October 1997 Bulletin

How to avoid litigation for wrong-site surgery

by Anthony T. Yeung, MD

Anthony T. Yeung, MD, is a member of the Committee on Professional Liability, which has published the Academy book, Managing Orthopaedic Malpractice Risk.

Closed-claims studies conducted by the Committee on Professional Liability and the Physicians Insurers Association of America have demonstrated that malpractice claims for spine surgery are the most expensive to defend and the most costly in indemnity payments to claimants.

Suits for operations on the wrong level or wrong-site usually result in pay-outs that average $100,000. This complication carries high costs both for defending the claim and in eventual pay-out. This is one error that can be absolutely prevented by the surgeon.

The surgeon should read his own imaging studies and take intra-operative films to confirm the proper operative level. It is easy to miss unrecognized spinal anatomy variables such as lumbarization or sacralization of an extra vertebral body. This condition compounds the chance for error when the radiologist does not account for this variable in his report. Therefore, a system should be in place to confirm the level and side, or pathology on imaging studies to the level that is to be operated. Intra-operative X-rays should clearly identify the correct operative level as well as confirm that the level corresponds to the level of pathology on the imaging study or clinical exam.

When a patient sues, it is often not only for the failure of the surgical procedure to relieve his pain, but for anger against the surgeon or his staff for not providing adequate postoperative treatment such as adequate pain medication. Anger against the surgeon is recorded in nearly all cases studied. A proper informed consent does not seem to deter a suit, but meticulous documentation of the risks and benefits greatly assists the defense position. Complications are usually successfully defended if those specific risks are mentioned and documented in the consent process. If there are combinations of devastating complications, such as death, vascular injury or infection, in addition to a nerve injury, a payout is more likely even in the presence of proper informed consent.

When a patient sues, indications for surgery are challenged in more than half of the cases studied. All phases of treatment should be well-thought-out and documented, informing the patient of your reasons for recommending a particular treatment choice. The consent process and medical record must clearly outline the reasons for surgical intervention.

Treatment protocols in spine surgery vary widely among practitioners. Each surgeon may have built-in biases depending on their training background. Surgeons should be familiar with the broad spectrum of treatment choices, indications and confirmatory tests that cause them to recommend a particular course of treatment.

By remaining your patient's advocate, the chance of a suit arising from a bad outcome or complication will be diminished.

Editor's Note: The Academy has approved an Advisory Statement on Wrong-Site Surgery. See article on wrong-site surgeries.

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