Malpractice Litigation in Brain Tumor Surgery: A 31-Year Analysis of Causative Factors in the United States from the Westlaw Database

Neurosurgical Malpractice Litigation: A Systematic Review and Meta-Analysis

BACKGROUND

Neurosurgery has 1 of the highest risks for medical malpractice claims. We reviewed the factors associated with neurosurgical malpractice claims and litigation in the United States and reported the outcomes through a systematic review of the literature.

METHODS

We conducted a systematic review of the literature according to the Preferred Reporting Items for Systematic Reviews and Meta-Analysis guidelines using the Medline, Embase, Cochrane, PubMed, and Google Scholar databases. We sought to identify pertinent studies containing information about medical malpractice claims and outcomes involving neurosurgeons in the United States.

RESULTS

We identified 15 retrospective studies spanning from 2002 to 2023 that reviewed over 7890 malpractice claims involving practicing neurosurgeons in the United States. Disparities were evident in neurosurgical litigation, with 474 cases linked to brain-related surgeries and a larger proportion, 1926 cases, tied to spine surgeries. The most commonly filed claims were intraprocedural errors (37.4%), delayed diagnoses (32.1%), and failure to treat (28.8%). Less frequently filed claims included misdiagnosis or choice of incorrect procedure (18.4%), occurrence of death (17.3%), test misinterpretation (14.4%), failure to appropriately refer patients for evaluation/treatment (14.3%), unnecessary surgical procedures (13.3%), and lack of informed consent (8.3%). The defendant was favored in 44.3% of claims, while in 31.3% of lawsuits were dropped, 17.7% of verdicts favored the plaintiff, and 16.6% reached an out of court settlement. Only 3.5% of lawsuits found both parties liable.

CONCLUSION

Neurosurgery is a high-risk specialty with 1 of the highest rates of malpractice claims. Spine claims had a significantly higher rate of filed malpractice claims, while cranial malpractice claims were associated with higher litigation compensation. Predictably, spinal cord injuries play a crucial role in predicting litigation. Importantly, nonsurgical treatments are also a common source of liability in neurosurgical practice.

Analysis of reasons for medical malpractice litigation due to anterior cervical discectomy and fusion

Background

Anterior cervical discectomy and fusions (ACDF) are among the most common cervical spine operations, with over 137,000 surgeries performed annually. Understanding reasons underlying malpractice pertaining to ACDF may inform physicians of practices to improve delivery of patient care and mitigate malpractice. The aim of our study was to analyze the causes and outcomes for lawsuits pertaining to ACDF.

Methods

The Westlaw Edge and Verdict Search databases were queried for malpractice claims utilizing the keywords "anterior cervical discectomy and fusion" and "ACDF". Inclusion criteria was based on relevance of case grievance(s) to ACDF. Data collected included date of case hearing, plaintiff demographics, defendant specialty, verdict ruling, location of filed claim, monetary award, and sustained injuries.

Results

Fifty cases were included in this study after excluding 1933 cases. Of the 50 cases, 34 (68%) resulted in a defendant outcome, 8 (16%) resulted in a plaintiff outcome, and 8 (16%) resulted in settlement. Plaintiff verdicts resulted in an average monetary payment of $9.70 million, while settlements resulted in an average payment of $2.06 million. Reasons for litigation were divided into 10 categories, most commonly improper postoperative management (20%), hardware failure (18%), intraoperative error (14%), off-label use of implants (14%), and insufficient informed consent (12%).

Conclusions

Malpractice claims due to ACDF are associated with higher frequencies of plaintiff verdicts and higher monetary costs compared to other spinal surgery procedures. There does not appear to be supporting evidence that spinal cord neuromonitoring is mandatory for ACDF procedures from a medicolegal standpoint.

From Operating Room to Courtroom: Analyzing Malpractice Trajectories in Cranial Neurosurgery

BACKGROUND AND OBJECTIVES

Nearly all neurosurgeons in the United States will be named defendants in a malpractice claim before retirement. We perform an assessment of national malpractice trends in cranial neurosurgery to inform neurosurgeons on current outcomes, trends over time, benchmarks for malpractice coverage needs, and ways to mitigate lawsuits.

METHODS

The Westlaw Edge and LexisNexis databases were searched to identify medical malpractice cases relating to open cranial surgery between 1987 and 2023. Extracted data included date of verdict, jurisdiction, outcome, details of sustained injuries, and any associated award/settlement figures.

