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Key words: Control, liability.
In the years I have served as General Counsel for the American Association of Nurse Anesthetists (AANA), no subject has received more of my attention than the question of a surgeon's liability for the negligence of a nurse anesthetist. It is pretty remarkable that I should have devoted so much attention to this subject when you consider how safe anesthesia has become. The incidence of a major anesthetic problem has become so rare that most surgeons will spend their entire careers without ever seeing one. So, why are surgeons so concerned? In the mid 1980s, an increase in the number of anesthesiologists led to increased competition between nurse anesthetists and anesthesiologists. Occasionally, some anesthesiologists would tell surgeons that it would be better to work with anesthesiologists than nurse anesthetists to avoid liability. One anesthesiologist wrote that no surgeon "should" be held liable when working with an anesthesiologist but "a surgeon or dentist automatically becomes responsible whenever a nurse administers anesthesia without medical direction by an anesthesiologist [emphasis added]." As a legal matter, I knew that the courts did not decide questions of liability based on what state agency happened to issue the provider's license. The courts impose liability only when a surgeon controlled the procedure or participated in the negligence; not simply because the surgeon was working with, or supervising, a nurse anesthetist. Most importantly, I had read enough cases to know that liability was anything but automatic. Nonetheless, even if the warning was inaccurate and unjustified, as a marketing strategy, it worked all too well. Nurse anesthetists needed real answers to counter a threat to their practices.
I have tried to provide accurate information about this subject. To show that liability was not automatic, my columns have described case after case where surgeons were not held liable for the negligence of the nurse anesthetists they were working with or supervising. To show that the same principles were used to determine liability of surgeons for negligence of anesthesiologists and nurse anesthetists, I even provided lists of cases where surgeons got sued or were held liable for anesthesia mishaps when they worked with anesthesiologists. Instead of providing conclusions, I have given citations so that my accuracy and honesty would not...