Anesthesia malpractice cases concentrate significant risk in short time windows. A monitoring failure that goes undetected for minutes can cause permanent neurological injury or death. The liability picture in these cases typically involves multiple providers — an anesthesiologist, a certified registered nurse anesthetist, and the facility , with overlapping and sometimes disputed responsibilities. Sorting out who was responsible for what, and whether each person met their specific obligations, is the first analytical step in any serious anesthesia case.
CRNA Supervision Requirements
CRNAs administer anesthesia in a significant percentage of surgical procedures, often without direct physician supervision. Whether supervision is required depends on three overlapping frameworks: state law, the facility's credentialing requirements, and CMS conditions of participation for hospitals and ambulatory surgery centers.
CMS issued a rule in 2001 allowing states to opt out of the federal anesthesia supervision requirement for Medicare and Medicaid certified facilities, subject to a governor's certification that the opt-out is appropriate for the state. Approximately 20 states have opted out, and in those states CRNAs may administer anesthesia in CMS-certified facilities without physician supervision as a CMS requirement. The state nurse practice act and facility credentialing requirements then govern what supervision, if any, is needed.
In a case involving a CRNA, confirm: Was the procedure performed in an opt-out state? If not, what supervision was required under CMS conditions, and who provided it? What did the facility's credentialing policies require for CRNA practice in the department where the procedure took place? What did the CRNA's privileges authorize, and did the case type fall within those privileges? Gaps between what the regulation required and what was actually provided establish the framework for the supervision failure claim.
APSF and ASA Monitoring Standards
The Anesthesia Patient Safety Foundation and the American Society of Anesthesiologists have jointly published standards for basic anesthetic monitoring. These standards, last revised in 2020, require continuous presence of qualified anesthesia personnel, continuous monitoring of oxygenation by pulse oximetry, continuous capnography during general anesthesia to verify ventilation, and continuous assessment of circulation through heart rate and blood pressure monitoring at least every five minutes.
These standards define the standard of care for anesthesia monitoring. A case where capnography was unavailable or not used, where pulse oximetry alarms were silenced or disabled, or where blood pressure was checked infrequently and the documentation reflects extended gaps, describes a breach of these minimum monitoring standards. The expert need not speculate about what should have been done , the published standards say what must be done, and the anesthesia record says what was done.
The anesthesia record is the key document. It should show continuous vital sign measurements at defined intervals, the specific monitors that were applied and when, alarm settings, and the anesthesia team's notation of events. A record that shows long gaps in vital sign documentation, missing capnography tracings, or significant deviations from normal values that were not noted or acted upon is itself evidence of a monitoring failure.
Building the Liability Record with Multiple Providers
Anesthesia cases almost always involve more than one provider. The anesthesiologist of record who may have been physically absent from the room, the CRNA who was present and managing the anesthetic, the circulating nurse who observed the patient, and the surgeon who may have observed or contributed to a deteriorating situation each played roles that need to be assessed separately.
The expert should assess the standard of care for each provider individually. The anesthesiologist may have breached the supervision duty by being absent or inattentive. The CRNA may have breached the monitoring duty by failing to respond to alarm conditions. The facility may have contributed by providing inadequate equipment, understaffing the department, or failing to enforce supervision policies. These are parallel theories, and assigning responsibility to each defendant requires separate analysis of each provider's specific duties and specific conduct.
Obtain the credentialing files for each provider, the facility's anesthesia policies and procedures, any quality assurance records concerning the event, and peer review records to the extent they are available under the applicable protective statute. These records often contain internal conclusions about what went wrong that the facility would prefer the plaintiff never see. For resources on building the malpractice record generally, see our medical malpractice coverage. The specific causation challenge in anesthesia injury cases, connecting the monitoring failure to the neurological outcome, is discussed in our case law and settlements section.
Qualifying the Expert for Each Provider's Standard
The expert qualification issue in multi-provider anesthesia cases is more complex than in a single-provider malpractice case. An anesthesiologist is the appropriate expert on the physician standard of care. A CRNA expert is appropriate on the nursing standard of care for a CRNA's specific functions. Where the standard of care differs between the two disciplines, the Daubert analysis on expert qualifications becomes critical. Some defendants will move to exclude a physician expert opining on CRNA conduct, arguing the standard differs between the professions. Retain the right expert for each provider's role, and be prepared to demonstrate that the expert's training and experience give her specific knowledge of the standard applicable to the defendant whose conduct she is addressing, whether physician or CRNA.