RESULTS

Of 1550 cases analyzed, 252 were identified as malpractice claims arising from open cranial surgery. The median settlement amount was $950 000 and the average plaintiff ruling was $2 750 000. The highest plaintiff ruling resulted in an award of $28.1 million. Linear regression revealed no significant relationship between year and defendant win (P-value = .43). After adjusting for inflation, award value increased with time (P-value = .01). The most common cranial subspecialties were tumor (67 cases, 26.6%), vascular (54 cases, 21.4%), infection (23 cases, 9.1%), and trauma (23 cases, 9.1%). Perioperative complications was the most common litigation category (96 cases, 38.1%), followed by delayed treatment (40 cases, 15.9%), failure to diagnose (38 cases, 15.1%), and incorrect choice of procedure (29 cases, 11.5%). The states with most claims were New York (40 cases, 15.9%), California (24 cases, 9.5%), Florida (21 cases, 8.3%), and Pennsylvania (20 cases, 7.9%).

CONCLUSION

Although a stable number of cases were won by neurosurgeons, an increase in award sizes was observed in the 37-year period assessed. Perioperative complications and delayed treatment/diagnosis were key drivers of malpractice claims.

Medico-Legal Implications of Video Recordings of Clinic Visits in Malpractice Claims Against Medical Providers

OBJECTIVE

Although audio-video recordings of clinic visits improve patient satisfaction and recall, the associated presumed risk of increased malpractice claims limits their use. In this study, we identified whether video recording clinic visits was associated with increases in professional liability claims.

METHODS

From 2015 to 2017, the institution's loss run was analyzed, and the rates of medical malpractice claims per physician-year were compared between physicians who used video recordings of clinic visits (V-RoCs) and those who did not. The term "users" was applied to all physicians whose mean percentage of patient visits with video recording was greater than the mean percentage for the practice overall.

RESULTS

Over three years, 15,254 patients used V-RoCs. The use of video recordings for clinic visits increased at a rate of 23% per year. No association was found between video recordings and increased malpractice claims. The rate of all claims between users and nonusers did not differ significantly (P=0.66). Of seven paid claims or lawsuits from 2000 to 2017, none were against physicians who used video recordings.

CONCLUSION

Video recording of patient-physician encounters was not associated with an increase in malpractice lawsuits. According to federal law, a patient can legally record a clinic encounter without physician consent, which has many ethical implications. Formalizing the recording process is beneficial for both parties and allows the resource to be used to its maximum potential.

Medico-legal risk of infectious disease physicians in Canada: A retrospective review

Objective

There is little known about the medico-legal risk for infectious disease specialists in Canada. The objective of this study was to identify the causes of these medico-legal risks with the goal of improving patient safety and outcomes.

Methods

A 10-year retrospective analysis of Canadian Medical Protective Association (CMPA) closed medico-legal cases from 2012 to 2021 was performed. Peer expert criticism was used to identify factors that contributed to the medico-legal cases at the provider, team, or system level, and were contrasted with the patient complaint.

Results

During the study period there were 571 infectious disease physician members of the CMPA. There were 96 patient medico-legal cases: 45 College complaints, 40 civil legal matters, and 11 hospital complaints. Ten cases were associated with severe patient harm or death. Patients were most likely to complain about perceived deficient assessments (54%), diagnostic errors (53%), inadequate monitoring or follow-up (20%), and unprofessional manner (20%). In contrast, peer experts were most critical of the areas of diagnostic assessment (20%), deficient assessment (10%), failure to perform test/intervention (8%), and failure to refer (6%).

Conclusion

While infectious disease physicians tend to have lower medico-legal risks compared to other health care providers, these risks still do exist. This descriptive study provides insights into the types of cases, presenting conditions, and patient allegations associated with their practice.

Medical malpractice and intracranial hemorrhages in the U.S.: An analysis of 121 cases over 35 years

Introduction

Though all physicians are at risk for medical malpractice litigation, those in surgical specialties, particularly neurosurgeons, are at increased risk. Because intracranial hemorrhages are a life-threatening and commonly misdiagnosed condition, the aim of this study is to identify and increase awareness of factors associated with litigation in cases of intracranial hemorrhages.

Methods

The online legal database Westlaw was utilized to query public litigation cases related to the management of intracranial hemorrhages between 1985 and 2020. Various search terms were used to identify cases, and the following variables were extracted: plaintiff demographics, defendant specialty, trial year, court type, location, reason for litigation, plaintiff medical complaints, trial outcomes, and payouts for both verdicts and settlements. Comparative analysis was performed between cases decided in favor of the plaintiff and in favor of the defendant.

