MEDICAL LEGAL IN MEDICAL LEGAL IN NEUROSURGERYNEUROSURGERY

12 December 2013

Glossary of TermsGlossary of Terms Tort lawTort law: personal injury law: personal injury law PlaintiffPlaintiff: the person bringing the lawsuit : the person bringing the lawsuit

against youagainst you DefendantDefendant: the party against whom the lawsuit : the party against whom the lawsuit

is brought (you!)is brought (you!) DiscoveryDiscovery: Pre-trial phase of a suit when both : Pre-trial phase of a suit when both

sides must disclose relevant facts, documents sides must disclose relevant facts, documents and other evidenceand other evidence

Glossary of TermsGlossary of Terms DepositionDeposition: pre-trial discovery tool in which a : pre-trial discovery tool in which a

witness is cross-examined under oath by witness is cross-examined under oath by opposing counselopposing counsel

NegligenceNegligence Defendant must be shown to have a duty to Defendant must be shown to have a duty to

the plaintiffthe plaintiff Must be proved that defendant breached the Must be proved that defendant breached the

standard of carestandard of care Must be proved that defendants breach of the Must be proved that defendants breach of the

standard of care caused the plaintiff’s standard of care caused the plaintiff’s compensable injurycompensable injury

Standard of CareStandard of Care

Medical custom – the quality of care that Medical custom – the quality of care that would be expected of a reasonable would be expected of a reasonable practitioner in similar circumstancespractitioner in similar circumstances

Standard of CareStandard of Care Establish by medical expects in the same Establish by medical expects in the same

field as the defendantfield as the defendant Practice guidelines issued by Practice guidelines issued by

professional organizationsprofessional organizations Whether or not there was breach of Whether or not there was breach of

standard of care is usually the basis of standard of care is usually the basis of the fightthe fight

Why do patients sue?Why do patients sue? There are large number of medical errors There are large number of medical errors

resulting in negligent injuryresulting in negligent injury Havard medical practice study reviewed 30,000 Havard medical practice study reviewed 30,000

hospital admissionshospital admissions Overall 7.6 negligent injuries to every 1 malpractice Overall 7.6 negligent injuries to every 1 malpractice

claimclaim Patient dissatisfaction caused by injury, Patient dissatisfaction caused by injury,

unexpected or poor outcomeunexpected or poor outcome Fueled by poor communication and Fueled by poor communication and

interpersonal skillsinterpersonal skills

Tort LawTort Law

A tort is composed of 4 elements: duty, breach, A tort is composed of 4 elements: duty, breach, causation and damage. causation and damage.

The alleged damages must also be shown to The alleged damages must also be shown to have a proximal relationship to their cause. have a proximal relationship to their cause.

A proximal relationship is essentially a common A proximal relationship is essentially a common sense limitation that courts place on the liability sense limitation that courts place on the liability of a defendant’s actions.of a defendant’s actions. to convince a court of a “chain of events” linking that to convince a court of a “chain of events” linking that

surgeon’s acts to their current maladysurgeon’s acts to their current malady

Tort Law : Tort Law : DUTYDUTY Physician has a duty to inform the patient Physician has a duty to inform the patient and and

obtain the patient’s consent.obtain the patient’s consent. Courts apply a professional practice standard to Courts apply a professional practice standard to

the physician’s duty. the physician’s duty. Here the duty to disclose information to the Here the duty to disclose information to the

patient is based on what a reasonable medical patient is based on what a reasonable medical practitioner would provide under similar practitioner would provide under similar circumstances.circumstances.

Tort Law : Tort Law : BREACH BREACH Failure of the surgeon to fulfil the duty outlined Failure of the surgeon to fulfil the duty outlined

above creates a risk of liability.above creates a risk of liability. Accordingly, a surgeon who delegates this Accordingly, a surgeon who delegates this

responsibility to another health care provider responsibility to another health care provider runs the risk that the patient will be relying on runs the risk that the patient will be relying on information that may not have been what the information that may not have been what the surgeon intended. surgeon intended.

The law makes it clear that the duty to obtain The law makes it clear that the duty to obtain consent lies with the one doing the surgery. consent lies with the one doing the surgery.

If that responsibility is delegated, it is important If that responsibility is delegated, it is important that the surgeon know exactly what the that the surgeon know exactly what the representative will communicate to the patient.representative will communicate to the patient.

Tort Law : Tort Law : BREACH BREACH For neurosurgical residents this is an important For neurosurgical residents this is an important

point. point. If a resident is to perform a procedure alone then If a resident is to perform a procedure alone then

the resident carries the duty to obtain consent.the resident carries the duty to obtain consent. If the procedure is to be done by both resident If the procedure is to be done by both resident

and attending surgeon, either may obtain and attending surgeon, either may obtain consent.consent.

If, however, the case is to be done by the If, however, the case is to be done by the surgeon alone, the resident who obtains the surgeon alone, the resident who obtains the consent acts as the surgeon’s agent and the consent acts as the surgeon’s agent and the duty to obtain consent remains with the surgeon.duty to obtain consent remains with the surgeon.

