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R ISKM ANAGEMENT M ICHAEL A. CHABRAJA, J D, AND M ONICA W EHBY, M D
Surgeon’s Error or Jury’s Sympathy
Patient Delays Surgery With Adverse Results
When treating high-risk patients,
the uncomfortable reality is that
regardless of whether error is
involved, juries often are swayed
by severe outcomes.
In this case, the defendant neurosurgeon
had recommended surgery in June
1994. Despite having received this recommendation,
the patient elected to postpone
the surgery until after his son’s
wedding in October. The patient’s condition
deteriorated rapidly after the wedding
and somatosensory evoked potential
monitoring performed prior to surgery
failed to pick up any signals from his legs.
The defendant neurosurgeon performed
anterior cervical discectomy and fusion at
C5–6 and C6–7 on the 57-year-old patient
in October 1994 to remove two herniated
discs and treat spinal stenosis caused by
degenerative disc disease. Following surgery,
the patient was paralyzed from the chest
down. He remained a paraplegic with weakness
of his arms and hands until he died
from unrelated cancer approximately eight
years later.
The patient’s estate and his spouse sued
the neurosurgeon and the hospital for malpractice.
In addition to recovery of medical
expenses, the estate sought damages for loss
of normal life, pain and suffering and disfigurement.
The spouse sought damages
for loss of consortium and loss of services.
The patient’s expert opined at trial that
the postoperative films showed a disc fragment
remaining in the spinal canal and
pressing on the spinal cord, causing worse
compression than the preoperative magnetic
resonance images had revealed. The
defense countered that the postoperative
MR images showed that the spinal canal had
been decompressed successfully. The
defense further maintained that the patient’s
spinal cord was so severely compromised
prior to surgery that the cord could not
withstand the normal trauma of surgery
and the simple act of decompressing the
stenotic spinal cord caused a spinal stroke.
The evidence presented at trial demonstrated
that in the weeks immediately preceding
the surgery, the patient became
numb from the waist down and had to use
a wheelchair to get around. With regard to
the issue of when the surgery took place,
the defense introduced the neurosurgeon’s
notes in the medical record documenting
his discussion with the patient concerning
the risks associated with delaying surgery.
After deliberating for two days and
twice reporting that it was deadlocked, the
jury returned a verdict against the defendant
neurosurgeon and in favor of the
patient’s estate and his spouse in the
amount of $2,269,034. The bulk of this
sum, 1.5 million, was awarded to the estate
and apportioned as $750,000 for loss of
normal life, $500,000 for pain and suffering,
and $250,000 for disfigurement. The
remainder of $769,034 was awarded to the
patient’s spouse, with $517,034 allotted for
medical expenses, $150,000 for loss of consortium
and $102,000 for loss of services.
Notably, the defendant hospital had settled
out prior to trial for $400,000.
Outcome’s Severity
The fact that the jury twice reported that it
was deadlocked is evidence of its struggle to
reach a decision on liability. Although the
patient’s decision to delay his surgery may
well have resulted in further compromising
his spinal cord, the jury ultimately concluded
that this was insufficient to relieve
the defendant neurosurgeon of liability.
An argument can be made that the
defendant neurosurgeon should have documented
more clearly in his notes that he had
explained the risks of paralysis as well as the
risk of delaying surgery with the patient.
However, it is far from clear that this action
would have been outcome determinative.
The result in this case illustrates that the
risk of an adverse verdict is sometimes
directly related to the severity of the outcome
rather than to the actions taken by a
surgeon. A 2002 study conducted by
Kessler and McClellan underscores this
conclusion and demonstrates its frequency.
The study revealed that evidence of medical
negligence was found in less than 20
percent of cases in which a patient received
some form of compensation from a medical
provider and further that only one in
every 15 patients who were found to have
sustained an injury due to medical negligence
received any sort of compensation.
This evident lack of relationship
between medical liability award and medical
negligence compounds the risk of liability
for specialists treating high-risk
patients. Data maintained by medical liability
insurance provider The Doctors
Company shows that neurosurgeons frequently
sustain claims, averaging a claim
every 18 months. Thus, high-risk specialists
such as neurosurgeons are sued more often,
not because of medical negligence, but
because of the risk of the medical condition
and the severity of the adverse outcome. 3
Michael A. Chabraja, JD, is a partner with
McGuireWoods LLP in Chicago, Ill. Monica Wehby,
MD, is a neurosurgeon with Microneurosurgical
Consultants P.C. in Portland, Ore.
Suggestions By exploring closed
medical liability cases, Risk Management
aims to help neurosurgeons identify
and avoid areas of legal peril. If you
would like to see a particular topic
covered, please send your idea to
Monica Wehby, MD, Risk Management
editor, mcwehby@yahoo.com.
Volume 14, Number 4 • AANS Bulletin 39