Results

A total of 121 cases met inclusion criteria. The most common type of hemorrhage was subarachnoid (65.3%), and the most common cause of hemorrhage was cerebral aneurysm/vascular malformation (37.2%). Most cases were brought against a hospital or healthcare system (60.3%), followed by emergency medicine physicians (33.1%), family medicine physicians (10.7%), and neurosurgeons (6.6%). Failure to diagnose was the most common reason for litigation (84.3%). Cases most frequently resulted in verdicts favoring the defense (48.8%), followed by settlements (35.5%). Plaintiffs were found to be significantly younger in cases ruled in favor of the plaintiff than in cases ruled in favor of the defense (p = 0.014). Cases ruled in favor of the plaintiff were also significantly more likely to involve a neurologist (p = 0.029).

Conclusions

Most cases of intracranial hemorrhage resulting in malpractice litigation were classified as subarachnoid hemorrhages and caused by aneurysm/vascular malformation. Most cases were brought against hospital systems, and failure to diagnose was the most common reason for litigation. Cases resulting in verdicts in favor of the plaintiff were significantly more likely to involve younger plaintiffs and neurologists.

A 9-year analysis of medical malpractice litigations in coronary artery bypass grafting in China

BACKGROUND

The coronary artery bypass grafting (CABG) is one of the high-risk litigated medical specialties. Further elucidating the causes behind these malpractice claims can help physicians avoid patient injury. This study analyzed CABG litigations occurred in different level hospitals to outline the basic characteristics, as well as present a analysis on the medical malpractice that result in lawsuits.

METHODS

This study utilized the "China Judgments Online" database to compile litigations from 2012 to 2021 across China. 109 cases related to the CABG were included in the study, and were analyzed for demographic, patient outcomes and verdict characteristics in different levels of hospitals.

RESULTS

The median age of plaintiff patient was 62 years, the median length of stay was 25 days, and the median responsibility ratio of the litigation cases was 30%. The average proportion of responsibility of national, provincial and municipal hospitals were 29.6%, 28.4% and 39.5% respectively, and the median days after surgery to death of that were 15, 9 and 5 separately. The top 5 postoperative complications in dispute cases were: low cardiac output syndrome, postoperative hemorrhage, non-surgical site infections, surgical site infections and arrhythmia.

CONCLUSIONS

The diagnosis and treatment capabilities of coronary artery bypass grafting in different levels of hospitals in China were inconsistent, and the treatment capabilities in prefecture-level hospitals were lower than that in national hospitals. The procedural error, failure to properly monitor the patient and diagnostic errors were common in CABG litigations. Postoperative complications related to surgical injuries and insufficient basic postoperative management lead to a higher responsibility proportion.

Analysis of the Reasons for Medical Malpractice Litigation Due to Facet Injections

Introduction As the use of facet joint injections (FJI) increases, practitioners performing FJI may be at increased risk of legal liability. Malpractice claim analysis is performed by several specialties as it provides valuable insight into patient values and methods to mitigate the risk of malpractice litigation pertaining to a specific procedure or treatment. Malpractice analysis regarding FJI may provide clinicians with a better understanding of the reasons that lead to malpractice due to FJI, thereby allowing practitioners to improve the quality of care delivered to patients whilst mitigating the incidence of malpractice. The aim of our study was to analyze the reasons for malpractice litigation due to FJI by querying Westlaw and VerdictSearch, two well-established legal databases widely used in medicolegal research. Methods We queried the Westlaw Edge and VerdictSearch legal databases utilizing the terms "facet injection" and "spine". Our database queries yielded 1026 results on Westlaw Edge and 545 results on VerdictSearch. Cases were reviewed and categorized by two independent reviewers based on the grievance(s) levied by the plaintiff. Discrepancies between reviewers were resolved by a third reviewer. Inclusion criteria for case relevance were defined as a basis of litigation resting on malpractice claims filed between the years 2000-2022 directly pertaining to FJI. Additional data collected included the date of the case hearing, verdict ruling, location of filed claim, payment or settlement amount, and sustained injuries. Results Of all 1571 cases reviewed, 1568 cases were excluded due to a basis of litigation unrelated to FJI. Of the three cases pertaining to FJI, the first case involved an alleged procedural error on the part of the anesthesiologist, whereby the anesthesiologist misplaced the needle during FJI, resulting in quadriplegia due to a cervical spine infarction. The plaintiff also contended that the pre-procedural timeout was improperly conducted as the practitioner utilized iohexol as the injected contrast material despite the patient's well-documented allergy to iohexol. The jury deemed both the practitioner and hospital negligent, and a plaintiff verdict was issued. The second case was filed under a basis of litigation alleging delayed diagnosis and treatment on the part of an emergency medicine physician. The court acquitted the physician, and a defense verdict was issued. The third case was filed under a basis of litigation of alleged deviation from the standard of care on the part of the anesthesiologist, whereby the anesthesiologist performing the FJI did not use fluoroscopy. The court affirmed fluoroscopy is not dictated as the standard of care for FJI and issued a defendant verdict. Conclusion This study provides insight into the risk of medical malpractice suits brought on by facet joint injection. Our findings suggest that despite the high prevalence of facet joint injections performed annually, there is limited legal liability associated with the procedure. Nevertheless, there are certain reasons a malpractice claim may be filed due to facet injection, including gross procedural error resulting in patient paralysis, delay in treatment or diagnosis, and deviation from the established standard of care. As such, treatment decisions regarding facet joint injection should not be influenced by medicolegal concerns and remain predicated on patient care needs and standard of care.

