Malpractice issues in neurological surgery

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1 Surgical Neurology 65 (2006) Editorial Malpractice issues in neurological surgery Abstract Keywords: Background: Malpractice litigation continues to be a serious problem in neurosurgery despite many suggestions to contain liability, including proposed federal legislation. Methods: A current study of 275 malpractice claims has been compared with a prior study of 300 cases of liability and potential liability reported in Twenty years later, the results are surprisingly similar. Spinal surgery continues to dominate neurosurgical malpractice claims with 42% of the total, most from lumbar spine operations. As in the previous study, trauma and intracranial surgery account for the next largest groups. Of particular significance in terms of improved diagnostic methodology were spinal operations at the wrong level as well as failure to diagnose sentinel bleeds, aneurysms, arteriovenous malformation, and other cerebral lesions. Results: Although many cases believed defensible were settled often because of significant neurological deficit, a number were dropped or dismissed after review, reports, or depositions, and defense verdicts were achieved in a similar number that went to trial. Conclusions: Most plaintiff claims that had merit were settled. Although hope continues for tort reform, uniform capitation of noneconomic awards, and contingency fees, it should be noted that 119 claims, more than 40%, were considered either not defensible by defendants or had merit for the plaintiff. D 2006 Elsevier Inc. All rights reserved. Liability factors; Standard of care; Defensibility or merit; Results of litigation or settlement 1. Introduction In a prior paper, a retrospective series of 300 cases of alleged or potential liability was reported [4] to outline areas of vulnerability for the neurosurgeon and to alert younger practitioners in particular. Spinal surgery was responsible for the largest single group of neurosurgical malpractice cases, whereas craniocerebral and spinal trauma, intracranial surgery, and its subgroups were not as large in number, yet their study provided features of equal importance. Conclusions from that study reported in 1985 were that 37% of cases reviewed were found to have some merit in favor of the claimant, that plaintiffs and their attorneys could be dissuaded from legal pursuit if their claim had no merit or if there was no serious deficit, and that many defensible cases were settled or lost on the basis of disability rather than merit. The overwhelming concern of the neurosurgical community, at times expressed in unequivocal terms by its societies leaders, is for some containment of the legal profession. Tort reform now appears a probability with capitation of noneconomic awards, as is already the case in some states, and of contingency fees. The present study, 20 years later, comprises 275 cases, and as a comparative evaluation, the results remain strikingly similar, despite regular panel discussions on malpractice at specialty society meetings, often repeated references to medical errors, and requirements for continued medical education. Most specialty boards now require recertification, and neurosurgery has entered this area as well. What, if any, influence these measures provide remains to be seen. Hospital boards and State Boards of Registration are taking a more active role in the restriction of incompetent physicians. The Federal Data Bank is said to compile such information reported to it from all states. There has been a movement toward transparency, suggesting a frank discussion between physician and patient in the face of medical error, all of this indicative that the medical profession in general has taken measures that are hoped to be preventive of liability. Whether the legal profession can attempt similar containment of its members in the well-known litigious atmosphere and restraints from frivolous lawsuits remains a question. It has in fact been more outspokenly critical of insurers for the increasing escalation of malpractice premiums, despite the fact that several have declared bankruptcy, and several others no longer insure against medical malpractice /$ see front matter D 2006 Elsevier Inc. All rights reserved. doi: /j.surneu

