Medical-Legal Issues of Emergency Airway Management

The failure to manage a patient's airway can lead to lack of oxygenation and ventilation, and to resulting brain injury or death. Such failures can easily culminate in large awards.

Health-care providers are aware that they must be mindful of exposing patients to the risk of harm associated with invasive procedures, including intubation, and only perform them when it is indicated. But if airway control is not established early in the patient's course of care, sometimes the window of opportunity to establish control may pass quickly and result in significant harm. Thus, basic to airway management is the decision whether to gain control of an airway by intubating (inserting into the trachea) with an endotracheal (ET) tube, or whether to manage the airway expectantly ' by “watchful waiting” ' according to the patient's signs and symptoms.

Because of the large awards that often are at stake in these cases, it is important to use a structured approach to analyzing the medical-legal issues arising in a claim of negligent airway management.

Methods of Intubation

Choosing a method for the first attempt to intubate the patient requires considering various factors, including the limitations of the methods themselves and the nature of the patient's condition. Intubation by standard laryngoscopy ' that is, oral intubation not facilitated by using sedatives or other medications ' is limited to patients who are profoundly unresponsive, as indicated by muscles that are completely flaccid, or patients who are in cardiac arrest. Generally, if a patient's condition is so grave as to allow for oral intubation by standard laryngoscopy, then there is little or no reason not to attempt this procedure. In cases such as these, medical decision-making is simple.

Rapid sequence intubation (RSI), in contrast to intubation by standard laryngoscopy, has significant value in patients who are not completely unconscious; that is, in patients who are awake and alert, are agitated, combative or have jaws that are clenched. RSI, which, by definition, is intubation facilitated by neuromuscular blocking (NMB) agents, causes paralysis of the patient's muscles. Paralysis improves visualization of airway structures during laryngoscopy. But because the muscles that are paralyzed include those responsible for spontaneous breathing, patients given NMBs are made entirely dependent upon health-care providers to ensure adequate oxygenation (the supply of oxygen in the blood) and ventilation (the movement of air in and out of the lungs). Colloquially speaking, the health-care provider who chooses to use NMBs assumes “ownership” of the patient's airway, and as such has the patient's life in his or her hands. Consequently, the extent of the benefit of improved visualization must outweigh the risk of being unable to either complete the intubation procedure or use alternative airway devices or techniques.

Fiberoptic nasotracheal intubation (FNTI) avoids completely the oral route and, although important in elective surgical procedures, plays a much lesser role in airway management of the emergency patient. This is both because of the general lack of availability of fiberoptic equipment in EDs, and the lack of training of emergency department (ED) physicians in this method.

Blind nasotracheal intubation (BNTI), which does not require the fiberoptic device, has a high failure rate in the hands of even those most skilled in its use. A general lack of proficiency in this method has been compounded because its use by health care providers has decreased in proportion to the increased use of RSI.

A surgical airway ' cricothyrotomy and tracheostomy ' avoids the oral and nasal routes altogether, but is rarely used as an emergency measure, whether in the operating room or the emergency department. When performed, it is usually on the patient whose ventilatory and cardiovascular status is markedly compromised.

By looking at some recent cases involving intubation gone wrong, we can see some of the issues involved in analyzing a claim of negligent airway management.

Choosing the Right Method

In one case that was settled before a suit was filed, the patient, a 52-year-old male, developed tracheal swelling after taking pain medication that had been prescribed following minor goiter surgery. He drove to the emergency department (ED) of the same hospital from which he had been discharged 36 hours earlier. There, he was examined by a board-certified emergency physician. She determined that he needed to be intubated to protect his airway because it was becoming obstructed. She called the hospital's anesthesia services to perform the intubation, and notified surgical services that one of its patients had returned with complications. Within minutes, anesthesia and the on-duty surgery resident responded to the emergency department.