Current Trends and Predictors of Case Outcomes for Malpractice in Colonoscopy in the United States

BACKGROUND

Over 14 million colonoscopies are performed annually, and this procedure remains the largest contributor to malpractice claims against gastroenterologists. The aim of this study was to evaluate reasons for litigation and predictors of case outcomes.

MATERIALS AND METHODS

Cases related to colonoscopy were reviewed within the Westlaw legal database. Patient demographics, reasons for litigation, case payouts, and verdicts were assessed. Multivariate regression was used to determine predictors of defendant verdicts.

RESULTS

A total of 305 cases were included from years 1980 to 2017. Average patient age was 54.9 years (range, 4 to 93) and 52.8% of patients were female. Juries returned defendant and plaintiff verdicts in 51.8% and 25.2% of cases, respectively, and median payout was $995,000. Top reasons for litigation included delay in treatment (65.9%) and diagnosis (65.6%), procedural error (44.3%), and failure to refer (25.6%). Gastroenterologists were defendants in 71% of cases, followed by primary care (32.2%) and surgeons (14.8%). Cases citing informed consent predicted defendant verdict (odds ratio, 4.05; 95% confidence interval, 1.90-9.45) while medication error predicted plaintiff verdict (odds ratio, 0.18; 95% confidence interval, 0.04-0.59). Delay in diagnosis (P=0.060) and failure to refer (P=0.074) trended toward plaintiff verdict but did not reach significance. Most represented states were New York (21.0%), California (13.4%), Pennsylvania (13.1%), Massachusetts (12.5%).

CONCLUSIONS

Malpractice related to colonoscopy remains a significant and has geographic variability. Errors related to sedation predicted plaintiff verdict and may represent a target to reduce litigation. Primary care physicians and surgeons were frequently cited codefendants, underscoring the significance of interdisciplinary care for colonoscopy.

Overturned abusive head trauma and shaken baby syndrome convictions in the United States: Prevalence, legal basis, and medical evidence

BACKGROUND

Media reports and the Innocence Network assert that wrongful Abusive Head Trauma (AHT)/Shaken Baby Syndrome (SBS) convictions pervade the United States (U.S.) criminal justice system. Yet, no empirical evaluation of overturned AHT/SBS convictions has been conducted.

OBJECTIVE

To evaluate the prevalence, legal basis, and characteristics of appellate rulings of AHT/SBS convictions.

PARTICIPANTS AND SETTING

U.S. appellate cases in a legal database, Westlaw.

METHODS

Retrospective review of AHT/SBS convictions that had appellate rulings from January 2008 through December 2018. Multiple search terms ensured all potential AHT/SBS cases were included. A mixed-methods analysis was conducted on overturned AHT/SBS convictions.

RESULTS

We identified a total of 1431 unique AHT/SBS criminal convictions that had appellate rulings since 2008. Of those, 49 convictions (3%) were overturned, and 1382 (97%) were affirmed/upheld. Of those overturned, 20 cases (1% overall) were overturned on medical evidence-related grounds. The most common themes from the medical evidence-related reversals were controversy over the AHT/SBS diagnosis (n = 12) and accidental injury mechanism (n = 11). After being overturned on appeal, upon retrial, 42% of defendants either re-plead guilty to or were convicted again of the same offense.