2 Editorial / Surgical Neurology 65 (2006) The present study includes claims reviewed from many states, but there has been a uniformity in general of materials provided for review, including plaintiffs claims, interrogatories, and deposition transcripts, as well as medical records, x-rays, and imaging films (radiology reports without films have not been acceptable for review). The attorneys have then been advised regarding defensibility or merit. Although most of the claims have been brought against neurosurgeons, a small number have been directed at or included internists, emergency department physicians, or anesthesiologists or hospitals, but most have involved a basic underlying neurosurgical disorder. The extensive files have included results of litigation, but in a small number, such results are unknown, or there has as yet been no decision Origin of issue Spinal surgery continues to dominate the number of claims (Table 1), 118 or 42% of the total, most arising from lumbar spine operations. This is reflective mainly of the fact that lumbar surgery constitutes the major part of most neurosurgeons practice. Trauma and intracranial surgery have accounted for the next largest groups as in the prior study. Of significance, however, in terms of improved diagnostic measures has been the number of claims still resulting from failed diagnosis. The most relevant among these has been the failure to recognize sentinel bleeds caused by aneurysms or arteriovenous malformations, not only among primary care and emergency department physicians, but also neurologists and neurosurgeons as well. Most have gone on to disabling or fatal secondary hemorrhages including those who had later surgery. The failure to diagnose cerebral and spinal lesions tumors, abscesses, and vascular problems has been surprising in an age of improved diagnostic studies. It should be noted that, among the trauma and failed diagnostic groups, some of the patients had surgery, but most had significant cerebral or spinal deficits and were therefore vulnerable to claims, many of which had no merit. One patient developed a seriously Table 1 Origin of issue, 275 claims Spinal surgery Lumbar 73 Cervical 30 Thoracic 15 Intracranial surgery 18 Trauma a Craniocerebral 27 Spinal 21 Failed diagnosis a Sentinel bleed 10 Cerebral lesion 10 Spinal lesion 7 Aneurysm/AVM 14 Lung cancer 1 Infected hip wound 1 AVM indicates arteriovenous malformation. a Surgical + Non Surgical. Table 2 Origin of issue, 275 claims Chymopapain injections 9 Cerebral abscess/cerebritis 5 Anesthesia 7 Epidural steroid injection 7 Disk space penetration 3 Ethmoid penetration 2 Chiropractic manipulation 3 Percutaneous discectomy 3 Discography 2 Miscellaneous Avulsion anterior superior iliac spine 1 Injection injury sciatic nerve 1 Spinal accessory nerve injury 1 Femoral nerve injury 1 Lateral femoral cutaneous nerve injury 1 Vestibular syndrome S/P antibiotic Rx 1 Deep vein thrombosis S/P disk surgery 1 S/P, status post. infected hip wound after bone excision for cervical grafting that remained untreated, despite spousal phone calls to residents and surgeon, leading to the patient s death. It was determined that a patient with lung cancer had the lesion at the time of a routine preoperative chest x-ray reported before spinal surgery previously but disregarded by the surgeon. Among others (Table 2) were claims of inadequate treatment of brain abscess or cerebritis, anesthesia problems related to intubation initially or at the conclusion of surgery, central line disorders, hypotension, and undetected air emboli. Epidural steroid injections resulted in 2 cases of epidural hematoma with significant neurological deficit (one lumbar and one cervical), 3 cases of spinal cord penetration, (one with permanent paralysis of the right hand and two with Brown-Séquard syndrome), and 2 cases of abscess (one resulting in meningitis and death, the other epidural with residual deficit). Ethmoid penetration caused frontal lobe hematomas, bilateral in one case during a planned transsphenoidal operation resulting in profound deficit. Disk space penetration with vascular injury occurred in 3 cases and led to death in a patient, resulting from failure to recognize a large arteriovenous fistula. The 3 cases of chiropractic manipulation were all those of vertebral artery dissection, two of these with serious neurological deficits. Discography resulted in disk space infection and serious osteomyelitis in both cases. A number of these were similar to those in the 1985 study. There were, however, 9 claims as a result of chymopapain injections, popularized during and after the last study. A number of these resulted in serious neurological deficits, whereas others resulted in increased pain and disability. Percutaneous discectomy, also a more recent procedure, accounted for 3 claims. 2. Defensibility or merit As with the prior study [4], the statement still holds that bdefensibility rested largely with evidence that the defen-

