AANS Neurosurgeon : Peer-Reviewed Research

Volume 20, Number 1, 2011

Review of Closed-Claim Malpractice Litigation in Neurosurgery

Alan M. Scarrow, MD, Edie Zusman, MD, Perry A. Ball, MD, Monica Wehby, MD

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Alan M. Scarrow, MD, JD, St. John’s Clinic Neurosurgery, Springfield, Mo.; Edie Zusman, MD, Sutter Neuroscience Medical Group, Sacramento, Calif.; Perry A. Ball, MD, Dartmouth- Hitchcock Medical Center–Neurosurgery, Lebanon, N.H.; Monica Wehby, MD, Microneurosurgical Consultants PC, Portland, Ore.
Correspondence to: alan.scarrow@mercy.net
Abbreviations: TDC, The Doctors Company
Key Words: malpractice cost, professional liability
Received: July 14, 2009
Accepted: Feb. 1, 2011
Disclosure: The Doctors Company paid for the authors’ food and for an author’s lodging during their review of TDC data. TDC administers a partner program for the AANS.

The authors reviewed 90 closed-claim neurosurgical malpractice cases from the database of one medical malpractice insurer, TDC. There were 57 male plaintiffs and 33 female plaintiffs, and their average age was 45.4. The defendant physician was successful in 60 percent of the cases, with success defined as case dismissal, abandonment by the plaintiff, verdict for defendant, or summary judgment for the defendant. Nearly all of the defendants were certified by the American Board of Neurological Surgery. The average cost to defend all claims was $86,882, while the defense cost doubled for cases that went to trial. The average payment for cases that settled was $392,433, and the average award for cases tried was $378,369. Seventy percent of the cases reviewed involved spine care, with a majority involving instrumentation for some type of degenerative disease of the spine. In 85 percent of the cases patient care originated with an office visit. In 70 percent of the cases improperly performed surgery was the legal allegation against the neurosurgeon, but the authors found that in 87 percent of cases factors other than the defendant’s actions may contribute to generation of a claim.

Medical malpractice is a topic that weighs heavily on the minds of most neurosurgeons. A thorough understanding of factors that underlie malpractice cases may help neurosurgeons and the neurosurgical profession in several ways. This information might prospectively help neurosurgeons understand which types of cases represent a litigation risk. It also is possible that specific nuances in patient care exist and could be heeded to help avoid potential patient safety risks. Knowing which patients tend to pursue malpractice claims additionally might help prove or dispel misperceptions about those patients, particularly under what types of situations they tend to present.

In this review we seek to evaluate the epidemiological profile of neurosurgical malpractice claims and educate neurosurgeons on those issues, including the characteristics of patients who bring malpractice claims, the types of cases most often litigated, the injuries most frequently associated with neurosurgical malpractice claims, the underlying causes of those injuries, and the most important factors driving a medical malpractice suit.

Materials and Methods
We initially developed a set of 12 questions that were thought to be useful in describing malpractice plaintiffs and the type of care associated with a malpractice claim. The questions addressed the type of case (spine, cranial, peripheral nerve), the specific allegation associated with the case (e.g., wrong level), the plaintiff’s age, the state where the case was filed, whether published clinical guidelines were used during the case, other defendants named in the case, the clinical outcome of the plaintiff, the outcome of the litigation, the costs incurred by the defendant, insurance status of the plaintiff at the time of treatment, and whether the plaintiff used an expert witness report or testimony.

The data source was the TDC neurosurgical database for closed neurosurgical malpractice claims. From several hundred charts at TDC the authors randomly selected and examined claims that occurred between Jan. 1, 2004, and June 30, 2009, regardless of indemnity payment or amount of allocated loss adjustment expense (e.g., fees paid to outside attorneys, experts, and investigators used to defend claims). TDC writes malpractice coverage across the U.S. and has particular market penetration in its home state of California. The charts contain information on the litigants and allegations generating the claim, costs incurred by TDC as a result of the claim, and a narrative by TDC employees and attorneys on legal processes pertinent throughout the history of the claim. The charts do not contain clinic notes, operative reports, imaging studies, laboratory values or physician depositions.