The dictated medical records indicate that the ED physician and the surgery resident “fought” over whether to intubate the patient. Ultimately, the resident ordered the anesthesia services provider to leave, and the patient received a respiratory (inhalation) treatment (Albuterol). Forty minutes later, while still in the ED, the patient experienced complete obstruction of the airway and suffered cardiac arrest. A tracheotomy was performed, but not in time to prevent severe brain damage. Married and a father of two, the patient survived for eight months in a comatose state before dying from his injuries.

This case highlights, among many obvious risk management errors, how the extent of airway compromise may entail a dynamic process. An airway that is rapidly increasing in the extent of compromise is also one that is becoming increasingly “difficult.” Management involves medical decision-making that not only must be appropriate, but must proceed under time constraints. Given that, in less than one hour after walking into the emergency department on his own, the patient was comatose with severe brain damage; and, given that the conflict between the ED physician and the resident was memorialized in the medical record, it is no surprise that this case was settled pre-suit for $1.667 million. “Patient Has Allergic Reaction to Painkiller.” Michigan Medical Law Report Vol. 4 No. 1 Spring 2008 Dolan Media Company Farmington Hills, MI; page 15.

Timely Use of Alternative Means

Managing a patient's airway involves preparing for the possibility of being unable to complete the intubation procedure in a timely manner. It is critical for health-care providers who use RSI to keep this possibility in mind, because the neuromuscular blocking agents (NMBs) cause the patient to stop breathing. To avoid ongoing hypoxia (lack of oxygen) and hypercapnea (increase in carbon dioxide) associated with a failure to intubate orally, managing the airway must include preparing to use alternative measures. The value of “rescue” measures is in providing timely and adequate oxygenation and ventilatory support. Some measures may be temporizing ' that is, used as a “bridge” to endotracheal intubation itself.

The most basic of measures (but one that is sometimes difficult to perform adequately) is bag-valve-mask (BVM) ventilation. Other measures are somewhat more invasive, such as use of the laryngeal mask airway (LMA) device. Still others are quite invasive, notably, the surgical airway. In any case, management techniques must be implemented in a timely fashion, according to the healthcare provider's success in both ventilating the patient and ensuring that the patient is oxygenated.

Damage from hypoxia to the brain is measured in minutes. Therefore, health-care providers may need to prepare to use rescue airway methods before beginning the intubation procedure. This is especially so when a provider assumes ownership of the airway by using RSI. When failure using preferred less invasive means is foreseeable, providers should prepare beforehand to take the invasive, but definitive, step of directly accessing the trachea using a surgical approach. Making preparations for using a surgical approach to managing the difficult airway by assembling the surgical equipment before beginning non-surgical attempts of airway management, but in anticipation of their failure, is referred to as a “double set-up.”

In another case, Jackson County Hospital v. Aldrich, 835 So. 2d 318 (Fla. App. 2002), the plaintiff was severely burned when he used a cutting torch on a barrel containing flammable liquid. Following an explosion, he was engulfed in flames for 30 seconds, and suffered extensive and deep burns, including to his face and neck. While en route to the hospital by ambulance, he maintained spontaneous breathing, and received high-flow oxygen. In the ED, he was found to have an increased respiratory rate and had decreased levels of oxygen (oxygen saturation, measured in percentages) in his blood. These conditions were evidence of a decrease in oxygenation sufficient to require endotracheal intubation. The ED physician called a certified registered nurse anesthetist (CRNA) to accomplish this task.

The CRNA apparently performed an “awake” laryngoscopy. This procedure is performed not with the intent to intubate, but to better predict the degree of visualization that will be obtained after administering the neuromuscular blocking (NMB) agent. Given her lack of adequate visualization of airway structures, she was not comfortable performing the RSI procedure. Because the patient was awake and breathing, she recommended blind nasotracheal intubation (BNTI). However, despite her reservations, she performed RSI instead on the recommendation of the ED physician. As she had feared, visualization by laryngoscopy remained poor, despite administration of the NMB agents. This was because of the burns, swelling, and the patient's short mandible. The CRNA inserted the ET tube, but was not certain of a tracheal placement. The tube was left in place despite this uncertainty. A carbon dioxide device was attached to the ET tube, but it did not detect the production of carbon dioxide; neither was there an increase in the plaintiff's oxygen level in the blood. These indicators of lack of adequate ventilation suggested esophageal tube placement. Concerns about proper placement were alleviated by the ED physician's reported auscultation of breath sounds over the lung fields and the absence of sounds over the stomach. The plaintiff then received a narcotic pain medication, which was followed within minutes by the loss of his pulse. Resuscitation efforts were unsuccessful. At autopsy, the medical examiner found the ET tube in the esophagus.