Tort Law : Tort Law : CAUSATION CAUSATION If a patient is injured as a result of a failure on If a patient is injured as a result of a failure on

the part of the physician to disclose information the part of the physician to disclose information about a procedure, the patient may collect about a procedure, the patient may collect damages from the physician for causing the damages from the physician for causing the injury. injury.

Here the burden rests squarely on the shoulders Here the burden rests squarely on the shoulders of the plaintiff (patient). of the plaintiff (patient).

The patient must show that had he been The patient must show that had he been informed of the outcome or risk, he would not informed of the outcome or risk, he would not have consented to the procedure.have consented to the procedure.

Tort Law : Tort Law : CAUSATION CAUSATION This is often a difficult set of facts for a judge or This is often a difficult set of facts for a judge or

jury to sort out. jury to sort out. They must decide how a “reasonable person” They must decide how a “reasonable person”

under similar circumstances would have under similar circumstances would have responded with this new information—a largely responded with this new information—a largely subjective tasksubjective task..

Tort Law : Tort Law : DAMAGES DAMAGES With regard to the injury incurred as a result of With regard to the injury incurred as a result of

the lack of information, the plaintiff must show the lack of information, the plaintiff must show that he is worse off in financially measurable that he is worse off in financially measurable terms than if the procedure had not been terms than if the procedure had not been performed.performed.

The responsibility for determining this amount The responsibility for determining this amount lies with the judge or jury (aided by expert lies with the judge or jury (aided by expert witness testimony from the plaintiff). witness testimony from the plaintiff). For example, money may be awarded for pain For example, money may be awarded for pain

and suffering, lost wages, and physical, and suffering, lost wages, and physical, emotional, or psychological defects.emotional, or psychological defects.

The Legal ProcessThe Legal Process Difference between civil vs criminal suitDifference between civil vs criminal suit

Preponderance of evidence (more likely than not) vs. Preponderance of evidence (more likely than not) vs. reasonable doubtreasonable doubt

In Malaysia, any medical malpractice action must be In Malaysia, any medical malpractice action must be brought within 3 years from the act or omission brought within 3 years from the act or omission complained of or from the end of a continuous complained of or from the end of a continuous treatment during which the or omission took place.treatment during which the or omission took place.

Different for childrenDifferent for children The process begins with filling a complaint in state The process begins with filling a complaint in state

court and serving notice on the defendants being sued. court and serving notice on the defendants being sued. The defendants thereafter file a responsive pleading, The defendants thereafter file a responsive pleading,

which answers the allegations in the original petition.which answers the allegations in the original petition.

The Legal ProcessThe Legal Process At the time of filling a complaint or within 90 At the time of filling a complaint or within 90

days thereafter, a claimant generally must file a days thereafter, a claimant generally must file a certificate which indicates that the claimant’s certificate which indicates that the claimant’s attorney has consulted with an expert on the attorney has consulted with an expert on the case or, in the alternative, that such a case or, in the alternative, that such a consultation could not be obtained.consultation could not be obtained.

Malaysia does not limit the amount of damage Malaysia does not limit the amount of damage recoverable in medical malpractice actions.recoverable in medical malpractice actions.

Compliant Legal notification

Expert witness reviews case

Defence attorney

Discovery

Settle

Deposition

VerdictTrial

Settle

CompensationNegligent

Compensatory Damages Compensatory Damages

(Actual)(Actual) Compensatory damages provide a plaintiff with Compensatory damages provide a plaintiff with

the monetary amount necessary to replace the monetary amount necessary to replace what was lost, and nothing morewhat was lost, and nothing more

Medical and hospitalization bills incurred to Medical and hospitalization bills incurred to treat your injuriestreat your injuries

Wages lost due to work missed while you Wages lost due to work missed while you recuperaterecuperate

Costs of household or nursing help during Costs of household or nursing help during recovery including costs of wheelchair or recovery including costs of wheelchair or crutches required. crutches required.

Compensatory Damages Compensatory Damages

(General)(General) Pain and suffering endured due to injuries and Pain and suffering endured due to injuries and

any subsequent mental anguishany subsequent mental anguish Disfigurement resulting from injuriesDisfigurement resulting from injuries Value of medical expenses you are likely to Value of medical expenses you are likely to

incur in the futureincur in the future Value of wages you are likely to lose in the Value of wages you are likely to lose in the

futurefuture Permanency of injury and resulting pain and Permanency of injury and resulting pain and

sufferingsuffering Loss of consortium (Benefits of a relationship)Loss of consortium (Benefits of a relationship) Loss of opportunityLoss of opportunity

Punitive DamagesPunitive Damages In addition to compensatory damages, punitive In addition to compensatory damages, punitive

damages may be awarded in certain cases.damages may be awarded in certain cases. Punitive damages are not based on actual Punitive damages are not based on actual

injuries sustained.injuries sustained. Rather they are a way to punish the defendant Rather they are a way to punish the defendant

for intentional conduct or gross negligence- for intentional conduct or gross negligence- behavior that is so awful that a civil court behavior that is so awful that a civil court penalty is warranted in order to deter the penalty is warranted in order to deter the defendant from committing the same act again defendant from committing the same act again in the future.in the future.