First we randomly selected 21 charts. Each of the first 10 charts was reviewed and discussed by all three authors, and the original 12 questions were adjusted to define issues raised during discussion that were worthy of being tracked. The remaining 11 charts were each reviewed and discussed by two authors, and the questions once again were altered based on the authors’ collective sense that the data should be tracked.

A list of 46 questions was finalized (Table 1). The authors then developed an online survey (Survey Monkey, http://www.surveymonkey.com) based on the 46 questions and proceeded to review and score the initial 21 cases. At least two authors checked and verified the data that were included in this review. Two authors reviewed an additional 69 cases at TDC nine months later. Thus a total of 90 cases were reviewed and comprise the data for this paper.

In the 90 cases reviewed there were 57 male plaintiffs and 33 female plaintiffs. The average age of the plaintiffs was 45.4. All plaintiffs were alive at the time the claim was initiated, and no estates initially brought claims against defendants. Claims were filed in 20 of 50 states in which TDC writes policies. The highest number of cases occurred in Illinois (17 cases) and California (14 cases).

Thirty-one of 90 cases (34 percent) were dismissed by the court, and an additional 33 cases (37 percent) were settled before trial, during trial or after a mistrial. Four cases were abandoned by the plaintiff and 13 were concluded by summary judgment (one for the plaintiff and 12 for the defendant). Nine of the cases (10 percent) went to trial. Of those nine cases, verdicts were returned for the plaintiff in two cases and for the defense in seven cases. For all 90 cases the average cost of defense was $86,882. The cost more than doubled to defend the nine cases that went to trial, averaging $182,734.

The defendant physician was successful in 54 of 90 cases (60 percent). Success is defined as case dismissal, abandonment by the plaintiff, verdict for defendant, or summary judgment for the defendant. Nearly all of the defendants in the 90 cases reviewed were certified by the American Board of Neurological Surgery (81 certified, four not certified, five unknown). The plaintiff was successful in 36 of 90 cases (40 percent), and 33 of these cases were settled. The settlement amount was reported for 31 cases, and these settlement payments averaged $392,433 with a range of $7,500 to $1,950,000. Two of the nine cases that went to trial resulted in a victory for the plaintiff. The average total payment after trial was $378,369, an amount that is not significantly different from the average settlement payment. All of the payments were listed as economic damages. However, 17 plaintiffs alleged noneconomic damages of $1 million or more at the beginning of the suit.

Additional defendants were listed in 86 cases. In more than half of these cases the hospital was named as a defendant along with the neurosurgeon. Others also named as defendants were physicians (38 percent) and the neurosurgeon’s group (20 percent). The most frequently named specialty for additional physician defendants was internal medicine/critical care.

The patient initially presented to the neurosurgeon’s office in 85 percent of all cases. Only 6 percent of the cases were generated after initial treatment in the emergency room, and 9 percent started as a hospital consultation. In one additional case the neurosurgeon met the patient in the operating room for the first time. Even though very few of the cases started with care provided in the emergency room, it should be noted that in around one-third of cases there was a remote history of trauma, accident or prior injury that was thought to play a role in the patient’s presenting symptoms.

Almost all claims (87 of 90) were generated after some type of neurosurgical procedure. The procedure involved cranial care in 23 percent of cases and spine care in 70 percent of cases. Most spine cases involved the lumbar spine (54 percent), followed by the cervical spine (37 percent) and the thoracic spine (9 percent). A majority of these spine cases (55 percent) utilized some type of implant or instrumentation. The underlying source of the plaintiff’s pathology was most commonly degenerative, reflecting the preponderance of spine cases in this series (Figure 1). Following surgery 54 percent of the plaintiffs did not have a new or worse neurological deficit, and 7 percent had no neurological deficits and no pain. The plaintiff’s condition, not necessarily related to any surgery, was most commonly minor neurological deficits with pain at the time of lawsuit resolution (Figure 2).

