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Callum D. Dewar, Jason H. Boulter, Brian P. Curry, Dana M. Bowers, and Randy S. Bell

Medical malpractice suits within the military have historically been limited by the Feres Doctrine, a legal precedent arising from a Supreme Court decision in 1950, which stated that active-duty personnel cannot bring suit for malpractice against either the United States government or military healthcare providers. This precedent has increasingly become a focus of discussion and reform as multiple cases claiming malpractice have been dismissed. Recently, however, the National Defense Authorization Act of 2020 initiated the first change to this precedent by creating an administrative body with the sole purpose of evaluating and settling claims of medical malpractice within the military’s $50 billion healthcare system. This article seeks to present the legal history related to military malpractice and the Feres Doctrine as well as discuss the potential future implications that may arise as the Feres Doctrine is modified for the first time in 70 years.

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Jeffrey Hatef, Miki Katzir, Nathaniel Toop, Monica Islam, Trevor Clark, Catherine Roscoe, Safdar Khan, and Ehud Mendel

OBJECTIVE

The aim of this study was to identify trends in medical malpractice litigation related to intraoperative neuromonitoring.

METHODS

The Westlaw Edge legal research service was queried for malpractice litigation related to neuromonitoring in spine surgery. Cases were reviewed to determine if the plaintiff’s assertion of negligence was due to either failure to use neuromonitoring or negligent monitoring. Comparative statistics and a detailed qualitative analysis of the resulting cases were performed.

RESULTS

Twenty-six cases related to neuromonitoring were identified. Spinal fusion was the procedure in question in all cases, and defendants were nearly evenly divided between orthopedic surgeons and neurosurgeons. Defense verdicts were most common (54%), followed by settlements (27%) and plaintiff verdicts (19%). Settlements resulted in a mean $7,575,000 damage award, while plaintiff verdicts resulted in a mean $4,180,213 damage award. The basis for litigation was failure to monitor in 54% of the cases and negligent monitoring in 46%. There were no significant differences in case outcomes between the two allegations of negligence.

CONCLUSIONS

The use and interpretation of intraoperative neuromonitoring findings can be the basis for a medical malpractice litigation. Spine surgeons can face malpractice risks by not monitoring when required by the standard of care and by interpreting or reacting to neuromonitoring findings inappropriately.

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Oliver Y. Tang, Davis A. Hartnett, Sarah B. Hays, Sohail Syed, and Alan H. Daniels

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.

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Wouter J. Dronkers, Quirine J. M. A. Amelink, Dennis R. Buis, Marike L. D. Broekman, and Jochem K. H. Spoor

OBJECTIVE

Neurosurgery is historically seen as a high-risk medical specialty, with a large percentage of neurosurgeons facing complaints during their careers. The Dutch medicolegal system is characterized by a strong emphasis on informal mediation, which can be accompanied or followed by disciplinary actions. To determine if this system is associated with a low overall risk for medical litigation through disciplinary law, the authors conducted a review of disciplinary cases involving neurosurgeons in the Netherlands.

METHODS

The authors reviewed legal cases that had been filed against consultant neurosurgeons and neurosurgical residents under the Dutch disciplinary law for medical professions between 2009 and 2019.

RESULTS

A total of 1322 neurosurgical care–related cases from 2009 to 2019 were reviewed. Fifty-seven (4.3%) cases were filed against neurosurgeons (40 first-instance cases, 17 appeal cases). In total, 123 complaints were filed in the 40 first-instance cases. Most of these cases were related to spine surgery (62.5%), followed by cranial surgery (27.5%), peripheral nerve surgery (7.5%), and pediatric neurosurgery (2.5%). Complaints were filed in all stages of care but were mostly related to preoperative and intraoperative care.

CONCLUSIONS

The risk for medically related litigation in neurosurgery in the Netherlands through disciplinary law is low but not negligible. Although the absolute number of cases is low, spinal neurosurgery was found to be a risk factor for complaints. The relatively high number of cases that involved the sharing of information suggests that specific improvements—focusing on communication—can be made in order to lower the risk for future litigation.

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Andrew K. Chan, Michele Santacatterina, Brenton Pennicooke, Shane Shahrestani, Alexander M. Ballatori, Katie O. Orrico, John F. Burke, Geoffrey T. Manley, Phiroz E. Tarapore, Michael C. Huang, Sanjay S. Dhall, Dean Chou, Praveen V. Mummaneni, and Anthony M. DiGiorgio

OBJECTIVE

Spine surgery is especially susceptible to malpractice claims. Critics of the US medical liability system argue that it drives up costs, whereas proponents argue it deters negligence. Here, the authors study the relationship between malpractice claim density and outcomes.

