Malpractice litigation and spinal surgery

                           Dr. KS Dhillon 

Introduction

The Macmillan dictionary defines medical malpractice as “carelessness or improper treatment by a health care worker that results in injury or death”.

Negligence is defined by the Oxford English Dictionary as ‘a want of attention to what ought to be done or looked after’, and ‘a failure to match up to required standards of performance’ [1]. 

In the law of negligence, there is a three-stage test, the first that the doctor owed the patient a duty of care, the second that the duty was breached, and third that the doctor caused the breach. The case will fail If any of these cannot be proved [1]. The plaintiff has to prove that the standard of care has fallen below what is acceptable. 

A recent judgment in Chester vs Afshar (2004) [2] has raised the threshold for what is deemed acceptable. Patients are also becoming more informed of their right to redress.

Chester v Afshar [2004] 3 WLR 927

In Chester v Afshar, the claimant Chester had suffered back pain for about 6 years. She was treated conservatively by Dr. Wright, a consultant rheumatologist. An MRI of the spine showed disc protrusions. The pain got worse, and she developed severe pain with reduced bladder control. A repeat scan showed marked disc protrusions into the spinal canal. 

She was referred to a distinguished consultant neurosurgeon, Mr. Afshar for surgery. Mr. Afshar became subject to a legal and professional duty to take reasonable care and skill in examining her, assessing her case, and advising her on the need for surgery to treat her condition. He was also obliged to take reasonable care and skill in doing the operation and looking after her. 

The surgery which was needed to treat her condition carried a 1-2% risk of making her condition worse, even if it was performed without negligence.  Mr. Afshar however did not warn her of this risk. The claimant underwent the surgery and postoperatively developed a cauda equina syndrome leading to a seriously adverse outcome. Mr. Afshar took reasonable care to examine, assess her condition, and carry out the surgery in compliance with his legal duty.

Miss Chester, however, contended at her trial that Mr. Afshar had performed the operation negligently but the judge, however, rejected this complaint and stated that the surgeon was not negligent in performing the operation. The trial judge found that the failure to warn the patient of this small unavoidable risk was a breach of duty.

Miss Chester argued that had she been warned of the risk she would not have had the operation straight away but would have taken time to consider other options and discuss the risks of surgery with her family.  She did not, however, say that she would never have had the operation.

The judge was of the opinion that if she had the operation on another occasion it may have been successful and the complication may not have materialized. Hence, the judge found for the claimant. The defendant then appealed but the Court of Appeal dismissed the appeal. The defendant then appealed to the House of Lords on the grounds of causation. The defendant said that she was likely to have consented to the operation. He also said that even if the operation had been carried out on a different occasion it carried the same risk.

With a 3:2 decision at the House of Lords, with Lord Bingham & Lord Hoffman dissenting, the appeal was dismissed. Lord Hope summed up his decision as follows:

"To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty" [2].

In essence, what the decision means is that the doctor owes a duty to the patient, to warn of risks of surgery, however small the risk is, and even if the risk is unavoidable.

Litigations and spinal surgery

In the USA the medical malpractice system accounts for about 2.4% of the health care spending at an estimated cost of $55.6 billion dollars yearly [3]. In the USA, spine surgery represents one of the most litigious medical specialties [4,5].

Litigation is more after spine surgery despite the fact that there are fewer postoperative adverse events in spinal surgery as compared to other commonly performed orthopedic operations such as hip fracture surgery and total joint replacement surgery [6].

Incidence of Malpractice Claims

In the USA it has been estimated that most spine surgeons will face one or more malpractice claims during their career as spine surgeons [7].

Jena et al [8] analyzed the physician malpractice data from 1991 to 2005. The information was obtained from a large professional liability insurer with a nationwide client base in the USA. They found that 19.1% of neurosurgeons faced medical claims each year. Their annual claim rate was higher than any of the other 24 medical specialties evaluated.

Rovit et al [9] reported that within a 5 year period 48.5% of neurosurgeons faced 1 claim and another 23% faced 2 claims.

The majority of claims faced by neurosurgeons stem from elective spine surgery [9,10,11].

The malpractice claims against orthopedic spine surgeons are more than those faced by neurosurgeons.

