This is the first in a series from The Doctors’ Company on potential liability exposures faced by neurosurgeons.
The Doctors’ Company (TDC) is dedicated to sharing claims information with our insured policyholders. With the benefit of insight into actions and conduct that can precipitate claims, TDC members can avoid repeating them. This article focuses on manageable events and their associated loss prevention measures. In keeping with this philosophy, TDC Risk Management recently conducted a study of neurosurgical claims.
We used the following criteria to select cases for the study:
- Events were defined as formal lawsuits or demands for money.
- Events occurred in the five-year period from 1/1/95 to 12/31/99.
- Only closed or finalized events were included.
- No individual physician or state information was disclosed.
There were 174 claims and 107 neurosurgeons in the study, substantiating the high-risk exposure status of neurosurgeons. This is indicative of TDC’s actuarial data that neurosurgeons experience one claim every two years. The average for most other specialties is one claim every five years. To develop a database consistent across all events, we identified events by operative periods-preoperative, intraoperative, and postoperative.
Preoperative Elements
Preoperative elements included 29 misdiagnoses, two informed-consent issues and three medication-related problems. In the preoperative category, missed diagnoses resulted in delayed treatment, less than optimal outcomes, paralysis and death. Some loss prevention measures that may be implemented to avoid any or all of these events described include:
- Conduct a full workup with complete physical examination for every patient.
- Ask questions that will identify other issues that may have an impact on the final diagnosis.
- Listen carefully to all information the patient and family volunteers.
- Obtain consultations when indicated for all observations that are not within normal limits. Be sure to relate any specific neurosurgical concerns to the consultant.
- Provide adequate, comprehensive orders for nursing staff.
- Follow your instincts.
Although the informed consent and medication-related events were minor, they are still noteworthy as avoidable events to be managed. Include patient comprehension assessments in your informed-consent process. Always ask the patient clearly worded questions about their current medicine use. It is no longer adequate to ask, “What medications do you take?” Drugs are often considered by the lay person to refer to only those obtained by prescription. Instead, ask what the patient buys from the pharmacist or in the drug store, which herbal therapies they use and whether birth control pills are taken.
Intraoperative Events
Intraoperative elements were more varied and included:
- 8 nerve injuries
- 7 retained foreign objects (towels, clips, instruments, etc.)
- hardware problems (for example, breaks, insufficient or wrong tool or size)
- 2 anatomic anomalies
- 5 anesthesia-related events
- 1 burn
- 11 wrong surgical sites or misidentified lesions
- 13 anatomic complications (injuries to vessel, bone, organ, etc.)
- 1 hemorrhage
To put intraoperative injuries into perspective, it is helpful to apply preventable versus unpreventable injuries. Inherent risks can include unusual anatomy, anesthesia-related incidents, wound infection and intraoperative hemorrhaging. These events should be included in the informed-consent process as potentially significant. Major functional loss dependent on the surgical target, such as aphasia, motor weakness or sensory blunting, memory loss, personality change, ataxia, voice change, visual change or loss, or hearing loss, is tailored to the patient and to the procedure so that principal risks are shared. Failure to achieve complete relief of pain or restore noooormal functionality may occur and needs to be explained. Procedures do have unforeseeable risks; patients should be counseled accordingly.
Any foreign body left inside the wound indicates an operating room system failure. Make sure that procedures for verifying correct counts in the operating room are in place in your hospital. Counts should take place before and after surgery and before closure of any incision. Whenever the count indicates a missing item, hold the surgery until the missing article is accounted for. Document that the count was correct or describe the measures taken to ensure nothing was left in the wound. Documentation becomes critical if a claim is made.
Hardware requirements should be anticipated preoperatively to assure adequate preparation. This includes a back-up plan for any unusual situation (for example, breakage or wrong size).
The Three L’s
Wrong-site surgery and location surgery usually involves one of the “three Ls”-laterality, level and lost. Examples of misidentified sites in our study included:
- Laterality-Two instances of right cranial openings for left-sided subdural hematomas; C4-5 and C5-6 nerve root decompression performed on left side instead of right side
- Level-Problems at C-5, C-6, and C-7, but postoperative spinal x-rays showed that procedures were done at C-6 through T-1, one level lower; cervical fusion at C-5 instead of C-7, a two-level misidentification
- Lost-Improper positioning of a shunt for chemotherapy resulted in seizure activity; improper placement of dorsal column stimulator, which precipitated paraplegia
Postoperative Events
Postoperative events were straightforward. They included:
- 24 instances of known risks or complications of the procedures
- 29 failed procedures
- 7 deaths attributable to the surgery, with another 15 deaths unrelated to the neurosurgical procedure
- 3 events caused by system breakdowns within the hospital or nursing care unit
- 14 surgical wound infections
From a risk management perspective, these events should have been included in the informed-consent process. If your informed-consent process does not include these possibilities, review and revise your protocol. Consider your informed consent an opportunity to advise and share risk with the patient and their family.
Never assume you will be protected from litigation and need not pursue informed consent because a situation is urgent. Never make promises regarding events over which you have little or no control. Never say you’ll “take care of the problem, and all will be okay.” Neurosurgeons are frequently called on to perform desperation surgery after a catastrophic accident when the patient’s condition is perilous. It is better to share the chances of an adverse outcome than to give family and friends false hope or undue reassurance. Provide factual details objectively but compassionately and enlist their support.
Known Risks and Complications Seen in the Study
- neurological injury caused by catastrophic accident, not by the subsequent surgical procedure
- brain damage resulting from a pre-existing condition, not from the surgical intervention
- diminished range of motion following fusion
- continued pain, unrelieved by surgery despite adequacy of the surgical correction
- partial paralysis after any spinal surgery
- loss of sensation or weakness in extremities
- aphasia or speech impediment, including recurrent laryngeal paresis or voice huskiness
- hearing loss or change
- seizure disorder arising from diseased brain, not from surgery
- unavoidable scar following surgery
- stroke during or after a brain procedure
In addition, we found four cases of sham surgery. Two of these were identified during ensuing medical work-ups, and two were found when subsequent surgery could not verify that the prior surgeries described in the operative reports had beenppeerformed.
Summary of Loss Prevention Tips
- Review your informed-consent process and revise it appropriately.
- Use educational tools when time permits.
- Conduct the informed-consent process with a family member or guardian when the patient is unable to participate.
- Develop hospital teams for better patient outcomes: Preoperative-with ER or office personnel; Intraoperative-with the surgical team; Postoperative-with the ICU and medical/surgical unit nurses.
- Familiarize hospital teams with your procedures and expectations and educate them about neurosurgery.
- Establish appropriate follow-up practices for full and complete resolution of the acute phase of treatment and for the complications or risks that may occur.
- Include the patient and/or family as an integral part of the team.
For any risk management questions or comments, call TDC Risk Management at (800) 421-2368, ext. 243.
John A. McRae, MD, serves on the TDC Board of Governors and Joan Bristow, RN, MA, is Vice President of TDC Risk Management. TDC offers malpractice insurance at a reduced rate as a benefit of AANS membership.
John A. McRae, MD, serves on the TDC Board of Governors and Joan Bristow, RN, MA, is Vice President of TDC Risk Management. TDC offers malpractice insurance at a reduced rate as a benefit of AANS membership.