In 62 of the 87 cases that followed a neurosurgical procedure the patient was noted to have a neurological deficit prior to surgery (Figure 3). Most commonly this was radiculopathy. In fewer than half of the cases patients were noted to have a new or worse neurological deficit after surgery than they had before surgery. Whether or not the patients had a new or worse neurological deficit following surgery, the majority of plaintiffs (60 percent) had an additional surgery to address problems such as complications or lack of improvement after the first surgery. The outcome after the second surgery was variable: About 44 percent of patients were unchanged, 32 percent were worse and 24 percent were improved.

Very few of the cases (7 percent) involved surgery on the wrong side or at the wrong level. Even fewer cases (2 percent) alleged a retained foreign body such as a surgical sponge.

The legal allegation against the defendant in 70 percent of the cases was improperly performed surgery. However, a plaintiff can make more than one legal allegation against a defendant in a medical malpractice case, and this was done in 46 percent of cases in this series. These other allegations included failure to diagnose (28 percent), lack of informed consent (16 percent), unnecessary surgery (9 percent), and inappropriate postoperative care (9 percent).

Given the entire narrative of the case, the reviewers tried to identify factors other than the defendant physician’s actions that may have contributed to the generation of the case. We found that in 78 of the 90 cases the litigation was the result of other such factors, most commonly subsequent treatment or surgery by another physician (Table 2). In some cases comments made by that physician to the plaintiff seemed to have some influence on prompting the lawsuit.

This review of 90 neurosurgical malpractice claims from one medical malpractice insurer, TDC, offers several insights for neurosurgeons as to who sues them and why.

First, the vast majority of cases involved elective spine surgery for degenerative spine disease, and the majority of those spine cases involved placement of instrumentation. Other studies of neurosurgical malpractice also have shown a preponderance of spine patients (2). Spine care has come to dominate neurosurgical practice, and instrumentation has become commonplace in spine surgery. The fact that most of these malpractice claims arose from elective, degenerative spine disease underscores the importance of appropriate patient selection, establishment of reasonable patient expectations, and proper execution of the technical aspects of the surgery in this patient population.

Second, the average age of these patients, 45.4, was much younger than what might be expected in a degenerative spine population. Other studies also have noted a peak in malpractice claims in the fifth decade of life (3). This data may reflect the fact that younger patients would be able to seek larger claims since they have a longer time span to either suffer from their injuries or have limited income due to their inability to work. In contrast, from an actuarial perspective older patients would not have the time to accumulate the economic damages that could be calculated for a younger patient. In our review the economic damages (lost wages, additional medical care) were far more prevalent than noneconomic damages (pain and suffering): All of the reported damages were economic despite some excessive claims for the latter.

Third, it may be that younger patients undergoing elective spine surgery represent a more attractive patient population for plaintiff attorneys. For example, younger patients undergoing elective spine surgery who later bring a malpractice claim due to either neurological injury or pain (thus generating higher economic damages) would offer greater opportunity for generation of a large award, justifying the financial risk of litigation for the plaintiff attorney.

Fourth, the absence of a neurological deficit following surgery does not necessarily eliminate the risk for generating a malpractice claim. In our review 54 percent of the plaintiffs did not have a new or worsened neurological deficit following surgery, and 7 percent had no neurological deficits and no pain. One explanation for this circumstance could be that good outcomes or quality care may differ in meaning to patients and their neurosurgeons. It is possible that even though the ultimate outcome for a patient met with the neurosurgeon’s expectations, the journey to that outcome was simply not acceptable to the patient. Further, in some cases there may be an impetus to settle simply because of the severity of the plaintiff’s neurological deficits and the resulting sympathy engendered in jurists during a trial. Other authors have pointed out that it is not uncommon for settlements to occur in neurosurgical malpractice cases where the plaintiff has neurological deficits, despite the common belief that the deficits are unrelated to actions of the physician (1). This reasoning may be supported by our findings that all of the claims in this series were generated by patients who were alive at the time the claim was initiated. No plaintiff’s estate brought an initial claim against a defendant neurosurgeon, although if the plaintiff died subsequent to filing the claim the plaintiff’s estate may have carried on the claim.