Agarwal et al [12] found that 23.8% of orthopaedic spine surgeons and 17.3% of neurosurgeons face malpractice claims. 

Daniels et al [13] found that 58.1% of orthopaedic spine surgeons and 33.8% of neurosurgeons faced malpractice claims.

Besides surgeons, nonsurgical specialties as emergency medicine providers (4.8%), radiologists (4.2%), and neurologists (3.6%) are also involved in spinal litigation [12].

Types of Spinal Procedures Resulting in Claims

The majority of the malpractice claims are from routine elective spine surgery and not from complex procedures or from spinal trauma surgery [5,12]. 

About 45% to 65% of the claims are for lumbar surgery, 20% to 35% for cervical surgery and 10% to 20% for thoracic spine surgery [12,13,14].

Epstein [15] carried out a study of cervical spine malpractice cases and found that 42% of the malpractice claims arose from 1- or 2-level anterior cervical discectomy and fusions.

Agarwal et al [12] found that one-third of claims, involving spine surgery in the USA, arose from isolated lumbar decompression.

Most of the claims filed following spine surgery are for relatively straight forward procedures and not for complex procedures.

Agarwal et al [12] compared malpractice claims after elective and emergency surgery and they found that the indemnity payments were higher for emergency cases. The verdicts were more often in favour of the plaintiff when litigation was for emergency surgery. 

What are the reasons for litigation?

The most common reasons for spine litigation involves complications following surgery, lack of informed consent, and failure to diagnose or treat the patient in a timely manner. 

Agarwal et al [12] found that for elective cases, there were four common reasons for litigation:

• Procedural error: 71.4%
• Lack of informed consent: 29.9%
• Failure to treat: 20.8%
• Failure to diagnose: 19.5%

For trauma cases the common reasons for litigation were:

• Failure to diagnose: 76.2%
• Failure to treat: 76.2%
• Failure to order a diagnostic test: 42.9%
• Failure to refer: 28.6%
• Misinterpretation of test: 28.6%

It is important to make a timely and accurate diagnosis and discuss the diagnosis and treatment options with the patients. The treatment options could be surgical or non-surgical. The risks and benefits of each option have to be explained to the patient. This can help curb litigations.

If surgery is to be carried out, the indications for surgery have to be well documented. The reason for this is because the expected results are far less predictable if the actual indications for the surgical option are not clear to start with. When the phrase “unindicated surgery” is pronounced in court, it does not bode well for the defense (surgeon) [16].

What are the outcomes of Litigation?

The likelihood of malpractice suits across specialties varies substantially. The size of indemnity payments also varies. The risk of facing a malpractice claim is high, especially in spine surgery. Most claims, however, do not lead to payments to plaintiffs [7]. 

Many malpractice claims do not end up in court or in a settlement. When cases do end up in the court, most result in a favorable outcome for the defense [7]. 

Jena et al [4] reviewed 10,056 claims against doctors, from all medical specialties in the USA, who were covered by a large professional liability insurer with a nationwide client base. During their study period, they found that each year 7.4% of all doctors had a malpractice claim. They also found that 1.6% of the claims lead to a payment. Seventy-eight percent of all claims did not result in payments to the claimants. 

The proportion of doctors facing a claim each year varied from 19.1% in neurosurgery to 2.6% in psychiatry. In thoracic–cardiovascular surgery it was 18.9%, general surgery 15.3%, and orthopaedic surgery slightly below 15%.

Jena et al [4] also found that by the age of 65 years, about 75% of doctors in low-risk specialties had faced a malpractice claim, and about 99% of doctors in high-risk specialties would have faced a claim.

When the cases go to court, fifty-four to seventy-five percent of the cases end in favour of the surgeon (defendant) [7].

Daniels et al [13] reviewed 234 medicolegal cases following spinal surgery and they found that 54.2% of cases were ruled in favour of the defense, 26.1% in favour of the plaintiffs’, and 19.6% ended in a settlement. 

Higher rates of plaintiffs’ decisions were seen in cases with catastrophic complications, delay in diagnosis of complication, and delay in treatment [13]. 