CONCLUSION(S)

AHT/SBS convictions are rarely overturned on medical evidence-related grounds. When overturned, medical evidence-related themes seldom reflect new scientific or clinical discoveries, but rather are alternative or differing medical opinions from those offered at the original trial. Our data tends to support the concerns of other authors regarding irresponsible communication of medical information in AHT/SBS cases.

"There's got to be a better way": Global Perspectives of Medicolegal Environment and Neurosurgical Socioeconomics

Neurosurgery is considered to have one of the greatest risks of medical malpractice claims. However, medicolegal issues in neurosurgery are often disregarded and underrated worldwide. Medical errors in the neurosurgical field can be attributed to multiple factors, including highly morbid pathologies, the technical difficulty of neurosurgical procedures, and the involvement and interaction of a multidisciplinary team in the care of neurosurgical patients. Health care providers worldwide are at risk of lawsuits, sometimes even when no deviation from the standard of care had occurred in a given case. Often, governments use additional tactics to decrease the burden on compensators and extrajudicial institutions and to decrease the court's flow of irrational litigation. Continuous amendments to health care acts and newer reforms to address these issues have materialized worldwide. In the present narrative review, we have reviewed the global perspectives of medicolegal issues, with a focus on neurosurgical discipline.

Do neurosurgeons receive more patient complaints than other physicians? Describing who is most at risk and how we can improve

OBJECTIVE

The number of unsolicited patient complaints (UPCs) about surgeons correlates with surgical complications and malpractice claims. Using a large, national patient complaint database, the authors sought to do the following: 1) compare the rates of UPCs for neurosurgeons to those for other physicians, 2) analyze the risk of UPCs with individual neurosurgeon characteristics, and 3) describe the types of UPCs made about neurosurgeons.

METHODS

Patient and family complaint reports among 36,265 physicians, including 423 neurosurgeons, 8292 other surgeons, and 27,550 nonsurgeons who practiced at 33 medical centers (22 academic and 11 regional) from January 1, 2014, to December 31, 2017, were coded with a previously validated Patient Advocacy Reporting System (PARS) algorithm.

RESULTS

Among 423 neurosurgeons, 93% were male, and most (71%) practiced in academic medical centers. Neurosurgical subspecialties included general practice (25%), spine (25%), tumor (16%), vascular (13%), functional (10%), and pediatrics (10%). Neurosurgeons had more average total UPCs per physician (8.68; 95% CI 7.68–9.67) than nonsurgeons (3.40; 95% CI 3.33–3.47) and other surgeons (5.01; 95% CI 4.85–5.17; p < 0.001). In addition, a significantly higher percentage of neurosurgeons received at least one UPC (71.6%; 95% CI 67.3%–75.9%) than did nonsurgeons (50.2%; 95% CI 49.6%–50.8%) and other surgeons (58.2%; 95% CI 57.1%–59.3%; p < 0.001). Factors most associated with increased average UPCs were younger age, measured as median medical school graduation year (1990.5 in the 0-UPC group vs 1993 in the 14+-UPC group, p = 0.009) and spine subspecialty (13.4 mean UPCs in spine vs 7.9 mean UPCs in other specialties, 95% CI 2.3–8.5, p < 0.001). No difference in complaints was seen in those who graduated from non-US versus US medical schools (p = 0.605). The most common complaint types were related to issues surrounding care and treatment, communication, and accessibility, each of which was significantly more common for neurosurgeons than other surgical specialties (p < 0.001).

CONCLUSIONS

Neurosurgeons were more likely to generate UPCs than other surgical specialties, and almost 3 out of 4 neurosurgeons (71.6%) had at least one UPC during the study period. Prior studies have shown that feedback to physicians about behavior can result in fewer UPCs. These results suggest that neurosurgeons have opportunities to reduce complaints and potentially improve the overall quality of care delivered.

An Analysis of Medical Malpractice Litigations in Coronary Artery Bypass Grafting from 1994-2019

BACKGROUND

Cardiothoracic surgery is one of the more highly litigated medical specialties, and coronary artery bypass grafting (CABG) constitutes a substantial portion of cardiothoracic surgery cases. Therefore, understanding litigations relating to CABG would be of benefit to surgeons working to uphold the standards of care that their patients seek and minimize their own legal liability. This study analyzed CABG litigations to identify predictive factors of litigation and verdict type.

METHODS

This study utilized the Westlaw legal database to compile litigations from 1994-2019 across the United States, and resulted in 307 total litigations. After individual screening, 211 litigations met the criteria for inclusion, and were analyzed for demographic, clinical, chronological, and verdict characteristics.