Recent publications Recent publications in neurosurgical in neurosurgical malpracticemalpractice

RESULTS:RESULTS: In a third of the cases, complete malpractice was In a third of the cases, complete malpractice was

identified. identified. They were one fifth of the cases being penal, and They were one fifth of the cases being penal, and

four fifths with compensation. four fifths with compensation. Indemnity quantities range from 60,000 to Indemnity quantities range from 60,000 to

600,000euro. 600,000euro. Deficiency of information or consent was noted in Deficiency of information or consent was noted in

17% of lawsuits. 62.5% of operations in our sample 17% of lawsuits. 62.5% of operations in our sample were on the anatomic region of the were on the anatomic region of the vertebral vertebral columncolumn followed in frequency by the cranial region  followed in frequency by the cranial region with 28.6%. with 28.6%.

Consequences of Consequences of surgical proceduresurgical procedure included major  included major permanent sequelae in 40% of the cases and death permanent sequelae in 40% of the cases and death in 22%. in 22%. 

CONCLUSIONSCONCLUSIONS: : It is wise to It is wise to invest time to dealinvest time to deal with patients with patients, ,

including the verbal including the verbal informed consentinformed consent, which must , which must be confirmed by the written informed consent form. be confirmed by the written informed consent form.

It is also important to leave a It is also important to leave a written proofwritten proof of of medical practice, both related to surgical records medical practice, both related to surgical records and to diagnosis and follow-up of the patient. and to diagnosis and follow-up of the patient.

Procedures with a lower life-threatening risk should Procedures with a lower life-threatening risk should not be underestimated, since they comprise the not be underestimated, since they comprise the greatest demanded group. greatest demanded group.

The greatest amount of demands is related to The greatest amount of demands is related to economic reimbursement, especially in economic reimbursement, especially in private private practicepractice..

The cost of medical tort alone increased 900% The cost of medical tort alone increased 900% from $12/per person in 1950 to $1000/person in from $12/per person in 1950 to $1000/person in 2002. 2002.

It probably is safe to assume that few It probably is safe to assume that few neurosurgeons will escape malpractice litigation neurosurgeons will escape malpractice litigation during the course of their career.during the course of their career.

In 2005, malpractice claims cost neurosurgeons In 2005, malpractice claims cost neurosurgeons $28 million.$28 million.

Neurosurgeons also had the highest payment Neurosurgeons also had the highest payment per specialist surgeon ($465,000) and the per specialist surgeon ($465,000) and the highest payment of any claim in any specialty highest payment of any claim in any specialty ($5.6 million). ($5.6 million).

Consequently, malpractice insurance can Consequently, malpractice insurance can represent a considerable financial burden with represent a considerable financial burden with premiums ranging from $100,000 to $300,000 premiums ranging from $100,000 to $300,000 annually. annually.

Young neurosurgeons, who may easily have Young neurosurgeons, who may easily have already incurred $200,000 in student loans for already incurred $200,000 in student loans for medical school, may find the addition of medical school, may find the addition of malpractice premiums to their debt load malpractice premiums to their debt load particularly discouraging.particularly discouraging.

The results of a nationwide survey of The results of a nationwide survey of neurosurgeons conducted in 2002 suggested neurosurgeons conducted in 2002 suggested that malpractice premiums also had the potential that malpractice premiums also had the potential to decrease access to neurosurgical care: to decrease access to neurosurgical care: 43% of respondents reported that they were 43% of respondents reported that they were

considering considering limiting the scopelimiting the scope of their practice by no of their practice by no longer performing high-risk surgery, specifically brain longer performing high-risk surgery, specifically brain surgery. surgery.

About 20% of respondents had considered About 20% of respondents had considered relocatingrelocating to states with less troublesome malpractice to states with less troublesome malpractice conditions, and almost a third were considering conditions, and almost a third were considering early early retirementretirement in response to the malpractice crisis. in response to the malpractice crisis.

In contrast, however, a more recent survey In contrast, however, a more recent survey found that the number of found that the number of neurosurgeons/100,000 population increased neurosurgeons/100,000 population increased with the severity of malpractice conditionswith the severity of malpractice conditions

Trauma casesTrauma cases are often associated with are often associated with poor poor outcomesoutcomes, which can lead to malpractice suits. , which can lead to malpractice suits.

The 2002 survey also suggested that fewer The 2002 survey also suggested that fewer neurosurgeons were providing ER coverage in neurosurgeons were providing ER coverage in response to such liability concerns.response to such liability concerns.

Patient safety concerns also encourage Patient safety concerns also encourage malpractice suits. malpractice suits.