The plaintiff's emergency medicine expert testified that the ED physician's failure to detect an esophageal intubation when listening for breath sounds amounted to an honest error in judgment, but that failure to check for placement using laryngoscopy and failure to notice that the patient's oxygen saturation levels were not rising was evidence of reckless disregard. The jury apparently agreed, finding reckless disregard on the part of the ED physician. The contracting anesthesia group was liable for the CRNA's negligence. On appeal, the court found that Jackson County Hospital, and the ED physician as its agent, were immune under Florida's Good Samaritan Act.

This case highlights the level of sophistication required in choosing between various methods of airway management. Although RSI offers important advantages over other forms of airway management ' primarily in its improving laryngoscopy ' its use does not guarantee success. Consequently, despite the widespread use of RSI, other methods of intubation must remain available to health care providers in the management of emergency patients.

The case is problematic in that only the hospital and ED physician were deemed immune under the Good Samaritan Act. As pointed out in the dissenting opinion, it seems “illogical to infer the legislature intended application of a different standard to medical professionals working as part of the same team, affording greater protection to the person in charge than to those carrying out the orders ' “

This case also highlights an important principle: Regardless of the method that is chosen, proper placement of the ET tube in the trachea is absolutely essential and must be confirmed in a timely manner. Timeliness, to some extent, is relative to whether the patient is allowed to maintain spontaneous breathing. RSI places the burden on healthcare providers for immediate oxygenation and ventilation, either through an appropriately placed tube or through use of rescue airway methods and devices. Rescue devices include the laryngeal mask airway (LMA'), and double lumen devices such as the Combitube.

Medical-Legal Issues

Claims of negligent management of a difficult airway are heavily litigated because injuries to the patient that result from failing to properly manage a patient's airway are severe, and may include brain damage and death. To determine if airway management met the standards of care, consider two perspectives: that of the provider; and, that of the patient.

A provider faced with managing an airway ' especially when the airway is anticipated to be, or becomes, “difficult” ' requires many things, especially decision making that is both sophisticated and timely. In addition, the provider must possess technical proficiency in performing the procedures safely and effectively. Establishing the standard of care for managing an airway requires focusing on provider skills, including those that are cognitive (for decision-making), psychomotor (for performing procedures), and affective (for working as a team-member or team-leader).

From the perspective of the patient, to determine the standard of care, consider four issues. First, whether the possibility of active management of the airway was considered in a timely fashion. If yes, and if active management was deferred, determine whether “watchful waiting” was reasonable. Second, ask whether the choice of the initial intubation method ' that is, the method chosen for the first attempt at intubation ' was reasonable.

Third, question whether, given the failure of the first choice of airway methods, adequate provisions had been made for timely and effective use of alternative airway measures to “rescue” the airway, and so to ensure adequate oxygenation and ventilation of the patient.

Finally, if a surgical method was used as a method of rescue, establish whether airway management was reasonable by asking: 1) If, in the course of airway management, the decision to proceed to a surgical airway was timely; 2) If the time that elapsed between making that decision and actually beginning the procedure was reasonable; and 3) If the time required either to perform the procedure and so ventilate the patient directly through the trachea, or alternatively, to control the airway by other methods, was reasonable.

Mark J. Greenwood, DO, JD, FAAEM, FCLM, is a Flight Physician at Aero Med Spectrum Health in Grand Rapids, MI. He completed a Fellowship in Emergency Medical Services at the University of Chicago. E-mail: [email protected].

