Damned if you monitor, damned if you don’t: medical malpractice and intraoperative neuromonitoring for spinal surgery

Abstract

OBJECTIVEThe aim of this study was to identify trends in medical malpractice litigation related to intraoperative neuromonitoring.METHODSThe Westlaw Edge legal research service was queried for malpractice litigation related to neuromonitoring in spine surgery. Cases were reviewed to determine if the plaintiff’s assertion of negligence was due to either failure to use neuromonitoring or negligent monitoring. Comparative statistics and a detailed qualitative analysis of the resulting cases were performed.RESULTSTwenty-six cases related to neuromonitoring were identified. Spinal fusion was the procedure in question in all cases, and defendants were nearly evenly divided between orthopedic surgeons and neurosurgeons. Defense verdicts were most common (54%), followed by settlements (27%) and plaintiff verdicts (19%). Settlements resulted in a mean $7,575,000 damage award, while plaintiff verdicts resulted in a mean $4,180,213 damage award. The basis for litigation was failure to monitor in 54% of the cases and negligent monitoring in 46%. There were no significant differences in case outcomes between the two allegations of negligence.CONCLUSIONSThe use and interpretation of intraoperative neuromonitoring findings can be the basis for a medical malpractice litigation. Spine surgeons can face malpractice risks by not monitoring when required by the standard of care and by interpreting or reacting to neuromonitoring findings inappropriately.

Why are spine surgeons sued, and with what outcomes?

“…Epstein [8] Surg [15] Eur Spine J 2012 [13] Sankey [17] Neurosurg Focus 2020 Hatef [11] Neurosurg Focus 2020…”

“…failure to appropriately respond/treat significant changes) [Tables 1-3]. [11] Of interest, clinical outcomes were similar for both groups. e 19% plaintiffs' verdicts (54% for failure to monitor, and 46% for negligent monitoring) resulted in an average $4.2 M awards, while the 27% settlements averaged substantially higher at $7.58 M; notably, there were 54% defense verdicts [Tables 2 and 3].…”

“…[14] Less Severe Neurological Deficits Correlated with More Defense Verdicts More defense verdicts were observed in series where patients had less severe neurological deficits. [3,5,[9][10][11]14] In Epstein's (2011) series based on 41 of 78 quadriplegic patients, with 15 showing lesser neurological deficits, and 22 exhibiting pain alone, there were more defense verdicts (38.5%) compared with the 2010 study involving 54 quadriplegic patients (27.7%) [Table 2]. [9] e incidence of defense verdicts in the remaining 15 studies, excluding Epstein's 2 series, ranged from 39.2% to 75%, and included patients undergoing various types of spine operations, including fusions, and chiropractic manipulation [Tables 1-3].…”

“…[9] e incidence of defense verdicts in the remaining 15 studies, excluding Epstein's 2 series, ranged from 39.2% to 75%, and included patients undergoing various types of spine operations, including fusions, and chiropractic manipulation [Tables 1-3]. [3,5,11,14] Highest Mean, and Highest and Lowest Payouts for Plaintiffs' Verdicts e mean payouts for plaintiffs verdicts ranged from $0.66 Million to $5.9M [Tables 1-3]. [3,8,10] e largest mean of $5.9 M was paid to plaintiffs (i.e.…”

“…[3,5,8] e lowest range of payouts for plaintiffs verdicts was $185,000 in DePasse's 54 SEA, succeeded by $540,000 in Epstein's 2010 series. [5,8] Highest Mean, and Highest and Lowest Payouts for Settlements e highest mean payouts for settlements ranged from $7.58 M for the 26 patients in Hatef 's series undergoing spinal fusions, to $2.8 in Epstein's 2010 and $2.4 M in Epstein's 2011 studies respectively [Tables 1-3] [8,9,11] e highest range of settlement was $12 M for Epstein's 54 quadriplegic, followed by DePasse's $4.5 M (i.e. for 54 SEA).…”