3 418 Editorial / Surgical Neurology 65 (2006) Table 3 Defensibility, merit 275 claims Reviewed for defense 208 Defensible 136 Not defensible 72 Reviewed for plaintiff 67 Merit 47 No Merit 20 Defensible + no merit 156 Not defensible + merit 119 dant maintained the degree of judgement, skill, and care expected of the average neurosurgeon or other physician. Thus, not every surgical accident implies negligence, nor is failure to anticipate an exceptional, rare, or totally unexpected side effect of surgical or medical treatment evidence of negligence.q Under the present adversary system, maintaining objectivity in support of one s colleagues has at times been a problem. The tendency is naturally to favor the defense in borderline or questionable cases. Thus, a few cases have been lost at trial by a defendant surgeon when a settlement might have been more advisable. On the other hand, the determination of possible negligence, merit for the plaintiff, or nondefense was made only if the legal requirement that there was a departure from acceptable medical standards could be fulfilled with reasonable medical probability. Of equal importance was a determination whether the breach of standard practice was a substantial factor causing the patient s injury, but for the surgeon s actions or omission, would the patient s injury not have occurred? With these principles in mind, 136 of 208 claims reviewed for defendants were considered defensible (Table 3), and 20 of 67 reviewed for plaintiffs were found to have no merit. Among those reviewed for the defense believed not defensible (Table 4), 66 were settled, but an even larger number, 72 that were thought defensible, were also settled. This anomaly occurs for 3 reasons: first, financial settlements significantly lower than demands, largely as a result of pretrial preparation, reports, and deposition testimony; second, significant neurological deficit that may contradict expert testimony in the courtroom; third, neurosurgeons preferring to avoid the exposure of trial. Insurers thus predicted less expenditure then a full trial without the trial jeopardy of an unfavorable jury verdict. (This of course represents significant unfairness in the present system, because defensible cases should be defended.) At trial, Table 4 Reviewed for defense, 208 claims Defensible Not defensible Dropped/dismissed 30 0 Settled Defense verdict 29 0 Plaintiff verdict 3 1 Undecided unknown 2 5 Table 5 Reviewed for plaintiff, 67 claims Merit No merit Dropped/dismissed 0 13 Settled 34 2 Plaintiff verdict 4 0 Defense verdict 7 0 Undecided/unknown 2 5 juries returned a gratifying verdict for the defense 29 times, but failure occurred in 3 considered defensible. Of those reviewed for plaintiffs (Table 5), settlements were agreed upon among 34 claims believed to have merit; there were plaintiff verdicts in 4, but defense verdicts in 7 thought to have merit, an indication that juries, especially in some communities, still tend to act in favor of physicians. 3. Spinal/intracranial surgery and trauma In a study of 886 personal injury cases [5] reviewed, most, after motor vehicle accident, slip and fall, and industrial injuries (131, 15%), were believed to have had inadvisable and failed spinal surgery, cervical as well as lumbar, half by neurosurgeons and half by orthopedic surgeons. Many complained of long-standing pain problems, a number with neurological deficit, and all remained permanently disabled or claimed such disability, resulting in extended litigation. Strikingly similar factors have been evident among the group of professional liability claims largely because of poor results of spinal surgery. Detailed review of the liability factors (Tables 6 and 7) disclosed an inordinate number of those who had poor indications for surgery to begin with, resulting also in long-standing pain and disability. Many patients had no indication of neural compression clinically, and imaging showed no more than degenerative changes not consistent with symptoms; all of these claims deemed difficult to defend. Several patients with back pain alone had surgery on the basis of discography, and there were many who had multiple operations. There was no explanation in any case for neurological damage, worsening of myelopathy, or durotomy. The medical-legal implications of incidental durotomy, as well as those of vascular and visceral injuries and wronglevel surgery, have already been outlined by Goodkin and Laska [7-9] in their most extensive surveys. Surprisingly, surgery was done at the wrong level in 16 lumbar spine Table 6 Liability factors lumbar spine surgery Poor indications, inappropriate surgery, 25 Increased pain/disability, FBSS Cauda equina/nerve root, damage/s/p, surgery 20 Wrong level 16 CSF leak/pseudomeningocele 5 Delay surgery 3 Vascular/bowel injury 3 Diskitis 1 CSF indicates cerebrospinal; FBSS, failed back surgery syndrome.