The failure to manage a patient's airway can lead to lack of oxygenation and ventilation, and to resulting brain injury or death. Such failures can easily culminate in large awards.

Health-care providers are aware that they must be mindful of exposing patients to the risk of harm associated with invasive procedures, including intubation, and only perform them when it is indicated. But if airway control is not established early in the patient's course of care, sometimes the window of opportunity to establish control may pass quickly and result in significant harm. Thus, basic to airway management is the decision whether to gain control of an airway by intubating (inserting into the trachea) with an endotracheal (ET) tube, or whether to manage the airway expectantly ' by “watchful waiting” ' according to the patient's signs and symptoms.

Because of the large awards that often are at stake in these cases, it is important to use a structured approach to analyzing the medical-legal issues arising in a claim of negligent airway management.

Methods of Intubation

Choosing a method for the first attempt to intubate the patient requires considering various factors, including the limitations of the methods themselves and the nature of the patient's condition. Intubation by standard laryngoscopy ' that is, oral intubation not facilitated by using sedatives or other medications ' is limited to patients who are profoundly unresponsive, as indicated by muscles that are completely flaccid, or patients who are in cardiac arrest. Generally, if a patient's condition is so grave as to allow for oral intubation by standard laryngoscopy, then there is little or no reason not to attempt this procedure. In cases such as these, medical decision-making is simple.

Rapid sequence intubation (RSI), in contrast to intubation by standard laryngoscopy, has significant value in patients who are not completely unconscious; that is, in patients who are awake and alert, are agitated, combative or have jaws that are clenched. RSI, which, by definition, is intubation facilitated by neuromuscular blocking (NMB) agents, causes paralysis of the patient's muscles. Paralysis improves visualization of airway structures during laryngoscopy. But because the muscles that are paralyzed include those responsible for spontaneous breathing, patients given NMBs are made entirely dependent upon health-care providers to ensure adequate oxygenation (the supply of oxygen in the blood) and ventilation (the movement of air in and out of the lungs). Colloquially speaking, the health-care provider who chooses to use NMBs assumes “ownership” of the patient's airway, and as such has the patient's life in his or her hands. Consequently, the extent of the benefit of improved visualization must outweigh the risk of being unable to either complete the intubation procedure or use alternative airway devices or techniques.

Fiberoptic nasotracheal intubation (FNTI) avoids completely the oral route and, although important in elective surgical procedures, plays a much lesser role in airway management of the emergency patient. This is both because of the general lack of availability of fiberoptic equipment in EDs, and the lack of training of emergency department (ED) physicians in this method.

Blind nasotracheal intubation (BNTI), which does not require the fiberoptic device, has a high failure rate in the hands of even those most skilled in its use. A general lack of proficiency in this method has been compounded because its use by health care providers has decreased in proportion to the increased use of RSI.

A surgical airway ' cricothyrotomy and tracheostomy ' avoids the oral and nasal routes altogether, but is rarely used as an emergency measure, whether in the operating room or the emergency department. When performed, it is usually on the patient whose ventilatory and cardiovascular status is markedly compromised.

By looking at some recent cases involving intubation gone wrong, we can see some of the issues involved in analyzing a claim of negligent airway management.

Choosing the Right Method

In one case that was settled before a suit was filed, the patient, a 52-year-old male, developed tracheal swelling after taking pain medication that had been prescribed following minor goiter surgery. He drove to the emergency department (ED) of the same hospital from which he had been discharged 36 hours earlier. There, he was examined by a board-certified emergency physician. She determined that he needed to be intubated to protect his airway because it was becoming obstructed. She called the hospital's anesthesia services to perform the intubation, and notified surgical services that one of its patients had returned with complications. Within minutes, anesthesia and the on-duty surgery resident responded to the emergency department.