RESULTS

Litigations were present in 33 U.S. states, with California, New York, and Florida having the most litigations. Defendant verdicts were reached in 67.78% of litigations, followed by 20.38% of plaintiff verdicts and 11.85% of settlements. Plaintiff verdicts were associated with the incidence of myocardial infarction during hospitalization. The winter season had the most litigations (42.18%), and the most defendant verdicts (37.76%). Patient mortality occurred in 47.39% of litigations. The most common alleged reason for litigation was a procedural error (55.45%).

CONCLUSIONS

Defendant verdicts were significantly associated with an alleged reason of procedural errors, an alleged reason of a failure to monitor, and congestive heart failure present in patients. The common nature of defendant verdicts, and the significantly greater occurrence of defendant verdicts during the highly-litigated winter season, suggest that surgeons frequently satisfy the legal standard of care.

Medical Malpractice and Vestibular Schwannomas: A Nationwide Review

OBJECTIVE

Most surgeons face litigation related to the care of their patients, with specialties including neurosurgery facing a particularly high risk. Diagnosis and management of vestibular schwannomas can be challenging, potentially giving rise to medicolegal proceedings. Accordingly, a full appreciation of the medicolegal implications of treating these challenging tumors is warranted.

METHODS

A systematic search of the Westlaw Edge legal database was conducted to identify all cases of medicolegal proceedings related to the management of vestibular schwannomas. All cases identified by the search were screened in full, and relevant cases included for analysis. Variables pertaining to the nature of the case and legal outcomes were extracted.

RESULTS

A total of 38 cases were included in this analysis from 11 U.S. states. Failure to diagnose and negligent surgery were the most common allegations. Neurosurgeons were the most frequently implicated specialists followed by otolaryngologists and radiologists. A verdict was reached in 30 cases, with the jury finding in favor of the defendant(s) in most cases (n = 26, 87.0%), a proportion that increased across each decade of the study period. Damages were paid out in 11 cases, with a mean value of $1,534,446. Mean value of damages paid in verdicts in favor of the plaintiff were larger than those in settlements ($2,116,543 and $1,385,457, respectively).

CONCLUSIONS

The data presented provide a comprehensive overview of medicolegal proceedings related to the management of vestibular schwannomas. This study provides clinicians with a greater appreciation of the medicolegal implications of treating vestibular schwannomas.

A review of medical malpractice cases in congenital cardiac surgery in the Westlaw database in the United States from 1994 to 2019

BACKGROUND

Medical malpractice litigations are common for cardiac surgeons, and congenital cardiac surgeons are uniquely held accountable by patients, who are minors, and their families. Therefore, it is imperative for physicians to be cognizant of clinically effective and legally tenable practices.

METHODS

The Westlaw legal research service was utilized to collect medical malpractice litigations from 1994 to 2019 pertaining to congenital cardiac surgery, inclusive, in the United States. Court documents were manually screened, with 177 litigations satisfying criteria for inclusion. Data collection included patient demographics, verdict and litigation characteristics, and clinical data. Fisher's exact test was used to assess the significance of association.

RESULTS

Across the 177 litigations, 44% had defendant verdicts, 30% had plaintiff verdicts, and 26% had settlements. The average plaintiff award was $9,363,710, and the average settlement was $4,141,825. Patient mortality occurred in 87 cases (49.2%), and wrongful death claims were argued in 71 cases (40%). The most common reason for litigation were procedural errors (79 cases, 45%). The most frequent clinical event was cardiac arrest (95 cases, 54%). California recorded the most litigations (34 cases, 19.2%). Defendant verdicts were significantly associated with cardiac arrest, procedural errors, and permanent neurological injury (p < .05).

CONCLUSIONS

Defendant's verdicts were more common in cases with patient mortality, which had lower average plaintiff awards and settlements, since future healthcare expenses are inapplicable to this cohort. Future litigations can be minimized with an emphasis on reducing procedural errors, treating and diagnosing patients timely, and monitoring patients sufficiently.

Determinants of brain tumor malpractice litigation outcome and indemnity payments: a 29-year nationwide analysis

OBJECTIVE

Medical malpractice litigation is a significant challenge in neurosurgery, with more than 25% of a neurosurgeon’s career on average spent with an open malpractice claim. While earlier research has elucidated characteristics of litigation related to brain tumor treatment, factors impacting outcome and indemnity payment amount are incompletely understood.