If neurosurgical care is unavailable, trauma If neurosurgical care is unavailable, trauma patients must be diverted to other facilities at the patients must be diverted to other facilities at the cost of critical life-saving time. cost of critical life-saving time.

In 2004, 66% of 4444 hospitals surveyed In 2004, 66% of 4444 hospitals surveyed reported inadequate on-call specialist coverage. reported inadequate on-call specialist coverage.

Neurosurgeons were accused of contributing to Neurosurgeons were accused of contributing to this shortage by not taking ER call and by not this shortage by not taking ER call and by not accepting emergency referrals. accepting emergency referrals.

In 2003 the Accreditation Council for Graduate In 2003 the Accreditation Council for Graduate Medical Education (ACGME) restricted the Medical Education (ACGME) restricted the resident work week to 80 hours in response to resident work week to 80 hours in response to safety concerns, an initiative with major safety concerns, an initiative with major implications for resident training. implications for resident training.

The impact of patient safety on neurosurgical The impact of patient safety on neurosurgical practice has perhaps been even greater in practice has perhaps been even greater in Europe, where such concerns have motivated a Europe, where such concerns have motivated a 48-hour resident work week48-hour resident work week..

Another result of the medical malpractice crisis Another result of the medical malpractice crisis is that many neurosurgeons feel obligated to is that many neurosurgeons feel obligated to practice so-called practice so-called defensive medicinedefensive medicine because because failure to diagnose is the basis of many claims.failure to diagnose is the basis of many claims.

Additional testsAdditional tests such as cervical computed such as cervical computed tomographic scans for patients who have been tomographic scans for patients who have been in minor car crashes are ordered to demonstrate in minor car crashes are ordered to demonstrate that the that the standard of care has been metstandard of care has been met or to or to reduce the likelihood of adverse but improbable reduce the likelihood of adverse but improbable outcomes that could motivate a patient to file a outcomes that could motivate a patient to file a malpractice claim.malpractice claim.

The practice of The practice of defensive medicinedefensive medicine is a real is a real contributor to escalating contributor to escalating health care costshealth care costs..

Meticulous documentationMeticulous documentation in the form of in the form of informed consentinformed consent, , medical recordsmedical records and and open open patient communicationpatient communication remain a remain a neurosurgeon’s best protection against neurosurgeon’s best protection against malpractice claimsmalpractice claims

In France, although neurosurgery’s casualty In France, although neurosurgery’s casualty rate (6%) is lower than in other specialties, the rate (6%) is lower than in other specialties, the number of legal prosecutions has increased number of legal prosecutions has increased since 2002 because of easier access to since 2002 because of easier access to medicolegal procedures.medicolegal procedures.

In order to avoid patients’ resorting to the law In order to avoid patients’ resorting to the law courts, it becomes necessary to clearly identify courts, it becomes necessary to clearly identify the risk factorsthe risk factors

Is Neurosurgical Risk Avoidable?Is Neurosurgical Risk Avoidable? Zero risk does not existZero risk does not exist. . Nowadays, neurosurgical literature reports a greater Nowadays, neurosurgical literature reports a greater

awareness of neurosurgeons regarding risk and awareness of neurosurgeons regarding risk and noncompliant practices (malpractices), whilst noncompliant practices (malpractices), whilst medicolegal studies such as this work have been medicolegal studies such as this work have been published in several European countries and North published in several European countries and North America. America.

Thus, the analysis of this independent casuistry Thus, the analysis of this independent casuistry adds French data to existing literature, and adds French data to existing literature, and subsequently contributes to the improvement of subsequently contributes to the improvement of global procedures for safe care. global procedures for safe care.

In the behaviours presenting the highest In the behaviours presenting the highest medicolegal risks, it appears that several medicolegal risks, it appears that several preventive recommendationspreventive recommendations can be issued. can be issued.

Recommendations to Improve Practice and Recommendations to Improve Practice and DefenseDefense The correct implementation of these precautions The correct implementation of these precautions

needs to be demonstrated by our institutions in front needs to be demonstrated by our institutions in front of legal officers and insurers. of legal officers and insurers.

In particular, we suggest the establishment of fact In particular, we suggest the establishment of fact sheets, summarizing the details of the patient’s sheets, summarizing the details of the patient’s pathology (with a therapeutic education component pathology (with a therapeutic education component for patients), treatment, and follow-up highlighting the for patients), treatment, and follow-up highlighting the delay between clinical signs and further delay between clinical signs and further complementary exams or reoperation in the event of complementary exams or reoperation in the event of complications.complications.

Recommendations to Improve Practice and Recommendations to Improve Practice and DefenseDefense These These fact sheetsfact sheets should be should be validatedvalidated by by

learned societies and accredited by learned societies and accredited by competent authorities in order to allow for competent authorities in order to allow for nationwide circulation.nationwide circulation.