The dictated medical records indicate that the ED physician and the surgery resident “fought” over whether to intubate the patient. Ultimately, the resident ordered the anesthesia services provider to leave, and the patient received a respiratory (inhalation) treatment (Albuterol). Forty minutes later, while still in the ED, the patient experienced complete obstruction of the airway and suffered cardiac arrest. A tracheotomy was performed, but not in time to prevent severe brain damage. Married and a father of two, the patient survived for eight months in a comatose state before dying from his injuries.

This case highlights, among many obvious risk management errors, how the extent of airway compromise may entail a dynamic process. An airway that is rapidly increasing in the extent of compromise is also one that is becoming increasingly “difficult.” Management involves medical decision-making that not only must be appropriate, but must proceed under time constraints. Given that, in less than one hour after walking into the emergency department on his own, the patient was comatose with severe brain damage; and, given that the conflict between the ED physician and the resident was memorialized in the medical record, it is no surprise that this case was settled pre-suit for $1.667 million. “Patient Has Allergic Reaction to Painkiller.” Michigan Medical Law Report Vol. 4 No. 1 Spring 2008 Dolan Media Company Farmington Hills, MI; page 15.

Timely Use of Alternative Means

Managing a patient's airway involves preparing for the possibility of being unable to complete the intubation procedure in a timely manner. It is critical for health-care providers who use RSI to keep this possibility in mind, because the neuromuscular blocking agents (NMBs) cause the patient to stop breathing. To avoid ongoing hypoxia (lack of oxygen) and hypercapnea (increase in carbon dioxide) associated with a failure to intubate orally, managing the airway must include preparing to use alternative measures. The value of “rescue” measures is in providing timely and adequate oxygenation and ventilatory support. Some measures may be temporizing ' that is, used as a “bridge” to endotracheal intubation itself.

The most basic of measures (but one that is sometimes difficult to perform adequately) is bag-valve-mask (BVM) ventilation. Other measures are somewhat more invasive, such as use of the laryngeal mask airway (LMA) device. Still others are quite invasive, notably, the surgical airway. In any case, management techniques must be implemented in a timely fashion, according to the healthcare provider's success in both ventilating the patient and ensuring that the patient is oxygenated.

Damage from hypoxia to the brain is measured in minutes. Therefore, health-care providers may need to prepare to use rescue airway methods before beginning the intubation procedure. This is especially so when a provider assumes ownership of the airway by using RSI. When failure using preferred less invasive means is foreseeable, providers should prepare beforehand to take the invasive, but definitive, step of directly accessing the trachea using a surgical approach. Making preparations for using a surgical approach to managing the difficult airway by assembling the surgical equipment before beginning non-surgical attempts of airway management, but in anticipation of their failure, is referred to as a “double set-up.”

In another case, Jackson County Hospital v. Aldrich , 835 So. 2d 318 (Fla. App. 2002), the plaintiff was severely burned when he used a cutting torch on a barrel containing flammable liquid. Following an explosion, he was engulfed in flames for 30 seconds, and suffered extensive and deep burns, including to his face and neck. While en route to the hospital by ambulance, he maintained spontaneous breathing, and received high-flow oxygen. In the ED, he was found to have an increased respiratory rate and had decreased levels of oxygen (oxygen saturation, measured in percentages) in his blood. These conditions were evidence of a decrease in oxygenation sufficient to require endotracheal intubation. The ED physician called a certified registered nurse anesthetist (CRNA) to accomplish this task.

The CRNA apparently performed an “awake” laryngoscopy. This procedure is performed not with the intent to intubate, but to better predict the degree of visualization that will be obtained after administering the neuromuscular blocking (NMB) agent. Given her lack of adequate visualization of airway structures, she was not comfortable performing the RSI procedure. Because the patient was awake and breathing, she recommended blind nasotracheal intubation (BNTI). However, despite her reservations, she performed RSI instead on the recommendation of the ED physician. As she had feared, visualization by laryngoscopy remained poor, despite administration of the NMB agents. This was because of the burns, swelling, and the patient's short mandible. The CRNA inserted the ET tube, but was not certain of a tracheal placement. The tube was left in place despite this uncertainty. A carbon dioxide device was attached to the ET tube, but it did not detect the production of carbon dioxide; neither was there an increase in the plaintiff's oxygen level in the blood. These indicators of lack of adequate ventilation suggested esophageal tube placement. Concerns about proper placement were alleviated by the ED physician's reported auscultation of breath sounds over the lung fields and the absence of sounds over the stomach. The plaintiff then received a narcotic pain medication, which was followed within minutes by the loss of his pulse. Resuscitation efforts were unsuccessful. At autopsy, the medical examiner found the ET tube in the esophagus.