METHODS

The authors identified all medical malpractice cases related to brain tumors from 1988 to 2017 in VerdictSearch, a database of 200,000 cases from all 50 states. The outcome for each case was dichotomized from the perspective of the defendant physician as favorable (defendant victory) or unfavorable (plaintiff victory or settlement). Indemnity payments were recorded for cases that resulted in settlement or plaintiff victory. Univariate regression was used to assess the association between case characteristics and case outcome as well as indemnity payment amount. Subsequently, significant variables were used to generate multivariate models for each outcome. Statistical significance was maintained at p < 0.05.

RESULTS

A total of 113 cases were analyzed, resulting most commonly in defendant (physician) victory (46.9%), followed by settlement and plaintiff victory (both 26.5%). The most common specialty of the primary defendant was neurosurgery (35.4%), and the most common allegation was improper diagnosis (59.3%). Indemnity payments totaled $191,621,392, with neurosurgical defendants accounting for $109,000,314 (56.9%). The average payments for cases with a plaintiff victory ($3,333,654) and for settlements ($3,051,832) did not significantly differ (p = 0.941). The highest rates of unfavorable outcomes were observed among radiologists (63.6%) and neurosurgeons (57.5%) (p = 0.042). On multivariate regression, severe disability was associated with a lower odds of favorable case outcome (OR 0.21, p = 0.023), while older plaintiff age (> 65 years) predicted higher odds of favorable outcome (OR 5.75, p = 0.047). For 60 cases resulting in indemnity payment, higher payments were associated on univariate analysis with neurosurgeon defendants (β-coefficient = 2.33, p = 0.017), whether the plaintiff underwent surgery (β-coefficient = 2.11, p = 0.012), and the plaintiff experiencing severe disability (β-coefficient = 4.30, p = 0.005). Following multivariate regression, only medical outcome was predictive of increased indemnity payments, including moderate disability (β-coefficient = 4.98, p = 0.007), severe disability (β-coefficient = 6.96, p = 0.001), and death (β-coefficient = 3.23, p = 0.027).

CONCLUSIONS

Neurosurgeons were the most common defendants for brain tumor malpractice litigation, averaging more than $3 million per claim paid. Older plaintiff age was associated with case outcome in favor of the physician. Additionally, medical outcome was predictive of both case outcome and indemnity payment amount.

Informed consent in neurosurgery: a systematic review

OBJECTIVE

Informed consent has served as a main principle of medical ethics and laws in the United States. The 1986 American Association of Neurological Surgeons Code of Ethics implied medicolegal liability for the failure to obtain informed consent without providing practical guidance regarding the application of informed consent to individual patient encounters in a medicolegal environment. Here, the authors aimed to identify baseline patient recall after discussions with neurosurgeons and their capacity to provide informed consent, describe the effects of interventions to improve patient comprehension, and elucidate the role of informed consent in malpractice litigation in neurosurgery. Their findings may guide neurosurgeons in discussions to properly inform patients and reduce the risk of litigation.

METHODS

A systematic review was conducted to explore informed consent within neurosurgery and its application to medicolegal liability using the PubMed, Embase, and Scopus databases. Titles and abstracts from articles identified in the search were read and selected for full-text review. Studies meeting prespecified inclusion criteria were reviewed in full and analyzed for study design, aim, population, interventions, and outcomes.

RESULTS

Of 1428 resultant articles, 21 were included in the review. Baseline patient recall was low, particularly for risks and alternatives of treatments, and even decreased over time. Cognitive impairment was noted as a factor limiting the ability to provide informed consent. Interventions incorporating a combination of modalities in informed consent discussions, a specialized consent form with points for neurosurgeons to check off upon discussion, interactive websites, question prompt lists, and illustrations were found to be effective in improving patient knowledge. Lack of informed consent was a common factor for malpractice litigation. Spine surgery was particularly prone to costly lawsuits. Payments were generally greater for plaintiff verdicts than for settlements.

CONCLUSIONS

The application of informed consent to patient encounters is an important facet of clinical practice. Neurosurgeons have a duty to provide patients with all pertinent information to allow them to make decisions about their care. The authors examined baseline patient comprehension and capacity, interventions to improve informed consent, and malpractice litigation; it appears that determining the proper capacity to provide informed consent and considering informed consent as a process that depends on the setting are important. There is room to improve the informed consent process centered on baseline patient health literacy and understanding as well as clear communication using multiple modalities.