Fifth, surgery was performed in 87 of 90 cases, and in 70 percent of these surgical cases one of the specific allegations was improperly performed surgery. Conclusions drawn from this fact are limited since the TDC charts do not contain operative and clinic notes, images or physician depositions, making it impossible to determine whether the operative case was performed within a reasonable standard of care. However, in a substantial minority of cases (46 percent), the plaintiff also made a claim of failure to diagnose, unnecessary surgery or inappropriate postoperative care. These claims indicate that while proper surgical technique is clearly important, a real source of risk for neurosurgeons is also the preoperative and postoperative care period. This is also the period when the neurosurgeon is building a relationship with patients and their families. As such, listening to patients, understanding their stories and attending to their needs may be as important as proper execution of the surgery.

More than 90 percent of the defendant neurosurgeons in this series were board certified. Since board-certified neurosurgeons typically have more experience than board-eligible neurosurgeons, one possible interpretation of this data is that experience does not guard against liability exposure. Thus, even an experienced neurosurgeon who executes a technically perfect surgery but fails to develop the requisite relationship with patients and their families before and after the surgery may be in no better position from a liability perspective than the inexperienced neurosurgeon who is less technically astute but has excellent rapport with patients and their families. Another interpretation is simply that the longer a neurosurgeon is in practice and accumulates more case volume, the greater the risk of eventually defending against a malpractice claim. Alternatively it could be that neurosurgeons with more recent training (typically board eligible) have fewer claims because they are able to leverage training in the latest techniques into lower surgical risk.

Lastly, it is notable that in 78 cases in which the reviewers felt that the litigation was the result of factors other than the defendant physician’s actions, 35 percent involved subsequent treatment by another physician. We do not know from reading the TDC files whether that subsequent physician-plaintiff interaction directly led to the claim. It is plausible, however, that the words and actions of subsequent physicians (neurosurgeons or otherwise) treating the plaintiff’s condition may have a significant impact on the desire of a patient to bring a malpractice suit against the original surgeon.

There are significant limitations in this type of closed-claim review. It represents the experience of a single malpractice carrier and may not be representative of all neurosurgeons throughout the country. Another limitation is that we cannot determine from the TDC data whether the claims were legitimate because operative reports, images and clinic notes were not available to further determine whether the standard of care was met in these cases. Further, we do not know if the expert witness testimony in the case was legitimate or how it contributed to the ultimate outcome of the claim. This is an area for further investigation.

In this review of 90 neurosurgical malpractice claims, the average cost for defense was $86,882, while the cost of defending cases that went to trial more than doubled. The defendant physicians were successful in 60 percent of the cases. Approximately one third of the plaintiffs were ultimately successful in obtaining some compensation from the defendants. The majority of cases were elective spine surgeries where the patient initially presented to the neurosurgeon’s office with a degenerative condition. Cranial and peripheral nerve cases as well as those related to trauma were uncommon. Plaintiffs tended to be relatively young and thus have a longer anticipated work life, which may have increased the amount of economic damages alleged or obtained in the lawsuit. In 54 percent of the claims the plaintiffs had no neurological deficit following treatment. Seventy percent of cases alleged an improperly performed surgery, but a substantial minority also alleged unnecessary surgery or improper postoperative care. A number of factors other than the defendant’s actions may contribute to generating a malpractice claim, perhaps most notably the words and actions of physicians who subsequently provide treatment to the plaintiff.


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