Such a Such a formal toolformal tool would help reduce the would help reduce the risk, not only of malpractice but also of doctor-risk, not only of malpractice but also of doctor-patient conflicts turning into lawsuits, and patient conflicts turning into lawsuits, and would eventually provide appropriate defense would eventually provide appropriate defense when legal action is engaged.when legal action is engaged.

Conclusion:Conclusion: Every neurosurgeon in the course of their Every neurosurgeon in the course of their

career is likely to face prosecution. career is likely to face prosecution. Some causes are definitely avoidable at no Some causes are definitely avoidable at no

cost to the hospital. cost to the hospital. Besides Besides basic preventive safety basic preventive safety

proceduresprocedures (through the use of institutional (through the use of institutional protocols and initiatives, and new measures protocols and initiatives, and new measures such as the checklist), we reiterate the such as the checklist), we reiterate the mandatory steps for a good defensemandatory steps for a good defense when when being prosecuted. being prosecuted.

Conclusion:Conclusion: The evolution of patients’ attitudes toward The evolution of patients’ attitudes toward

medical institutions observed in most medical institutions observed in most countries has forced surgeons to countries has forced surgeons to adapt adapt their practicetheir practice. .

In this context, a common action certified by In this context, a common action certified by learned societies on sustainable learned societies on sustainable health care health care qualityquality, , patient safetypatient safety, and respect of , and respect of good good practicespractices appears as the golden path to appears as the golden path to maintain a favourable legal, insurance, and maintain a favourable legal, insurance, and financial environment.financial environment.

CommentaryCommentary: : Litigation for medical liability usually does not Litigation for medical liability usually does not

originate from a technique mistake but because of a originate from a technique mistake but because of a clinician-patient relationship’s failureclinician-patient relationship’s failure..

A bad result can itself be the cause of a lawsuit, but A bad result can itself be the cause of a lawsuit, but usually theusually the combination combination of a of a poor outcomepoor outcome and and dissatisfactiondissatisfaction with the doctor, hospital, or institution with the doctor, hospital, or institution is involved.is involved.

Patients may be unhappy for many reasons, but the Patients may be unhappy for many reasons, but the most common is the feeling that the most common is the feeling that the doctor was not doctor was not interestedinterested in the patient as a in the patient as a person or human person or human being. being.

Commentary:Commentary: Comments such as, “the doctor did not speak,” “did Comments such as, “the doctor did not speak,” “did

not answer my questions,” “did not explain anything,” not answer my questions,” “did not explain anything,” “was always in a hurry,” “seemed to disgust me,” “he “was always in a hurry,” “seemed to disgust me,” “he cried,” and many others are heard too often. cried,” and many others are heard too often.

Ill treatment by nurses, secretaries, receptionists, and Ill treatment by nurses, secretaries, receptionists, and other support staff are also causes of discomfort for other support staff are also causes of discomfort for patients. patients.

Patients are more educated, consult Internet search Patients are more educated, consult Internet search engines, diseases are better advise, consult with engines, diseases are better advise, consult with several doctors, and several doctors, and reach correct conclusions.reach correct conclusions.

CommentaryCommentary: : In our opinion, medicolegal issues are In our opinion, medicolegal issues are

certainly closely related to the certainly closely related to the therapeutic therapeutic effectseffects achieved by neurosurgeons and achieved by neurosurgeons and hospitals, but they also are influenced by the hospitals, but they also are influenced by the social, economic, and cultural social, economic, and cultural environmentsenvironments of one country, which may be of one country, which may be beyond our power to control. beyond our power to control.

What we should do is to reduce the What we should do is to reduce the iatrogeniciatrogenic factors giving rise to medicolegal factors giving rise to medicolegal issue as much as we possibly can.issue as much as we possibly can.

CommentaryCommentary: : Here we share our experiences in decreasing Here we share our experiences in decreasing

the risk of being involved in medicolegal the risk of being involved in medicolegal issues and advancing patient safety:issues and advancing patient safety: Effective Effective delivery of informationdelivery of information concerning the concerning the

disease and related treatmentdisease and related treatment Harmonious Harmonious doctor-patient relationshipdoctor-patient relationship Substantial Substantial endeavors of the hospitalendeavors of the hospital

ResultsResults Four major categories of contributing factors were Four major categories of contributing factors were

found:found: 1) communication breakdown;1) communication breakdown; 2) inadequate preoperative checks; 2) inadequate preoperative checks; 3) technical factors and imaging; and 3) technical factors and imaging; and 4) human error. 4) human error.

ConclusionsConclusions This case review demonstrates that a broad range This case review demonstrates that a broad range

of events and factors can cause human errors to of events and factors can cause human errors to breach patient safeguards and lead to a WSC; breach patient safeguards and lead to a WSC; however, in essentially however, in essentially all cases the WSCs were all cases the WSCs were preventablepreventable with with strict adherencestrict adherence to to comprehensive and thorough comprehensive and thorough protocols.protocols.