Medical malpractice and meningiomas: an analysis of 47 cases

OBJECTIVE

Among medical practices, surgical fields, including neurosurgery, are at a high risk for medical malpractice litigation. With meningiomas contributing to 10% of the total neurosurgery litigation cases, the aim of this study was to identify demographic characteristics, reasons for litigation, and surgical complications commonly reported in these cases. This analysis serves to increase neurosurgeons’ awareness of factors associated with medical malpractice litigation.

METHODS

The online legal database Westlaw was utilized to query public litigation cases related to the medical management of meningiomas between December 1985 and May 2020. Variables extracted included the following: plaintiff and defendant demographics, litigation category, plaintiff medical complaints, and trial outcomes. The authors compared these characteristics between cases with decisions in favor of the defendant and those with decisions in favor of the plaintiff.

RESULTS

A total of 47 cases met the inclusion criteria. Failure to diagnose (68.1%) was the most common type of malpractice claim, and surgical complications (19.1%), motor weakness (33%), and financial loss (33%) were cited as the most common postoperative complaints. Individual specialties that most often required defense due to malpractice claims were radiology (21.7%) and neurosurgery (19.6%). The jury verdict was in favor of the defense in 51.1% of cases and in favor of the plaintiff in 27.7% of cases. A settlement was reached in 19.1% of cases. The mean payout for a verdict in favor of the plaintiff was $3,409,650.22, while the mean payout for settlements was $867,555.56. The greatest average payout for specialties was in neurosurgery at $3,414,400, followed by radiology at $3,192,960. Cases with a verdict in favor of the plaintiff were more likely to involve an internal medicine physician as a defendant (p = 0.007).

CONCLUSIONS

Over one-half of the cases resulted in a defendant’s verdict with failure to diagnose cited as the most common reason for litigation. Radiology and neurosurgery were the most common specialties for legal cases and also had some of the largest average payouts based on specialty. Motor weakness and financial loss were the most common plaintiff postoperative complaints. These findings may inform surgeons on active measures to take, such as increasing focus on diagnostic accuracy and reducing specific postoperative complaints, such as motor weakness, through risk management and prophylactic measures, to reduce unfavorable legal outcomes.

Malpractice and socioeconomic aspects in neurosurgery: a developing-country reality

OBJECTIVE

Neurosurgery occupies a prominent place in medical malpractice, but cases are still underreported in Brazil. This study describes the socioeconomic issues of medical malpractice in neurosurgery procedures and how they culminate in unfavorable outcomes in a developing country.

METHODS

The authors analyzed 112 neurosurgical procedures listed in the Brazilian Hospital Information System (Sistema de Informações Hospitalares do Sistema Único de Saúde [SIHSUS]) records in the DATASUS (Departamento de Informática do SUS) database between January 2008 and February 2020. Malpractice data were collected using the JusBrasil platform, with the authors searching the name of each of the 112 neurosurgical procedures plus “medical malpractice” among the jurisprudence records for January 2008 to February 2020. A simple linear regression analysis was performed using appropriate software. Analyses were considered statistically significant at p < 0.05.

RESULTS

According to DATASUS, 842,041 neurosurgical procedures were performed by the Brazilian Unified Health System between January 2008 and February 2020. The mean hospitalization cost for neurosurgical procedures was $714.06, and the average amount paid to professionals per procedure was $145.28 with variations according to the type of practice (public or private) in which they were performed, the complexity of the procedure, and the Brazilian region. The mortality rate and mean length of stay for neurosurgical procedures were 11.37% and 10.15 days, respectively. There were 79 medical malpractice lawsuits in the studied period. In these lawsuits, 26.58% of the court decisions were unfavorable to the neurosurgeons, with a mean compensation per procedure 15 times higher than the median value paid for all professionals in a neurosurgical procedure. The spine subspecialty had more lawsuits, and the brain tumor subspecialty had the most expensive compensation.

A lack of resources in public healthcare negatively impacts inpatient care. The mortality rate was 1.5 times higher in public practice than in private practice and was inversely proportional to the MTCs paid for the neurosurgical procedure. Patients with the lower educational levels associated with limited access to good medical care could reflect the lower plaintiff motivation in regions with a low gross domestic product and Human Development Index. In most cases, there is no understanding from either the patient or his family about the health-disease process, nor that there was medical malpractice committed by the physician to be sued.

CONCLUSIONS

The socioeconomic inequalities and the population’s low awareness of their rights could explain the few malpractice cases reported in Brazil. The authors recommend better decisions regarding the investments to be made in neurosurgical procedures to reduce malpractice lawsuits.