Editor: I was pleased to read “Rules for Neurosurgical Medical/Legal Expert Opinion Services,” in the Spring 2004 issue of the Bulletin. The rules were well written, however there is an important element that has been overlooked. More often than not, when a case reaches the discovery phase, any number of years may have gone by, even though it was filed within the statue of limitations time frame. In fact, the average time frame for discovery and trial litigation is between five and seven years.
Neurosurgery is a medical specialty where major advances happen within the scope of cognitive knowledge yielded by basic and clinical research, surgical technique innovations, neuroimaging advances, as well as other vital technological advances. These advances can be dramatic, generate profound impact on how we treat, even revolutionize treatments and can come about with the rapidity of six, eight and 12 months. Therefore, the standard of neurosurgical care is constantly evolving and may be quite different come trial time from what it was during the historical time in which the challenged care was given.
Therefore, I would humbly suggest that the rules should read like this:
- The neurosurgical expert witness shall represent and testify as to the practice behavior of a prudent neurological surgeon giving different viewpoints if such there are and which existed and were entertained during the historical period of time in which the practice behavior took place in consonance with the core neurosurgical knowledge, technological advances and ancillary resources available then.
- The neurosurgical expert witness shall recognize and correctly represent the prevalent and accepted level of neurosurgical care or accepted care guidelines in the national neurosurgical community during the historical period of time in which the care of the case at hand was delivered and shall with reasonable accuracy state whether a particular action was clearly within, clearly outside of, or close to the margins of the prevalent and accepted level of neurosurgical care or accepted guidelines during that historical time period.
I believe that we should use more cogent and less compromising terms such as “national neurosurgical prevalent level of care” or “acceptable treatment guidelines,” specifically when it reflects more accurately the reality of neurosurgical care and always keeps in mind that you specify what the level of care or treatment guidelines were during the period of time in question, since it may have varied by the time the expert is deposed or interrogated in trial.
– Modesto Fontanez, MD, JD, Toledo, Ohio
The AANS Expert Witness Testimony guidelines are available at www.AANS.org/about/membership/ExpWitness 03Dec04.pdf. Find the referenced article at www.AANS.org, article ID 21843.
Editor: Your comments [on neurosurgery’s medical liability reform campaign in the Spring 2004 issue of the Bulletin] were quite interesting, however they still didn’t address some of the issues confronting us.
First, there is a lack of unity, which exists not only amongst us and other high-profile specialties, but also amongst our medical colleagues who only have to pay $5,000 a year for their liability insurance premiums.
Another issue is that big awards are not necessarily the main problem. Of the insurance premiums we pay, approximately 60 percent goes to our own defense lawyers. The obvious reason is that 90 percent of medical liability lawsuits are frivolous, but it sometimes takes two to three years to defend the suit until its disposal. Further, every year there are approximately 4,000 new law school graduates getting into the market, and the way they can make money is to create lawsuits.
Finally, attorneys tell me that if the U.S. Congress eventually passes tort reform and places a cap on pain and suffering, every state still has to ratify that. I was under the impression that the federal law superseded any local law.
In our own state of New Jersey there were approximately 95 neurosurgeons 10 years ago, and there are now 75. One of the insurance companies almost went broke and the other, Princeton, stopped reissuing any contracts other than $1 million and $3 million coverage. I personally had a big fight with them because in 33 years I haven’t had any settlement or judgment against me. Eventually they agreed to give me $2 million and $4 million coverage. If it weren’t for the hospital subsidy covering the emergency room, it would have been very difficult for me to stay in practice.
I believe we have excellent representation in Washington, D.C. Full-page newspaper advertisements, the interactive Web-site and satellite conferences are extremely important and very effective, and I also believe that placing brochures in our offices for the patients to read is extremely important and we should continue to do this. Each of the 230,000 medical specialists nationwide should contribute $1,000 to fight the medical liability crisis. However, I don’t think that we have been aggressive enough. I think we should combat this issue on a nationwide basis with a strike. Maybe then legislators will do something about this problem.
– David A. Yazdan, MD, FACS, Brick, N.J.
The Spring 2004 and past issues of the Bulletin are available at www.AANS.org/bulletin. Find the referenced column using article ID 21841.