Results:Results: A total of 1028 surveys were completed (31% A total of 1028 surveys were completed (31%

response rate) by neurosurgeons representing response rate) by neurosurgeons representing diverse sub-specialty practices. diverse sub-specialty practices.

Respondents engaged in defensive medicine Respondents engaged in defensive medicine practices by practices by Ordering additional imaging studies (72%), Ordering additional imaging studies (72%), Laboratory tests (67%), Laboratory tests (67%), Referring patients to consultants (66%), Referring patients to consultants (66%), Prescribing medications (40%). Prescribing medications (40%).

Malpractice premiums were considered a ‘‘major or Malpractice premiums were considered a ‘‘major or extreme’’ burden by 64% of respondents which extreme’’ burden by 64% of respondents which resulted in 45% of respondents resulted in 45% of respondents eliminating high-eliminating high-risk proceduresrisk procedures from their practice due to liability from their practice due to liability concerns.concerns.

ObjectiveObjective: To : To determine the kinds of cases and the determine the kinds of cases and the neurosurgical practice patterns associated with the neurosurgical practice patterns associated with the highest proportion of litigationhighest proportion of litigation

ResultResult:: Of the 280 cases against neurosurgeons that were Of the 280 cases against neurosurgeons that were

closed during the study period, 156 (56%) involved the closed during the study period, 156 (56%) involved the spine, 109 (39%) involved the head and/or brain, and 15 spine, 109 (39%) involved the head and/or brain, and 15 (5%) reflected miscellaneous allegations. (5%) reflected miscellaneous allegations.

Of the cases examined, 98 were closed with a total loss Of the cases examined, 98 were closed with a total loss indemnity of approximately $50 million, and 182 resulted indemnity of approximately $50 million, and 182 resulted in no indemnity payment.in no indemnity payment.

ConclusionConclusion: : A neurosurgeon’s chances of being sued for A neurosurgeon’s chances of being sued for

malpractice are not necessarily related to the malpractice are not necessarily related to the medical complexitymedical complexity of a particular case but of a particular case but rather to the rather to the types of casestypes of cases with which the with which the physician is involved. physician is involved.

Elective spinal surgeryElective spinal surgery cases constitute the cases constitute the majority of litigation. majority of litigation.

Neurosurgeons can Neurosurgeons can take stepstake steps to reduce their to reduce their vulnerability to potential litigation and to increase vulnerability to potential litigation and to increase the odds of a successful defence.the odds of a successful defence.

Cases in MalaysiaCases in Malaysia

Was Dr. Suhaila negligent in failing to make a diagnosis of Was Dr. Suhaila negligent in failing to make a diagnosis of SAH when deceased presented herself at Kepala Batas SAH when deceased presented herself at Kepala Batas hospital and was examined by her at 2.15 p.m. on 10.10.2006? hospital and was examined by her at 2.15 p.m. on 10.10.2006?

Was there any indication to do a CT Scan earlier than 4.30 Was there any indication to do a CT Scan earlier than 4.30 p.m. on 10.10.2006 before deceased's GCS score dropped to p.m. on 10.10.2006 before deceased's GCS score dropped to 8/15 with asymmetrical pupils? 8/15 with asymmetrical pupils?

Whether there was any delay in sending deceased to Whether there was any delay in sending deceased to Seberang Jaya hospital and to the Penang hospital? Seberang Jaya hospital and to the Penang hospital?

Whether in evaluating the evidence of both experts SP2 and Whether in evaluating the evidence of both experts SP2 and SD8, which are apparently conflicting, which body of opinion SD8, which are apparently conflicting, which body of opinion that the Court would prefer. that the Court would prefer.

Cases in MalaysiaCases in Malaysia

The Plaintiff's CaseThe Plaintiff's Case The plaintiff's contention is that his condition The plaintiff's contention is that his condition

had worsened after the 'Spinal had worsened after the 'Spinal Decompression and Disectomy L1 L2' Decompression and Disectomy L1 L2' operation was carried out on 20 June 2000.operation was carried out on 20 June 2000.

Cases in MalaysiaCases in Malaysia

This is a case of medical negligence alleged by the This is a case of medical negligence alleged by the plaintiff against his orthopaedic surgeon (1st plaintiff against his orthopaedic surgeon (1st defendant) who operated on him, twice, at a hospital defendant) who operated on him, twice, at a hospital runs by the Sarawak Medical Centre Sdn Bhd (2nd runs by the Sarawak Medical Centre Sdn Bhd (2nd defendant). defendant).

The plaintiff alleged that after the 2 operations done by The plaintiff alleged that after the 2 operations done by the 1st defendant, instead of getting better, he got the 1st defendant, instead of getting better, he got worse. worse.

From being able to walk and just suffering pain and From being able to walk and just suffering pain and numbness to his hands/arms before them, he is now numbness to his hands/arms before them, he is now on wheel chair and permanently disabled.on wheel chair and permanently disabled.