METHODS

The following methods were used: 1) the National Practitioner Data Bank was used to determine the number of malpractice claims per 100 physicians, by state, between 2005 and 2010; 2) the Nationwide Inpatient Sample was queried for spinal fusion patients; and 3) the Area Resource File was queried to determine the density of physicians, by state. States were categorized into 4 quartiles regarding the frequency of malpractice claims per 100 physicians. To evaluate the association between malpractice claims and death, discharge disposition, length of stay (LOS), and total costs, an inverse-probability-weighted regression-adjustment estimator was used. The authors controlled for patient and hospital characteristics. Covariates were used to train machine learning models to predict death, discharge disposition not to home, LOS, and total costs.

RESULTS

Overall, 549,775 discharges following spinal fusions were identified, with 495,640 yielding state-level information about medical malpractice claim frequency per 100 physicians. Of these, 124,425 (25.1%), 132,613 (26.8%), 130,929 (26.4%), and 107,673 (21.7%) were from the lowest, second-lowest, second-highest, and highest quartile states, respectively, for malpractice claims per 100 physicians. Compared to the states with the fewest claims (lowest quartile), surgeries in states with the most claims (highest quartile) showed a statistically significantly higher odds of a nonhome discharge (OR 1.169, 95% CI 1.139–1.200), longer LOS (mean difference 0.304, 95% CI 0.256–0.352), and higher total charges (mean difference [log scale] 0.288, 95% CI 0.281–0.295) with no significant associations for mortality. For the machine learning models—which included medical malpractice claim density as a covariate—the areas under the curve for death and discharge disposition were 0.94 and 0.87, and the R2 values for LOS and total charge were 0.55 and 0.60, respectively.

CONCLUSIONS

Spinal fusion procedures from states with a higher frequency of malpractice claims were associated with an increased odds of nonhome discharge, longer LOS, and higher total charges. This suggests that medicolegal climate may potentially alter practice patterns for a given spine surgeon and may have important implications for medical liability reform. Machine learning models that included medical malpractice claim density as a feature were satisfactory in prediction and may be helpful for patients, surgeons, hospitals, and payers.

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Sandeep Kandregula and Bharat Guthikonda

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Ishaan Ashwini Tewarie, Alexander F. C. Hulsbergen, Victor Volovici, and Marike L. D. Broekman

Neurosurgical guidelines are fundamental for evidence-based practice and have considerably increased both in number and content over the last decades. Yet, guidelines in neurosurgery are not without limitations, as they are overwhelmingly based on low-level evidence. Such recommendations have in the past been occasionally overturned by well-designed randomized controlled trials (RCTs), demonstrating the volatility of poorly underpinned evidence. Furthermore, even RCTs in surgery come with several limitations; most notably, interventions are often insufficiently standardized and assume a homogeneous patient population, which is not always applicable to neurosurgery. Lastly, guidelines are often outdated by the time they are published and smaller fields such as neurosurgery may lack a sufficient workforce to provide regular updates. These limitations raise the question of whether it is ethical to use low-level evidence for guideline recommendations, and if so, how strictly guidelines should be adhered to from an ethical and legal perspective. This article aims to offer a critical approach to the ethical and legal status of guidelines in neurosurgery. To this aim, the authors discuss: 1) the current state of neurosurgical guidelines and the evidence they are based on; 2) the degree of implementation of these guidelines; 3) the legal status of guidelines in medical disciplinary cases; and 4) the ethical balance between confident and critical use of guidelines. Ultimately, guidelines are neither laws that should always be followed nor purely academic efforts with little practical use. Every patient is unique, and tailored treatment defined by the surgeon will ensure optimal care; guidelines play an important role in creating a solid base that can be adhered to or deviated from, depending on the situation. From a research perspective, it is inevitable to rely on weaker evidence initially in order to generate more robust evidence later, and clinician-researchers have an ethical duty to contribute to generating and improving neurosurgical guidelines.

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Sanjit Shah, George L. Yang, Diana T. Le, Christina Gerges, James M. Wright, Ann M. Parr, Joseph S. Cheng, and Laura B. Ngwenya

The Emergency Medical Treatment and Active Labor Act (EMTALA) protects patient access to emergency medical treatment regardless of insurance or socioeconomic status. A significant result of the COVID-19 pandemic has been the rapid acceleration in the adoption of telemedicine services across many facets of healthcare. However, very little literature exists regarding the use of telemedicine in the context of EMTALA. This work aimed to evaluate the potential to expand the usage of telemedicine services for neurotrauma to reduce transfer rates, minimize movement of patients across borders, and alleviate the burden on tertiary care hospitals involved in the care of patients with COVID-19 during a global pandemic. In this paper, the authors outline EMTALA provisions, provide examples of EMTALA violations involving neurosurgical care, and propose guidelines for the creation of telemedicine protocols between referring and consulting institutions.