Surgeons Error or Jurys Sympathy Patient Delays Surgery With Adverse Results

When treating high-risk patients, the uncomfortable reality is that regardless of whether error is involved, juries often are swayed by severe outcomes.

In this case, the defendant neurosurgeon had recommended surgery in June 1994. Despite having received this recommendation, the patient elected to postpone the surgery until after his son’s wedding in October. The patient’s condition deteriorated rapidly after the wedding and somatosensory evoked potential monitoring performed prior to surgery failed to pick up any signals from his legs.

The defendant neurosurgeon performed anterior cervical discectomy and fusion at C5-6 and C6-7 on the 57-year-old patient in October 1994 to remove two herniated discs and treat spinal stenosis caused by degenerative disc disease. Following surgery, the patient was paralyzed from the chest down. He remained a paraplegic with weakness of his arms and hands until he died from unrelated cancer approximately eight years later.

The patient’s estate and his spouse sued the neurosurgeon and the hospital for malpractice. In addition to recovery of medical expenses, the estate sought damages for loss of normal life, pain and suffering and disfigurement. The spouse sought damages for loss of consortium and loss of services.

The patient’s expert opined at trial that the postoperative films showed a disc fragment remaining in the spinal canal and pressing on the spinal cord, causing worse compression than the preoperative magnetic resonance images had revealed. The defense countered that the postoperative MR images showed that the spinal canal had been decompressed successfully. The defense further maintained that the patient’s spinal cord was so severely compromised prior to surgery that the cord could not withstand the normal trauma of surgery and the simple act of decompressing the stenotic spinal cord caused a spinal stroke.

The evidence presented at trial demonstrated that in the weeks immediately preceding the surgery, the patient became numb from the waist down and had to use a wheelchair to get around. With regard to the issue of when the surgery took place, the defense introduced the neurosurgeon’s notes in the medical record documenting his discussion with the patient concerning the risks associated with delaying surgery.

After deliberating for two days and twice reporting that it was deadlocked, the jury returned a verdict against the defendant neurosurgeon and in favor of the patient’s estate and his spouse in the amount of $2,269,034. The bulk of this sum, 1.5 million, was awarded to the estate and apportioned as $750,000 for loss of normal life, $500,000 for pain and suffering, and $250,000 for disfigurement. The remainder of $769,034 was awarded to the patient’s spouse, with $517,034 allotted for medical expenses, $150,000 for loss of consortium and $102,000 for loss of services. Notably, the defendant hospital had settled out prior to trial for $400,000.

Outcome’s Severity
The fact that the jury twice reported that it was deadlocked is evidence of its struggle to reach a decision on liability. Although the patient’s decision to delay his surgery may well have resulted in further compromising his spinal cord, the jury ultimately concluded that this was insufficient to relieve the defendant neurosurgeon of liability.

An argument can be made that the defendant neurosurgeon should have documented more clearly in his notes that he had explained the risks of paralysis as well as the risk of delaying surgery with the patient. However, it is far from clear that this action would have been outcome determinative.

The result in this case illustrates that the risk of an adverse verdict is sometimes directly related to the severity of the outcome rather than to the actions taken by a surgeon. A 2002 study conducted by Kessler and McClellan underscores this conclusion and demonstrates its frequency. The study revealed that evidence of medical negligence was found in less than 20 percent of cases in which a patient received some form of compensation from a medical provider and further that only one in every 15 patients who were found to have sustained an injury due to medical negligence received any sort of compensation.

This evident lack of relationship between medical liability award and medical negligence compounds the risk of liability for specialists treating high-risk patients. Data maintained by medical liability insurance provider The Doctors Company shows that neurosurgeons frequently sustain claims, averaging a claim every 18 months. Thus, high-risk specialists such as neurosurgeons are sued more often, not because of medical negligence, but because of the risk of the medical condition and the severity of the adverse outcome.

Michael A. Chabraja, JD, is a partner with McGuireWoods LLP in Chicago, Ill. Monica Wehby, MD, is a neurosurgeon with Microneurosurgical Consultants P.C. in Portland, Ore.