How to Prevent How to Prevent LawsuitsLawsuits

Changing clinical practice Changing clinical practice DocumentationDocumentation Doctor-patient relationshipDoctor-patient relationship Patient’s expectationPatient’s expectation Avoiding disasterAvoiding disaster

Changing clinical Changing clinical practicepractice

With great increases in the cost of health care, With great increases in the cost of health care, physicians and hospitals also face ever-physicians and hospitals also face ever-growing pressure for growing pressure for higher patient volumehigher patient volume and and lower costslower costs. .

As a result, caregivers may find As a result, caregivers may find less timeless time to to relate to patients as individuals, each one with relate to patients as individuals, each one with a unique set of a unique set of needs and complaintsneeds and complaints..

Patient alienationPatient alienation is the unavoidable result. is the unavoidable result. We are obligated We are obligated not to harmnot to harm to our patients to our patients

and to provide treatment that is of potential and to provide treatment that is of potential benefit. benefit.

The statement of ethics in Neurosurgery is The statement of ethics in Neurosurgery is needed due to raise challenges in the practice needed due to raise challenges in the practice of neurosurgery, which has the potential to of neurosurgery, which has the potential to leave patients substantially worse, or even leave patients substantially worse, or even disabled, after treatment that may have disabled, after treatment that may have achieved its surgical goal.achieved its surgical goal. GOOD MEDICAL PRACTICE—THE STANDARD GOOD MEDICAL PRACTICE—THE STANDARD

OF CAREOF CARE RELATIONSHIPS WITH PATIENTS AND FAMILY RELATIONSHIPS WITH PATIENTS AND FAMILY

MEMBERSMEMBERS

DocumentationDocumentation

DocumentationDocumentation One of the factors involved in deciding to take One of the factors involved in deciding to take

a neurosurgical claim to trial is the a neurosurgical claim to trial is the quality of quality of the documentationthe documentation..

Missing, incomplete or illegible documentation Missing, incomplete or illegible documentation can be used to imply sloppy care of the patientcan be used to imply sloppy care of the patient

If you don’t write it down, it didn’t happenIf you don’t write it down, it didn’t happen Altering the record is a sure way to loseAltering the record is a sure way to lose Informed consent needs to be more than a Informed consent needs to be more than a

signature on a formsignature on a form

Doctor-patient Doctor-patient relationshiprelationship

Doctor-patient Doctor-patient relationshiprelationship

Vincent et al surveyed 227 patients who were Vincent et al surveyed 227 patients who were engaged in legal actions against physicians engaged in legal actions against physicians and hospitalsand hospitals

The decision to take legal action was The decision to take legal action was influenced not only by the occurrence of an influenced not only by the occurrence of an injury but also by what patients perceived to be injury but also by what patients perceived to be insensitive treatmentinsensitive treatment and and poor poor communicationcommunication after the injury. after the injury.

The The sense of being wrongedsense of being wronged may also may also explain why some patients initiate complaints explain why some patients initiate complaints and legal action despite there being little or no and legal action despite there being little or no evidence of actual injuryevidence of actual injury..

Obtaining informed consent from patients Obtaining informed consent from patients contemplating neurosurgical procedures is an contemplating neurosurgical procedures is an important process in preoperative care. important process in preoperative care.

A surgeon’s failure to fulfill his or her legally A surgeon’s failure to fulfill his or her legally prescribed duty to inform the patient and obtain prescribed duty to inform the patient and obtain consent can result in unnecessary exposure to consent can result in unnecessary exposure to liability.liability.

Informed Consent: Informed Consent: Legal Legal backgroundbackground The law of informed consent is relatively new in the field of health The law of informed consent is relatively new in the field of health

law. law. The first mention in a court of law of a physician’s duty to disclose The first mention in a court of law of a physician’s duty to disclose

details and information regarding a contemplated procedure came details and information regarding a contemplated procedure came in 1957in 1957

In most cases new decisions and laws have been in response to In most cases new decisions and laws have been in response to patients’ desire to be better informed.patients’ desire to be better informed.

Lack of information that often leads to increased patient anxiety, Lack of information that often leads to increased patient anxiety, increased treatment refusal and decreased satisfactionincreased treatment refusal and decreased satisfaction

The law of informed consent is constructed from both civil law The law of informed consent is constructed from both civil law (a.k.a. tort law) and constitutional law (a.k.a. codified law).(a.k.a. tort law) and constitutional law (a.k.a. codified law).

Informed ConsentInformed Consent

Informed consent is not a document. Informed consent is not a document. It is not a waiver of patient rights nor does it shield the surgeon It is not a waiver of patient rights nor does it shield the surgeon

from potential litigation. from potential litigation. It does not have to be written. It does not have to be written. Informed consent is a process—a dialog between practitioner Informed consent is a process—a dialog between practitioner

and patient that establishes expectations for both the patient and and patient that establishes expectations for both the patient and surgeon with regard to a specific medical or surgical intervention.surgeon with regard to a specific medical or surgical intervention.

