Anytime a patient is anesthetized and knocked out unconscious during a procedure, whether that procedure be a quick wisdom tooth extraction or a spinal fusion, the most important part of that surgery is maintaining an airway. This may seem obvious, but if you think about it, a patient is out unconscious and cannot tell the medical team that he or she cannot breath or is having trouble breathing. This means that the surgical team and medical tea needs to check constantly and ensure that the patient is able to breath and receiving oxygen.
When a patient is not receiving enough oxygen during a surgery, it can easily be medical malpractice. This is through the doctrine of res ipsa loquitur, which is a legal doctrine that states the mere happening is a finding of negligence against the defendant. To be entitled to res ipsa loquitur, or to prove that it applies, a victim must prove that 1) the defendant was in exclusive control of the instrumentality which caused the harm, 2) the act that occurs does not occur but for negligence, and 3) the victim did not cause the harm.
In cases where the anesthetized patient is injured or even killed by a failure to maintain an airway, res ipsa loquitur will almost always apply. Of the elements, the easiest to prove is that the victim did not cause the harm. This is because the victim was anesthetized so he or she could not cause the harm.
Next easiest is that the defendants were in exclusive control of the instrumentality. The instrumentality could mean the patient himself or herself, and the airway, or the apparatus providing the oxygen such as the mask, tanks, or incubation tube. Exclusive control does not mean the defendant is the only one, but it can be shared amongst the entire surgical team in the operating room.
As for the last element, an expert is needed to prove that the act does not occur but for the negligence of the defendants. This is always the most difficult element to prove because you need to prove that the negligent act was below the standard of care and negligent in and of itself. However, when it comes to arguing that an airway was not maintained during a surgery, it should be quite obvious to a jury or trier of fact that this is necessary to keep the patient alive. Thus, when the airway is not maintained, it should be clear that allowing a patient to die is negligent.
But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected] You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.