4 Editorial / Surgical Neurology 65 (2006) Table 7 Liability factors cervical/thoracic surgery Spinal cord/root 9 Damage S/P surgery Myelopathy worse Poor indications, inappropriate surgery, 14 Increased pain/disability, FSSS Spinal tumor/avm 5 Epidural abscess, epidural hematoma, 3 Postoperative hematoma Wrong level 2 Avulsion AS iliac 1 Infected AS iliac wound 1 cases, one cervical and one thoracic, despite the so-called localizing x-rays in the operating room in every case. Cerebrospinal fluid leaks and disk space penetration were not considered negligent except in the one case of death. Delay of surgery proved difficult to defend even with the realization in a few that such delay might not have been significant. Several cases of epidural abscess and hematoma developed rapidly with the usual catastrophic deficit and failed to improve after surgery. Although all were believed defensible, because of the nature of the problem, all were settled without trial. In most of the claims related to cerebral trauma (Table 8), the injuries were severe, a number became vegetative, a few blocked in,q and 50% died. Others had epidural, subdural, and intracerebral hematomas with poor outcome. Although some claimed delay of surgery, it appeared unlikely that outcome would have been different. In others, the diagnosis of treatable hematoma was unfortunately made too late (failed diagnosis). In some patients, extensive surgery, both cranial and cerebral, was pursued to no avail. One patient, a 40-year-old man with a right temporal lobe hematoma with no mass effect, remained alert and intact as the hematoma was resolving but had a massive bleed at home 3 days after discharge and died. Although this was believed defensible, the insurer decided upon a settlement. Another defensible case of an epidural hematoma in a 50-year-old physician, which rapidly expanded, although there was some delay in imaging and in getting the patient to surgery, resulted in some permanent neurological deficit despite surgery, but at trial, the jury decided in favor of the defense. After a barroom brawl, an 18-year-old drunken husky, taken to the emergency department because of brain injury, was in a wildly combative state uncontrollable by hospital personnel Table 8 Liability factors trauma Craniocerebral 27 Cerebral edema Contusion, hemorrhage Hematomas Some operative Spinal Fracture/dislocation 21 Quadriparaplegia Some operative and was taken into custody by police. Progressive lethargy and stupor led to readmission; he was found to have rightsided Rolandic contusion with increasing edema that failed to respond to medical measures, subsequently recovering after craniectomy but with left hemiplegia. Plaintiff s attorney pictured for the jury a victim of critical head injury, handcuffed and taken to jail, gaining a plaintiff verdict despite vigorous defense testimony that outlined emergency department problems in this situation. An unpredictable acute subdural hematoma developed after a man s discharge from the emergency department. Despite urgent surgery, he was left with serious deficit. Most of the spinal injuries leading to claims of malpractice were severe with fracture/dislocation, claims made commonly of inadequate thoracic or lumbar immobilization, and ill-advised removal of cervical bracing. In fact, 2 cases of cervical instability went on to subluxation and quadriparesis after discharge from the emergency department; ligamentous injury was obvious on subsequent review of cervical spine films. Two patients became quadriparetic after stabilizing cervical spine surgery. Claims related to intracranial surgery (Table 9) have been placed in a specific category to distinguish from those cerebral and vascular lesions that escaped detection initially (Table 1), some of whom subsequently had surgery, whereas others went on to serious deficits or death. In this latter group, the fact of failed diagnosis raised a red flag, and it was difficult to mount a serious defense, even among those in whom it was clear that earlier detection would have made no difference. In general, the claims of malpractice after intracranial surgery were largely those of serious deficits in the face of difficult lesions usually with no merit. Carotid injury while removing the surrounding sphenoid meningioma resulted in carotid occlusion and hemiplegia. Cranial nerve injury and other complications led to claims in patients who had cerebellopontine angle and other posterior fossa surgery in particular. Brain biopsy of questionable necessity, however, resulting in death from hemorrhage was impossible to defend. There were several cases of unrecognized postoperative infection, one with abscess extending into the brain with serious deficit, although the initial surgery had been successful. Others were largely epidural requiring drainage, further surgery, and extensive therapy. Table 9 Liability factors intracranial surgery Brain tumors 6 Deficits S/P surgery Arterial injury Deaths Aneurysms/AVM 8 Deficits S/P surgery Deaths Abscess, cerebritis, infarct 3 Deaths Brain biopsy 1 FSSS, failed spinal surgery syndrome; AS, anterior superior.

