Death and injury as a result of anaesthesia
Unfortunately, many things can go wrong during surgery, especially the anaesthetic itself. No-one likes to think of a bad outcome of surgery. For most people, a bad experience with an anaesthetic is confined to unpleasant side effects, including nausea and vomiting and low blood pressure. For a few people, there is permanent damage, like paralysis or brain damage. A very small number of patients die as a result of anaesthesia.
The exact number is difficult to ascertain given different definitions and understandings of anaesthetic mortality. Death during surgery is not necessarily a result of the anaesthetic, and patients must remember that the condition that led them to need surgery may be the cause of death.
Also, patients should do all that they can to ensure that they are fit for anaesthetic, by living a healthy lifestyle and ensuring that their anaesthetist has been informed of all prior health conditions, current medications and previous experiences with anaesthetic.
However, an anaesthetic is a complicated procedure and things can go wrong. These include failed intubation, negligence during monitoring and errors with dosages of the required drugs.
What do you do?
People might expect in their lives to claim for fire, theft or automotive accident, no-one even wants to consider the possibility that they might have to claim for death as a result of anaesthetic. There are, however, some issues you need to consider before beginning to think of the claim. On hearing of your loved one’s passing during the operation, get yourself a confident, well spoken and persistent friend who can deal with the medical professionals involved. It’s not yet time for lawyers, because, remember, the death might not be as a result of medical negligence. Appoint this friend to speak on your behalf and make enquiries about the cause of death. An autopsy is required by law, and, much as the thought is distressing, this must be done to ascertain the cause of death. The surgeon will complete what is called a D28 form, which is the official record of the patient’s stay in hospital which the pathologist requires in order to do the post-mortem.
There is also a ‘death on table’ form which the anaesthetist must fill in. Your friend needs to be willing to be persistent in asking questions. Make sure you have the names and designations of these professionals.
They are likely to be distressed by this outcome too, as no doctor likes to lose a patient.
Once the autopsy has been completed, and the reports compiled, you will be informed of the cause of death and a decision must be made as to whether this may have been a result of medical negligence or malpractice. Medical negligence is a very specific concept, and it refers to an error in omission or commission that would not have been made by a reasonable body of medical professionals, and that this error resulted in a loss of life. Although not impossible to prove, this is not easy.
If your loved one experienced unforeseen complications and the anaesthetist made a professional judgment that resulted in death, this is not necessarily negligence. It could be proved that the judgment was, in fact, reasonable, and death could not have been predicted. Also, if they can show that there was a pre-existing condition about which the anaesthetist could not reasonably have been aware, and which the patient did not divulge, it will not be regarded as medical negligence. Proof of medical negligence is the first thing that you need to make a claim against the medical practitioner.
Some legal companies offer a service in which they take your case to court and only charge you if you win the case against the medical practitioner. Usually, they will require you to agree either to a set payment or, more likely, a (large) percentage of the money that you are awarded in a settlement. In this arrangement, they are unlikely to take your case if they are not reasonably confident that you will win. If anyone approaches you at the hospital or in the days after your loved one’s death about pursuing a claim, require that they discuss this with your friend who is advocating for you and your interests.
You will be in no state to make decisions about entering into contracts with legal companies, and you should not be considering this while you are in the immediate shock and grief following a death.
Death as a result of anaesthesia could result in two types of claim. The first, which has been discussed here, is a claim against the medical practitioner on the grounds of medical negligence or malpractice. In this case, you need a medico-legal lawyer, and it is best to find a company that specializes in this type of law. You could approach these companies and present your situation, and ask them about taking up your case. It is worthwhile speaking to more than one company – you will want to find a company whose terms you are happy with. Either you will pay lawyers’ fees as with any other legal matter, and then whatever amount is awarded to you is yours. Or, the lawyers take a cut of the settlement only if they are successful.
Either way, you need to be prepared for a lengthy, expensive and traumatic process, especially when proving negligence or malpractice is part of the claim. Although it is not wise to institute proceedings in the early days of your grief, it is not advisable to wait too long. Ideally, you want the people who were present during the operation to be available to testify if necessary, and this becomes increasingly difficult as time goes by.
There may also be a cut off date after which your claim will not be considered – your lawyer will advise you of this.
The second type of claim you might make would be against a life insurance policy if the death by anaesthesia is accidental, in other words, no medical negligence or malpractice is involved. In this case, you will still need to engage with the medical professionals involved in the case, and, again, you are advised to appoint a friend who can assist you. The first thing you will need to do is to check that there are no specific exclusions to the life insurance policy that mean that death by anaesthesia will not be covered. The next thing you will need to do is to gather information that points to the death as an accident.
Here again, you or your friend will have to engage with the medical professionals involved in the incident, and it is important to maintain a professional relationship with them, as you will rely on their support in the resulting investigation. You must then contact your broker (the person or organization who sold the life insurance policy) and indicate that you wish to claim against the policy, giving the broker a summary of what you know about the case. The broker will then look at your policy and confirm whether your loved one did, in fact, have cover for such an event and that a claim can be lodged.
The broker will assist you in lodging the claim with the insurance company, and you can assist by providing as much information as you can.
The insurance company will launch its own investigation before paying out, as they will want to be sure that the death was accidental (and thus their responsibility to pay) and not as a result of malpractice or negligence (in which case the claim would be made against the medical practitioner or appropriate body). This investigation can be lengthy and traumatic but is necessary to protect the assets of the insurance company against wrongful claims.
If the death by anaesthesia is ruled accidental, and your loved one was covered for such an event, then you can expect a payout according to the payment schedule in the policy.
When You are compensated
Your payout from either an accidental death claim may be a pre-determined lump sum, or in the case of medical malpractice or negligence may be a calculated cover loss of future earnings. Whatever money you are awarded, you need to be aware of a few things. First, you may still owe the hospital and doctors money.
Just because a loved one dies as a result of the anaesthesia, it does not mean that the hospital waives its fees for the various procedures that preceded the operation, or for the hospital stay.
You may expect some leniency in terms of the time you are given to settle these bills, but it is vital to communicate with the hospital accounts department and agree on a payment plan. Second, make sure you know what fees you are expected to pay to lawyers or brokers – these can be more than you expect. Finally, get some good financial advice on how to invest the sum you are paid. Spending it on luxury items like a car or expensive holiday may feel like the right thing because of the trauma of your loss, but this is not wise in the long term.
The money should be invested in a way that it benefits you in the difficult years ahead.