Reprinted from: North American Spine Society
16th Annual Meeting, Seattle, Washington
 Page 13                                                                                                                                                                                                           

                                     Saturday, November 3

9:21 10:04 AM

Concurrent Session II:

Epidemiology & Medical Practice Issues

42B. Malpractice Claims Made Against Orthopaedic and Neurosurgical Spine Surgeons Over a 21 Year Period

Daveed D. Frazier MD; David Rojer; MD; John Brennan, MD; Andrew Patterson, MD, New York, NY

Introduction: We live in an increasing litigious society. As physicians, malpractice claims are considered a simple cost of doing business. If we were more aware of the types and circumstances of cases involved in most malpractice cases, we might be able to avoid such cases in the future. To this end we looked at data taken from the largest physician owned professional liability carrier in the United States to determine if certain trends were notable in cases which were filed. We focused on claims related to spine surgery performed by orthopaedic and neurosurgeons from a specific region in New York State. The identification of these trends might give us useful information for not only patient education but also for the way in which we practice medicine.

Methods: All insurance claims made between 1975 and 1996 at Mutual Liability Medical Insurance Company (MLMIC) were reviewed. Those claims made against spine surgeons in the districts of New York City, Long Island and upstate New York were isolated and provided the database for information obtained in this study. Charts on each case were reviewed and the information was tabulated to look for trends in malpractice claims. The information collected included: district, insurance type, age of patient, sex of patient, hospital type (i.e., teaching versus community), spine surgeon (i.e., orthopaedic versus neuro), time of injury, anatomic area of injury, insurance company rating of case to be defensible or not defensible, procedure and allegation of wrong doing. This information was compared to national and regional data to provide trends in malpractice claims filed against spine surgeons.

Results: There were a total of 176 cases filed against spine surgeons between 1981 and 1997. Of the cases filed 75 were against orthopaedic spine surgeons and 101 were against neurosurgeons. 62% of orthopaedic surgeons being sued had to give some monetary payout. There was no difference between orthopaedic and neurosurgeons (p=0.55, Fisher Exact Test). If you were a spine surgeon and were sued the average indemnity was $280,328 (median $235,000). This indemnity didn't differ between orthopaedic and neurosurgeons (p=0.599). In cases involving the cervical and thoracic spine there is a trend for neurosurgeons to pay more if they are sued. In the cervical spine neurosurgeons paid $427,511 while orthopaedic surgeons paid $250,833. In the thoracic spine neurosurgeons paid $511,063 while orthopaedic surgeons paid $315,027. There is no significant difference in indemnity paid by orthopaedic surgeons versus neurosurgeons in cases involving the lumbar spine‑orthopaedic surgeons paid

114                                                                         North American Spine Society

$254,981 and neurosurgeons paid $239,488. Certain surgical procedures have a higher number of lawsuits filed. For orthopaedic surgeons, the overwhelming procedure associated with lawsuits are lumbar laminectomies for discectomies which accounts for nearly 55% of all cases filed against orthopaedic surgeons. This is followed by scoliosis correction which accounts for 11%. Lumbar laminectomies for discectomies accounts for 49% of all cases filed against neurosurgeons. This is followed by posterior cervical laminectomies which accounts for 13% of cases; and lumbar decompression for stenosis which accounts for 10% of cases filed against neurosurgeons. Of the cases which were filed certain procedures are associated with a higher payout. For orthopaedic surgeons, suits associated with lumbar laminectomies and fusion on average pay out $332,443 where lumbar laminectomies for discectomies on average payout $260,167. For neurosurgeons, suits associated with posterior cervical laminectomies on average pay out $348,426 where lumbar laminectomies for discectomies on average pay out $217,946. More cases led to payout when filed upstate vs. in New York City or Long Island: 75.6% vs. 58.7% or 53.6% (p=0.005). Although cases filed upstate had the highest rate of payout, they had the lowest median payout: $155,000 vs. $625,000 or $275,000. Community hospitals had a significantly higher rate of payout vs. teaching hospitals: 75.4% vs. 48.4% (p=0.000). When controlling for location of the hospital this difference persisted. There is a trend toward lower payouts in community hospitals vs. teaching hospitals (p=0.098). For both neurosurgeons and orthopaedic surgeons the most common allegations being filed in malpractice cases are chronic pain postoperatively, postoperative infections, nerve damage, incorrect levels and dural tears.

Discussion: A number of malpractice claims are associated with events which would typically be included in perioperative consent forms: chronic pain, infection, dural tear, nerve damage. Knowing these areas might help us to provide better informed consent to our patients in the future. Although the amount of indemnity paid in certain claims provides us with a number of different trends, the possible financial loss should not affect the way in which we practice medicine. Ultimately, our goals as physicians should not change: excellent patient care always.