5 420 Editorial / Surgical Neurology 65 (2006) Postoperative hematomas accounted for a few claims because there was also delay in recognition and significant deficit as a result. Two patients with recurrent glioblastoma developed radiation damage, although their death was inevitable. A suit was filed years later, and an initial plaintiff verdict was later overturned on appeal. Although there has been much discussion about the importance of informed consent, this has surfaced as a major issue in only a small number of claims. It appears to be an area in which there has been almost inordinate concentration by physicians and hospitals; most medical records now contain extensive caveats regarding procedures in particular for signature by patients. Seemingly important, such documents have not always been a deterrent of litigation, with patients claiming that they did not have adequate understanding or that the physician had not provided a full explanation of the risks. 4. Discussion It has been said that our greatest need is for reliable justice [10] and that juries are being asked to decide standards of care, not only disputed facts, and it is questionable that even physicians are certain about what standards to abide by. It is in fact clear that many cases, now and 20 years ago, have been settled because of the plaintiff s problem and not because of actual negligence. Despite all the awareness of litigation in recent years and despite the hue and cry for tort reform and capitation of noneconomic awards in the long run, it seems difficult to predict significant changes under the present system over the next 20 years. The most extensive review of medical malpractice by Studdert et al [11] covers many issues on the evolution of malpractice litigation, empirical research of the malpractice system, and tort reform, but concludes that although proposed Federal legislation may have some beneficial effects on insurance markets over the medium to long term, it will do little to alleviate the haphazardness of compensation for patients injured by medical care. The continued adversary system is said to undermine the goals of transparency and error reduction, and remediation requires more fundamental reform. A viable alternative, a no-fault patient compensation system such as that of Sweden, has been reviewed in detail by Adelman and Westerlund [1]. Patient compensation with a capitation of US$ is entirely separate in this system from disciplinary actions against doctors who perform poorly. The Swedish Medical Responsibility Board, however, reviews cases in which patients claim malpractice, assigns investigation of the complaint to a physician in the same discipline who considers testimony from the physician and the complaining patient, reviews the medical records, and provides an opinion for the Board. To be certain that physicians do not protect each other, the Board has a nonphysician majority, although its ruling admonition, restriction of privileges, or withdrawal of licensure is typically unanimous. Although their capitation is less than that of many awards in our courts, Sweden s social system subsidizes many of the plaintiffs costs; thus, there is a lower need. Attempts at having such a system in our country would of course be vigorously opposed by trial lawyers; yet, malpractice has become such a pervasive issue in the medical profession that a no-fault alternative continues to be suggested by a number of physicians. No discussion on the subject of medical-legal issues and testimony would be complete without referring to the guidelines for expert opinion as established and updated by national societies, in particular, the American Association of Neurological Surgeons [3]. Such national standards have been imposed to provide for responsible and appropriate reviews and testimony, to identify departure from generally accepted neurosurgical practice rather than a personal opinion. The stated rules also require the neurosurgical expert witness to be an bimpartialq educator for attorneys, judges, and jurors, virtually impossible in an adversary system when the expert is engaged by one side with the intention of supporting its particular position. Although hardly impartial, the expert can at least apply restraint in his testimony to avoid excessive and irresponsible opinions. The long-standing Professional Conduct Committee of the American Association of Neurological Surgeons receives complaints from neurosurgeons who have grievances concerning testimony of plaintiff experts and provides a judicial type of review to determine if there has been infraction of the rules. This may of course act as a deterrent of incorrect testimony, but it can also represent yet another layer of controversial opinion short of a reasonable solution. The Journal of the American Medical Association in a critical editorial condemned the adversary practice of pitting physicians against each other and called the attempt at bringing out expert medical testimony a bdisgraceful failureq [2]. It further suggested that if physicians would refuse to go on the stand as expert witnesses, some new method would be devised. The fact that this editorial was published more than 100 years ago indicates that little progress has been made. Freidberg [6], in a similar editorial in 1987, was equally forthright, pointing out that the trial system is inequitable. His belief and that of others remain that, without the expert witness, the prosecution of malpractice suits would be impossible and that malpractice for physicians would no longer exist. Such an opinion fails to allow for obvious injuries, such as those outlined in this study, but offers hope that their plight would be considered by governors and legislators to construct a rational and fair system of compensation (no fault?), a distant hope at best. Charles A. Fager, MD Department of Neurosurgery Lahey Clinic, Burlington MA 01801, USA address: Tel.: ; fax

6 Editorial / Surgical Neurology 65 (2006) References [1] Adelman SH, Westerlund L. The Swedish patient compensation systems. Bull ACS 2004; [2] A disgraceful failure. JAMA [3] Blackett WB. AANS testimony rules rewritten. AANS Bulletin Spring 2004;9-10. [4] Fager CA. Professional liability and potential liability. Neurosurgery 1985;16(6). [5] Fager CA. Stop talking to the jury. New York (NY)7 Chap 10, Jay Street Publishers; [6] Freidberg SR. Editorial Surg Neurol 1987;28. [7] Goodkin RG, Laska LL. Unintended bincidentalq durotomy during surgery of the lumbar spine: medicolegal implications. Surg Neurol 1995;43:4-14. [8] Goodkin RG, Laska LL. Vascular and visceral injuries associated with lumbar disc surgery. Surg Neurol 1998;49: [9] Goodkin RG, Laska LL. Wrong disc space level surgery: medicolegal implications. Surg Neurol 2004;61: [10] Howard PK. The best course of treatment. N Y Times, Op-ED [11] Studdert DM, Mello MM, Brennan TA. Medical malpractice. NEJM 350(3):

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