A document, no matter how detailed, is only a historical record of A document, no matter how detailed, is only a historical record of this process and cannot replace the exchange of information this process and cannot replace the exchange of information between a patient and health care provider.between a patient and health care provider.

Informed Consent: Informed Consent: DisclosureDisclosure

In addition to the conditions of the surgery and its potential complications, some courts have held that physicians must also disclose matters of personal weakness or professional credentialing inadequacies.

Informed ConsentInformed Consent Three exceptions to the elements of informed consent that Three exceptions to the elements of informed consent that

may exempt a neurosurgeon from liability: may exempt a neurosurgeon from liability: 1) 1) Medical emergenciesMedical emergencies The medical emergency exemption is based on the The medical emergency exemption is based on the

obvious tenet that delay of treatment would result in obvious tenet that delay of treatment would result in further harm to or death of the patient.further harm to or death of the patient.

2)2) Patient’s waiverPatient’s waiver Patient delegates decision-making power to the Patient delegates decision-making power to the

physician and requests not to be informed about a physician and requests not to be informed about a procedure. procedure.

3)3) Therapeutic privilegeTherapeutic privilege Information may be withheld that would cause any Information may be withheld that would cause any

counter therapeutic consequences, be they physical, counter therapeutic consequences, be they physical, psychological, or emotional.psychological, or emotional.

Patient’s Patient’s expectationexpectation

Managing ExpectationsManaging Expectations Patients with no expectation of negative Patients with no expectation of negative

outcome are likely to feel deceived if they have outcome are likely to feel deceived if they have a complicationa complication

This reinforces the need for proper informed This reinforces the need for proper informed consent regarding risks of surgeryconsent regarding risks of surgery

Avoid happy talkAvoid happy talk

Avoiding disasterAvoiding disaster

OBJECTIVE: To define and grade neurosurgical and spinal postoperative

complications occurring within 30 days of surgery based on their need for treatment.

Neurosurgical practice is considerably riskier Neurosurgical practice is considerably riskier than other surgical specialties.than other surgical specialties.

In this practice, most errors and resulting In this practice, most errors and resulting adverse events are unavoidable and should be adverse events are unavoidable and should be accepted as part of the surgical procedure. accepted as part of the surgical procedure.

The use of the grading is to eliminate any The use of the grading is to eliminate any individual tendency to downgrade or deny individual tendency to downgrade or deny complications and to avoid the use of complications and to avoid the use of nonspecific terms such as “minor” or “major” to nonspecific terms such as “minor” or “major” to characterize adverse events by using a characterize adverse events by using a systematic and stratified classified data in every systematic and stratified classified data in every neurosurgical department.neurosurgical department.

The idea of improving patient care in The idea of improving patient care in neurosurgery through learning from neurosurgery through learning from postoperative mistakes in neurosurgery is not postoperative mistakes in neurosurgery is not new. new.

In 1993, Apuzzo devoted an entire two-volume In 1993, Apuzzo devoted an entire two-volume textbook to the description of complications textbook to the description of complications resulting from neurosurgical interventions and resulting from neurosurgical interventions and their avoidance and management. their avoidance and management.

““Mastering the art of avoidance of both Mastering the art of avoidance of both intraoperative and postoperative problems is a intraoperative and postoperative problems is a key factor in operative excellence and key factor in operative excellence and optimization of outcome”optimization of outcome”

Winning and LosingWinning and Losing The key predictor of payment is often the The key predictor of payment is often the

severity of injury and the plaintiff’s degree of severity of injury and the plaintiff’s degree of disability, rather than a determination that there disability, rather than a determination that there was a breach in the standard of carewas a breach in the standard of care

Cheney et al. reported that more than 40% of Cheney et al. reported that more than 40% of patients who were provided appropriate and patients who were provided appropriate and non-negligent care still collected payments and non-negligent care still collected payments and that the severity of injury seemed to be the that the severity of injury seemed to be the factor determining compensation in these factor determining compensation in these casescases

ConclusionConclusion Safer neurosurgical practice with good doctor-patient Safer neurosurgical practice with good doctor-patient

communication is leading to fewer lawsuits overallcommunication is leading to fewer lawsuits overall These elements of duty, breach, causation and These elements of duty, breach, causation and

damage need to be fulfill in medical negligent.damage need to be fulfill in medical negligent. Unfortunately you are still likely to be sued as a Unfortunately you are still likely to be sued as a

neurosurgeonneurosurgeon In craniotomy cases, most malpractice suits involve In craniotomy cases, most malpractice suits involve

brain damage or death.brain damage or death. Nerve injury is the biggest malpractice category in Nerve injury is the biggest malpractice category in

spine surgery.spine surgery. Prevention of lawsuit include changing clinical practice, Prevention of lawsuit include changing clinical practice,

good documentation, good doctor-patient relationship good documentation, good doctor-patient relationship and communication, understanding patient’s and communication, understanding patient’s expectation and steps taken to avoid disaster.expectation and steps taken to avoid disaster.

Thank YouThank You