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The country’s top patient-safety watchdog group has issued an alert about the dangers of waking up during surgery—a warning that many in the legal and health professions say could trigger more malpractice suits against anesthesiologists. Plaintiffs’ attorneys claim that in the past, people who awoke during operations rarely sued because they couldn’t prove it, and doctors ignored them. But now, they say, these patients have new ammunition: an alert recently released by the Joint Commission on Accreditation of Healthcare Organizations. It says that anesthesia awareness happens 20,000 to 40,000 times a year, and that this phenomenon is an “under-recognized and under-treated” problem in the health care industry. “Somebody has actually opened the door and said, ‘Hey, this does happen,’ ” said attorney William DeGarmo of San Jose, Calif.’s McCann & Logue, who is handling two anesthesia awareness suits. “If someone had said to me 10 years ago, even five years ago, that someone had woken up during surgery, I’d say, ‘I can’t imagine that.’ . . . But it’s only recently that publicity has come out about this that people are saying, ‘I’m not nuts. This did happen.’ “ The joint commission noted that while the 20,000 to 40,000 figure cited in the report represents only one to two cases in every 1,000, the experience is “traumatic for those people who do become aware,” and called on hospitals to do more to prevent it. “I think there’s a concern that this kind of an alert could prompt more lawsuits,” said Karen Posner, an anesthesiology professor at the University of Washington who tracks medical malpractice claims for the American Society of Anesthesiologists. Courts have seen roughly a dozen anesthesia-awareness lawsuits in the last year, including cases in California, Utah, Alabama, Texas and Oklahoma, according to lawyers and the Reston, Va.-based nonprofit group Anesthesia Awareness. But they expect to see more given the new report, the increased publicity surrounding the issue and the recent availability of a new monitoring device that measures brain waves and tells when a person is regaining consciousness. While many patients want the device used, many doctors believe it is unreliable. In defense of the anesthesia profession, Roger Litwiller, past president of the American Society of Anesthesiologists, issued a recent statement saying, “In some types of surgeries, awareness is the result not of error, but of the need to give the patient only as much anesthesia as his or her body can tolerate. In other cases, the sounds or sensations that patients become aware of are fleeting and not traumatic.” He added: “Awareness under general anesthesia is not common. The vast majority of surgeries performed under general anesthesia are accomplished with the patient unaware and pain-free.” Attorney Douglas Hornsby of Shuttleworth, Ruloff, Giordano & Swain in Newport News, Va., has settled a dozen anesthesia-awareness lawsuits, tried another two, and is currently reviewing six other cases. He said a key problem with these cases is that they’re difficult to prove. “It’s the patient’s word against the doctor’s,” said Hornsby. “And hospitals don’t admit a mistake was made, so defendants think they’re going crazy.” But sometimes the patient’s memory can prove just as helpful. One of Hornsby’s clients—a woman who claimed she was awake while having her ovaries removed—helped prove her case when she recalled hearing the doctor take a phone call from his wife and from his daughter during her operation. In that case, the plaintiff won $150,000. Smith v. Riverside Hospital, No. L97-24745RF (Newport News, Va., Cir. Ct.). “This is what I call invisible scars in the mind. The only injuries is what I call silent screams, the invisible tears,” Hornsby said.

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