October 1995 Bulletin

A minute of malpractice

by Steven S. Fountain, MD

A retrospective review of 202 spine fusion claims was done by the Academy's Committee on Professional Liability and the Physicians Insurers Association of America Data Sharing Project.

Complications most commonly reported with spine fusions with and without instrumentation include neurological injury (nerve root, spinal cord), nonunion (failure of fixation), malunion, recurrent deformity, infection, and vascular and technical complications. Diagnoses related to the instrumented and noninstrumented fusions include kyphosis, scoliosis, spondylolisthesis, fracture dislocation, tumor, degenerative disk disease, spondylosis, spinal stenosis, and previous surgery.

Treatment of pain disorders (degenerative disk disease, spondylosis, prior surgical treatment) result in a higher incidence of claims with chronic pain complaints postoperatively. These patients tend to be angry toward the physician. Of particular interest, the largest category of patients making claims are those that did not get better after surgery. The most common thread of etiology running through this group was the distinct lack of objective physical findings on examination and a lack of correlation of objective physical findings with the level of disease found on the preoperative studies (MRI, X-ray, myelography, diskograms, etc.).

Early recognition and timely treatment of expected complications provide a strong defense. Physician denial of such result in a high incidence of claims.

Preventable complications include intraoperative X-rays to avoid wrong level of surgery and to confirm and retain foreign bodies and/or sponges, if the count is in question. Early recognition of neurological loss complications by concurrent spinal cord monitoring, with timely treatment of the same, provides a strong defense.

Early review of closed claims with pedicle screw fixation show that 31 percent of the claims result in indemnity payments. Persistence of pain postoperatively has occurred in 58 percent of the claims. To date 70 percent of the claims involve the allegation of lack of informed consent and 63 percent of all claims include the allegation of lack of approval by the Food and Drug Administration, based on a study reviewing 126 claims. Including this information in the informed consent provides a strong defense.

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