Should there be legal liability for not having the right intensive care equipment?

by Michael Wong

The BBC recently reported that lack of intensive care equipment was “causing deaths” in UK intensive care wards. Citing the report by The Royal College of Anaesthetists and The Difficult Airway Society recently “Major complications of airway management in the United Kingdom”, the BBC states:

using a capnograph may avoid over 70% of breathing-related deaths on UK intensive care wards.

As a result of this Airway Management Report, Stephensons, which describes itself as one of the top 100 law firms in the UK, is now looking for people who may have been harmed by the lack of intensive care equipment. The law firm has posted this invitation on its website:

If you believe that you have received treatment which was below a reasonable standard and would like to make a claim, we have a dedicated team of clinical negligence solicitors who would be happy to help you.

Will US lawyers also soon be chasing “lack of monitoring” victims?

Although this Report is based on the analysis of UK hospital data, it has applicability to the US, according to Dr DK Whitaker, who is the Chairman of the European Board of Anaesthesiology Safety Committee, a member of the European Board of Anaesthesiology ⁄ European Society of Anaesthesiology Patient Safety Task Force, and the past president, Association of Anaesthetists of Great Britain and Ireland.

As Dr DK Whitaker says in his editorial “Time for Capnography – Everywhere”:

Data from the US National Registry of Cardiopulmonary Resuscitation (CPR) show that out of 86,748 in-hospital cardiac arrests, 40,050 (46%) occurred in ICUs. The ICU was not only the most common location for cardiac arrests: ICU patients also had some of the worst outcomes; i.e. only 15.5% survival to discharge. Having continuous capnography already in place and fully functioning for ICU patients receiving controlled ventilation may well help with the diagnosis, treatment, management and outcome of cardiac arrest, when it occurs. For all these reasons, the availability and routine use of FEco2 monitoring for every ICU bed space would seem essential. There are now many intensive care monitors that include capnography, and a number of ICU ventilators used in Europe have had built-in FE co2 monitoring for some time.

The Airway Management Report analyzed data collected from hospitals across the UK for one year for major airway management complications during anesthesia. Major complications analyzed were death, brain damage, emergency surgical airway, and unanticipated intensive care unit admission.

One of the major study findings showed that routine monitoring of breathing could reduce deaths in intensive care. How much? More than 20%, as reported by the BBC. Of 184 reports of complications, 38 resulted in a death. Sixteen of these deaths occurred while under general anesthetic in the operating theatre, 18 occurred on intensive care units and 4 in emergency departments.

Report author Dr Tim Cook, who is a consultant anesthetist at the Royal United Hospital in Bath, concluded:

The single most important change that would save lives is the use of a simple breathing monitor, which would have identified or prevented most of the events that were reported. We recommend that a capnograph is used for all patients receiving help with breathing on ICU. Greater use of this device will save lives.

Should there be legal liability for not having the right intensive care equipment? What do you think?

One thought on “Should there be legal liability for not having the right intensive care equipment?

  1. Here are some email responses that we’d like to share with our readers. Names have been removed (and typos, etc corrected for ease of reading), but the comments underscore the seriousness of this issue:

    “I think that there is a serious liability not having appropriate equipment available.”- doctor anesthesiology and critical care

    “Yes; there should be legal liability for not having the proper equipment in ICU.” – doctor pulmonary and critical care

    “The answer is absolutely. The availability of equipment is the health care-taker responsibility. ‘Check PPV Bag, mask size, laryngoscope etc before patient is in OR or ICU‘ If the facility is not equipped with an advanced life-supporting technology, transfer patient in-time to tertiary center.” – doctor pediatrics

    “Moral responsibility is foremost. The lack of equipment is mostly secondary to finances which is dictated by hospital administrators. The moral and legal liability lies with them primarily once a request for equipment has been submitted. However, the legal protections given to those who ultimately dictate care via finances or lack of same precludes successful legal redress. This leaves the physicians as the “deep pocket” and this solves nothing. A ‘reasonable’ amount and type of equipment must be decided upon by physicians providing airway management and be acquired by the hospital administration. This is where the moral responsibility lies. As an aside, ‘shared equipment’ is not the answer to this problem.” – doctor anesthesia, critical care and pain medicine

    “Alas, I have to say ‘it depends’. Certainly there are times when lack of the correct intensive care equipment is negligent and doesn’t meet the standard of care, in which case there is legal liability. For example, if a surgical patient undergoes a procedure where the vast majority of hospitals that care for a patient with that procedure have equipment to deal with a particular complication, and a hospital lacks that equipment and as a result the patient dies, there is a strong case for a breach of the standard of care and negligence. On the other hand if a rural hospital in a small town lacks “intensive care” equipment to care for an emergency room patient with severe trauma, and this is the case for similar rural hospitals, and a patient comes in with severe trauma and dies because that equipment wasn’t available, I would say that that doesn’t violate the standard of care.” – doctor inpatient pediatrics

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