Daniels et al [13] found that the awards given for plaintiff rulings ranged from $134,000 to $38,323,196 (mean $4,045,205 ± $6,804,647). In cases where settlements were reached, the awards ranged from $125,000 to $9,000,000 (mean $1,930,278 ± $2,113,593). The awards for settlements were significantly less than those for plaintiff rulings.

Generally, cases with catastrophic complications and delays in diagnosis or treatment are difficult to defend in litigation proceedings.

Cost of the Malpractice Litigation System

The costs of spine surgery litigation are very high. The magnitude of indemnity payments and associated legal expenses are high.

A study of neurosurgical litigation cases by Rovit et al [5] showed that the mean indemnity payments for cervical spine cases was $457,453 and for lumbar spine cases was $485,182. These indemnity averages exceed the mean payment of all other specialties.

The defendants’ legal costs remain high even after successful claims. 

The study by Rovit et al [5] found that the average legal fee for cases not proceeding to trial was $28,440 and for cases that went to trial was 

$73,000. The high indemnity payouts and high defense expenditures lead to higher malpractice premiums for the surgeons.

A national survey of neurosurgeons in the USA by Nahed et al [17] found that 70% of neurosurgeons spend more than 10% of their gross annual revenue on malpractice premiums. 

In another survey, Din et al [18] found that surgeons who mainly performed spine procedures spent an average of $104,480.52 yearly for professional liability insurance. 

Mello et al [3]  estimated that in the USA, the overall annual medical liability system costs about $55.6 billion in 2008, or 2.4 percent of the total health care spending. The indemnity payments were $5.72 billion and the administrative expenditures were $4.13 billion. The defensive medicine costs were much higher at $45.59 billion.

Defensive medicine comes into play “when doctors order tests, procedures, or visits, or avoid certain high-risk patients or procedures, primarily (but not solely) because of concern about malpractice liability” [19].

The spine surgeons are three times more likely to practice defensive medicine as compared to non-spine neurosurgeons [18].

Is the malpractice litigation system a just system?

There are two principal objectives of the medical malpractice liability system. One is to compensate patients who are injured through the negligence of healthcare providers and two to deter providers from practicing negligently [20]. The system, however, is slow and very costly to administer. Unfortunately, it sometimes fails to compensate patients who have suffered from poor medical care, and it compensates those who haven’t suffered [20].

Some patients who have legitimate claims are turned away because of the high costs of litigation and in many of these cases, the potential monetary award is simply too small to justify the time, resources, and risk of an unfavorable outcome [5]. 

In some cases, the outcome of litigation does not match the strength of the evidence presented at the trial. Several studies, where independent physicians were asked to grade the strength of adjudicated malpractice claims, found that the defendants won 80% to 90% of cases where experts deemed that the doctors had provided good medical care and about 70% of cases where medical care was uncertain [21-26].

Epstein [15] in a review of 36 cervical spine cases, believed that only 66.6% of patients who received indemnity had legitimate claims. On the other hand, 23.8% of patients with legitimate claims did not receive any indemnity.

The current medicolegal malpractice system is far from perfect. It is doing a poor job in providing indemnity to patients who are harmed due to negligence and at the same time, it punishes a number of doctors who are providing good medical care [7].

Conclusion

The judgment in Chester vs Afshar has raised the threshold for what is deemed acceptable in the medical malpractice arena. Patients are now becoming more informed of their right to redress.

The costs of spine surgery litigation are very high. In the USA, spine surgery represents one of the most litigious medical specialties. The most common reasons for spine litigation involves complications following surgery, lack of informed consent, and failure to diagnose or treat the patient in a timely manner. 

The likelihood of malpractice suits across specialties varies considerably. The size of indemnity payments also vary. The risk of facing a malpractice claim is high, especially in spine surgery. Many of these claims, however, do not lead to payments to plaintiffs

The current malpractice system is far from perfect. Unfortunately, it is doing a poor job in providing indemnity to patients who are harmed due to negligence while at the same time it punishes a number of doctors who are providing good medical care for the patients.

The cost of defensive medicine is also very high and defensive practice patterns negatively affect patient care.

By recognizing and understanding the common pitfalls leading to malpractice claims, spine surgeons can adapt their responses to potentially lower their risk of litigation. 

References

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