The plaintiff's emergency medicine expert testified that the ED physician's failure to detect an esophageal intubation when listening for breath sounds amounted to an honest error in judgment, but that failure to check for placement using laryngoscopy and failure to notice that the patient's oxygen saturation levels were not rising was evidence of reckless disregard. The jury apparently agreed, finding reckless disregard on the part of the ED physician. The contracting anesthesia group was liable for the CRNA's negligence. On appeal, the court found that Jackson County Hospital, and the ED physician as its agent, were immune under Florida's Good Samaritan Act.

This case highlights the level of sophistication required in choosing between various methods of airway management. Although RSI offers important advantages over other forms of airway management ' primarily in its improving laryngoscopy ' its use does not guarantee success. Consequently, despite the widespread use of RSI, other methods of intubation must remain available to health care providers in the management of emergency patients.

The case is problematic in that only the hospital and ED physician were deemed immune under the Good Samaritan Act. As pointed out in the dissenting opinion, it seems “illogical to infer the legislature intended application of a different standard to medical professionals working as part of the same team, affording greater protection to the person in charge than to those carrying out the orders ' “

This case also highlights an important principle: Regardless of the method that is chosen, proper placement of the ET tube in the trachea is absolutely essential and must be confirmed in a timely manner. Timeliness, to some extent, is relative to whether the patient is allowed to maintain spontaneous breathing. RSI places the burden on healthcare providers for immediate oxygenation and ventilation, either through an appropriately placed tube or through use of rescue airway methods and devices. Rescue devices include the laryngeal mask airway (LMA'), and double lumen devices such as the Combitube.

Medical-Legal Issues

Claims of negligent management of a difficult airway are heavily litigated because injuries to the patient that result from failing to properly manage a patient's airway are severe, and may include brain damage and death. To determine if airway management met the standards of care, consider two perspectives: that of the provider; and, that of the patient.

A provider faced with managing an airway ' especially when the airway is anticipated to be, or becomes, “difficult” ' requires many things, especially decision making that is both sophisticated and timely. In addition, the provider must possess technical proficiency in performing the procedures safely and effectively. Establishing the standard of care for managing an airway requires focusing on provider skills, including those that are cognitive (for decision-making), psychomotor (for performing procedures), and affective (for working as a team-member or team-leader).

From the perspective of the patient, to determine the standard of care, consider four issues. First, whether the possibility of active management of the airway was considered in a timely fashion. If yes, and if active management was deferred, determine whether “watchful waiting” was reasonable. Second, ask whether the choice of the initial intubation method ' that is, the method chosen for the first attempt at intubation ' was reasonable.

Third, question whether, given the failure of the first choice of airway methods, adequate provisions had been made for timely and effective use of alternative airway measures to “rescue” the airway, and so to ensure adequate oxygenation and ventilation of the patient.

Finally, if a surgical method was used as a method of rescue, establish whether airway management was reasonable by asking: 1) If, in the course of airway management, the decision to proceed to a surgical airway was timely; 2) If the time that elapsed between making that decision and actually beginning the procedure was reasonable; and 3) If the time required either to perform the procedure and so ventilate the patient directly through the trachea, or alternatively, to control the airway by other methods, was reasonable.

Mark J. Greenwood, DO, JD, FAAEM, FCLM, is a Flight Physician at Aero Med Spectrum Health in Grand Rapids, MI. He completed a Fellowship in Emergency Medical Services at the University of Chicago. E-mail: [email protected].