperative care after general anesthesia may
help reduce the incidence of these events.
• Obstetric claims include a much higher
proportion of relatively minor injuries (e.g.,
headache, pain during anesthesia, back pain,
emotional distress) than nonobstetric claims.
• Guidelines for obstetric anesthesia practice have
been published by the ASA, and a joint
statement has been published by the ASA and
the American College of Obstetricians and
Gynecologists.
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OBSTETRIC
COMPLICATIONS
The philosophy of obstetric management changed in the
early decades of the twentieth century, and this change
had a profound effect on the use of obstetric anesthesia.
Until 1900, obstetricians considered childbirth a physi-
ologic process best left to proceed without interference
by physician or midwife. They criticized “meddlesome
practices” for normal deliveries. Then a new generation
of obstetricians, concerned about the high rate of com-
plications associated with routine deliveries, began to
advocate more active management of childbirth. They
envisioned the practice of obstetrics as a form of preven-
tive medicine. Leaders of this movement, such as Joseph
DeLee of Chicago, became strong advocates for the
routine use of episiotomy, forceps delivery, and manual
removal of the placenta. Of course, these measures also
necessitated greater use of anesthesia.1
DeLee acknowledged that his method “interferes
much with Nature’s process,” but he felt justified. With
conservative management, he said, a dismal outcome was
so common that he “often wondered whether Nature did
not deliberately intend women should be used up in the
process of reproduction, in a manner analogous to that
of the salmon, which dies after spawning. Perhaps lacera-
tion, prolapse and all the evils are, in fact, natural to labor
and therefore normal. … If you adopt this view, I have no
ground to stand on, but, if you believe that a woman after
delivery should be as healthy, as well as anatomically
perfect as she was before, and that the child should be
PA RT I X
Donald Caton, MD
undamaged, then you will have to agree with me that
labor is pathogenic, because experience has proved such
ideal results exceedingly rare.”2 Other physicians agreed
with DeLee. Austin Flint asked how a “process that kills
thousands of women each year, leaves a quarter of all
cases more or less invalidate, is attended by severe pain
and tearing of tissues, and kills three to seven percent
of all babies, can be called a normal or physiologic
function?”3
The change in the philosophy of obstetric manage-
ment was further stimulated by early feminists. In the
United States, but especially in Great Britain, feminists
formed a coalition with obstetricians to improve teach-
ing, build new facilities, and fund better care for women
in hospitals. They also demanded better anesthesia cov-
erage and even funded research to develop new anesthetic
techniques. In response to this movement, physicians
developed many new techniques for laboring patients.
Many of the anesthetic methods now favored for normal
deliveries are a direct outgrowth of public support for
innovation and improvement that began during this time.
REFERENCES
1. Leavitt W, Joseph B. DeLee and the practice of preventive obstet-
rics. Am J Public Health 1988; 78:1353-9.
2. DeLee JB. The prophylactic forceps operation. Am J Obstet Gynecol
1920; 1:34-44.
3. Flint A. Responsibility of the medical profession in further reducing
maternal mortality. Am J Obstet Gynecol 1925; 19:864-6.