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Why Spine Care is at High Risk for Medical-Legal Suits

The Neurosurgical Vista

Neurosurgeons typically derive as much as 62% of all of their professional income from performing surgical procedures on the lumbar spine. Publications in neurosurgical journals, presentations at national and international neurosurgical meetings, and participation in organized neurosurgical symposia have been, however, relatively sparse in this area of activity. Until recent years, the subject of spine care in general (including non-surgical care) was of only minimal academic interest to neurosurgeons, as compared with their classic interest in basic lesions of the brain and spinal cord (i.e. tumors, arterio-venous malformations, etc.).  This clear discrepancy between what neurosurgeons say and what they actually do was pointed out by neurosurgeon Charles Ray in 1991 (
Ray CD: Clinical Neurosurgery as It Relates to the Lumbar Spine: What It Does versus What It Says, Neurosurgery 29:937-942, 1991).  

Many neurosurgeons today still represent that they are, merely by being neurosurgeons, qualified in all subspecialties.  This erroneous belief has led to many performing surgical procedures beyond their training and experience.  The highest number of medical malpractice cases in the United States are brought against OB/GYN physicians but  Spine Surgeons are #2 on this list.  Data published by Frazier et al. indicate that neurosurgical spine surgeons are sued 10 times more frequently than orthopedic spine surgeons.

There is no question but that neurosurgical interest in spine care has increased over the past decade. Unfortunately it has often been for the wrong reasons.  Because of the problem of escalating medical malpractice liability insurance premiums some neurosurgeons have now limited their practices to procedures considered to be "less risky" by insurance carriers (
Couldwell WT et al: Too Many? Too Few, Bulletin of the Amer. Assoc. Neurol. Surg., 12:4, Winter 2004, ppg. 7-10). 

In addition to the increasing cost of liability insurance many of the recent advances in invasive neuroradiology and radio-therapy of tumors have cut down greatly on the "classical" neurosurgical case load.  This has also led neurosurgeons in general practice to "train their sights" on spine surgery despite there being important areas (such as fusion) where they have not been trained and have not updated their education.  The sad end result of this has been an increase in poor surgical results and increased incidence of medical malpractice cases. 

 
 
The Orthopedic Vista

On the orthopedic side of spine practice the situation is different.  Many orthopedic surgeons have been involved in the surgical treatment of scoliosis and spine deformities in the past.  Because of effective treatment and prevention the incidence of patients needing scoliosis surgery has markedly declined and many have therefore turned their eyes toward the management of degenerative conditions for which they were not trained.  Because "fusion" is basically an orthopedic concept and most orthopedic spine surgeons today are focused on rigid instrumented "fusions" the "Mongo" mind-set often prevails regarding the surgical choices for a patient.  Perhaps the worst example of this mind set is the belief that if a disc is shown to be degenerated it must be fused (usually with pedicle screw fixation).  This has lead to much ill-advised surgery on patients who are not informed regarding other accepted stabilization procedures.  Of particular concern are the large numbers of patients who would have actually fared better with non-invasive care rather than any surgery.  This problem is particularly heightened when individuals with genomic spinal problems are treated, initially, with misguided rigid "fusion."  The present vista of spine "stabilization" procedures and the field of "arthroplasty" versus rigid "arthrodesis" seems to be unknown to many orthopedic surgeons who use pedicle screw fixation, as primary therapy on all patients presenting with degenerated discs. Public awareness of this situation is society's best defense.  Once again, the professional answer to this challenge is advanced subspecialty certification.

  What Can Be Done?  

 
         

There is no doubt but that the medical malpractice insurance situation  in American health care today represents a real crisis.  Average costs of medical malpractice premiums (Time magazine June 9, 2003) are a real dilemma for practicing physicians.  A significant part of the problem however reflects their poor medical care as well as other factors. 

An important part of this is better medical information, quality control and quality assurance.  The identification of reasons for failure of medical and surgical care and "pitfall prevention" seminars are essential for change.  There are today, unfortunately, few examples of this in evidence.

The advent of specialty certifying boards superimposing advanced training above basic neurosurgical and orthopedic training is now an important step forward in protecting the public interest and decreasing the number of patient problems 

Clearly the most important first step is to improve the quality of medical thinking and surgical performance.  There also needs to be reform in the legal arena.  Yes, it is true that the legal profession serves as a "safety net" for society but there has been significant abuse of the system.  Simply responding to a non-meritorious medical malpractice claim is an odious experience.  Some states have attempted to initiate tort reform.  One such effort is the Medical Injury Compensation Reform Act (MICRA) which the American Medical Association supports.  

The main problem with these efforts is that by stringently limiting the  financial penalties to the point that they only become business expenses for the transgressors there is no incentive to change consistent outrageous behavior.  There are clearly situations deserving of stiff financial penalties as a real discouragement against continued abuse.  A better approach would be for the trial loser to be responsible for all legal fees (something the trial lawyers association has fought against for years).  This, in our opinion, would represent real tort reform.

In the March 3, 2003 issue of Business Week (Woellert L: A Second Opinion On The Malpractice Plague) the following points are documented:

Caps on awards have only a moderate effect on physician malpractice premiums

Jury awards have not been "runaway."  The size of damage awards has been steady since 1991.

Mega-Awards remain small in number.  Often a small percentage of physicians are responsible for the majority of malpractice claims.

The courts are not clogged with malpractice cases.  The incidence of cases has remained stable while payouts have only moderately increased; as shown below.


Finally, it has been pointed out that we trust the jury system to impose the death penalty.  Are they not to be equally trusted to place a dollar value on the merits of a case?  Large awards often reflect jury outrage at the circumstances.  Once again, we can not expect poor behavior to change unless the consequences are meaningful..