June 19, 2018
Anesthesia awareness is a condition that causes patients to “accidentally” wake up during surgery and in many cases, causes patients to see and feel things they shouldn’t while under the knife. Historically, anesthesia awareness has been disclosed as one of many rare and unintended potential risks of general anesthesia. So it may surprise you that in recent years, many patients are voluntarily choosing to stay awake during procedures that have historically required them to be unconscious.
The New York Times cites many reasons for the growing trend of “awake surgeries,” including patient education and intrigue, fewer complications, shorter recovery time, and lower costs. While there are many benefits to remaining awake during surgery, there are also a few setbacks. Surgeons performing awake surgeries will now be required to multitask and complete surgical procedures while also attempting to keep an awake patient calm during surgery. Additionally, surgeons and other medical professionals will have to choose their speech wisely in the operating room in order to avoid an increase in medical malpractice claims.
Medical malpractice cases are generally difficult to win and extremely expensive to defend. With the growing trend of awake procedures, a new element may come into play in medical malpractice cases that juries have never been charged with considering: a plaintiff’s testimony regarding their subjective viewpoint during an awake surgery. This non-expert testimony regarding firsthand knowledge of a medical procedure, if deemed to be admissible, could be catastrophic to facilities, physicians, and insurance companies defending against medical malpractice claims in the future.
While the law may take some time to catch up to this new trend, it’s never too early to put the appropriate precautionary measures in place. Facilities and physicians offering the option of remaining awake during surgical procedures should specifically disclose to patients in writing the possibility of additional adverse reactions and negative consequences associated with awake surgeries. Surgeons should also implement a plan prior to surgery in the event that adverse reactions or negative consequences arise during a procedure.
Additionally, surgical staff should undergo extensive training regarding communications during awake surgeries to avoid frivolous claims that a doctor committed malpractice simply because of what was said in the operating room. And insurance companies insuring medical facilities and professionals should be on the lookout for an increase in medical malpractice claims now that patients are able to witness their own surgeries firsthand.
While patients are now given discretion in choosing whether to “stay woke” during surgery, medical facilities, physicians, and their insurers have no choice but to do the same. After all, the most cost effective way to defend against a claim is to anticipate and protect against it before it is brought.