Dr. Scott and Dr. Wisshoff will be talking to us about issues related to malpractice and litigation. Well, thanks very much for this invitation to talk about this. I guess it's sort of a painful topic for all of us. I get a chance to look at this in two different ways. One is I've been sued a couple of times, and I wanted to convey to you some of the experiences I've had with my own personal experience with this issue. And secondly, I do review cases that are sent to me largely to defend docs, and there are a few things I've learned about that particular side of things as well, and I wanted to go over some of this with you this afternoon. So I've been sued three times over the past few decades, and I've got one more pending, so I'm experienced. The issues that seem to turn up with some regularity in the reviews of these cases are what I want to talk about today. So let me go over a couple of these cases and talk about some of the lessons I've learned from them. I'd say several inpatients, it seemed to me it's very important to consult widely when you have an unfortunate outcome that you don't understand. Tolerate the difficult patient and the difficult family without closing the door to continuing communications with them, and get a good lawyer. I must say on this first case, I had no choice. The lawyer was provided for me by the Harvard malpractice folks, but this guy was really terrific, as I'll explain in a minute. Now here's the first case. This was a 23-year-old woman who had increasing urological dysfunction. She had had a repair of a myelomeningocele at birth and did not have a shunt in place and had had surgery. I'll cut everything short, just say that I operated on her for tethered spinal cord, and the surgery went well, but you know what happened. Five days postoperatively, she developed a CSF leak, required return to the operating room, and then she developed gram-negative meningitis, requiring two weeks of genomycin and vancomycin, which was the treatment recommended at the time. As she was just about to be discharged, she developed progressive disabling oscillopsia. She did not have a Chiari 2 malformation, which I thought might be the cause of the problem, and she had no hydrocephalus. She was also a very difficult and very angry patient at the development of this complication. She had already had two prior ones with the CSF leak and the infection, and now she's got this oscillopsia on her way out the door. So I think one of the ways to avoid a lawsuit, I would think, would be to give the patient the best possible care you can, and on this patient, I consulted everybody that I could think of to see if I could figure out what was going on with this patient. ENT, ophthalmology, neurology, and then the best clinical neurologist in the city I sent her to in hopes of finding a solution to this problem. Nobody could turn up an answer. I saw the patient frequently. I acknowledged her complaints, but then she consulted on the Internet, talked to a neurosurgeon out of state who said, I know what the problem is. It's your Chiari malformation. She didn't have a Chiari malformation, but she was operated on anyway, and she didn't get any better, naturally, after the operation. This is the interesting part. So two years later, she consulted a neurotologist at an outstanding institution in our area, and the neurotologist said, oh, I know what you have. Dr. Scott gave you too much gentamicin, and you have vestibular nerve toxicity. And I think he was right. She did have vestibular nerve toxicity. There's an interesting, and then she sued because of the inappropriate medication. I think there's a very important lesson here right away, and I've seen this many times over my career in that lawsuits are started when other physicians secondarily treating the patient comment about the quality of the prior care that's been given, whether they really know the details of the care or not. And it's very dangerous sometimes for us to comment about the care of our colleagues if we're not sure about all of the indications for the prior care. It starts a lot of lawsuits. So at the time of the trial, it was helpful to me that there was a record of the thorough evaluations that the patients had with the multiple consultations and the real efforts we made to try and sort out what the problem had, and she was definitely not abandoned. One of the wonderful courtroom moments was the behavior of my lawyer. It was a Perry Mason type deal. The patient had an expert from Canada who was an expert in infectious disease, and he testified at the trial that my use of gentamicin and vancomycin was malpractice. My lawyer had happened to research his prior testimony and found out that a month previously he had testified just the opposite in another malpractice trial. There was one of these courtroom moments, Doctor, may I refresh your memory in leafing through the records, and would you read this to the court, Doctor? And he had said just the opposite of what he had just said in testimony against me, and naturally that trial went pretty well. But the other interesting thing about this patient is she was difficult, and I don't think we liked each other very much, and she was very hard to take care of, and I think this sort of hostile atmosphere also created to the lawsuit. I don't think there was much I could do about this. She ultimately, as I mentioned here, had a great result in all respects. At the time of the trial, she had normal urinary status, and her oscillopsy had disappeared. She was able to read without any difficulty. Everyone saw her walking into the courtroom without a problem, and there was no problem with the ultimate outcome. Now this next case is another great warning case, I think. This was a 16-year-old male with headaches and a left frontal mass, and there are some little warning signs here which you may be able to pick up as I go through the case. The patient was admitted to my service on the afternoon of July 3rd. We saw the patient and said, well, July 4th tomorrow, we don't want to operate on July 4th, let's operate on July 5th. He was started on steroids and was placed in careful observation for the planned surgery. I went off over the holiday for a planned trip to our summer place on July 4th. You see what's happening here. It's a perfect storm, July 3rd, July 4th, new house officers. I incompletely handed off the patient to the covering physician who happened to be from our adult hospital across the way on this July 4th weekend. The patient began complaining of increasing headache beginning at 11 o'clock that night. The patient was seen by the resident who didn't really recognize that there was a problem here and that the increasing headache was a sign that there was something going on. He gave the patient more steroids, increased the pain medication requirement, and at 3 in the morning, the patient herniated. He was taken urgently to the operating room by the covering doctor. They took out what was a hemorrhagic anaplastic ependymoma in the frontal lobe, and the patient survived. But the problem was the patient became frontal lobe-ish and very difficult to manage. This was a big 16-year-old boy who was very difficult to manage because of his hyperactivity and his belligerent behavior. So there was a suit that resulted from this. The major complaint was that when the patient came in on that afternoon of July 3rd, I should have operated right away. So here was the outcome. The tumor came back four years later. The suit is still pending. His mother asked me to operate even though the family was suing me. What would you all do in that situation? I think this is a very interesting question because, as I mentioned to Alyssa earlier, I didn't follow my own advice in some respects later on in my career. At this point, I spoke to my lawyer, and I said, what do you think I should do? And the lawyer said, if you can operate in good conscience, I'd go ahead and do it. The mother earnestly wanted me to do the case. I said, okay, we'll operate, and we reoperated, took out the recurrence. At the trial, mother was asked why she had asked me to operate while the suit was still pending, and she told my lawyer that she trusted me to do the best for her child. You can imagine that that suit was settled, I mean, was not settled. The jury was out for a very short period of time with a favorable verdict in that case because of the mother's statement about her trust in me. This issue I mentioned Alyssa had came up again very recently in the suit that I have that's pending. I was asked to see the family again while they were suing me, and I was so upset about the suit that I didn't want to see them, and I didn't take my own advice, which I should have. But I think this is something for us all to consider. The patient did die five years later after the reoperation from metastatic disease from the original tumor. So suit avoidance here, I think despite what the literature tells us, and this has been reported in saying that when new house officers come, or July 1 comes around, this is not a danger time. There are not more complications in the operating room, et cetera. I think it is a problem. When there are new residents and ancillaries on your service, these are danger periods, and careful instructions need to be given to staff regarding these potentially very sick patients with strict adherence to communicating up the chain of command if there are any problems at all. And this has to be emphasized on everybody's service. Vacation times, attending handoffs are also fraught with hazard, particularly when they're interinstitutional. If you have a colleague who's covering your practice, and he comes from the adult hospital, that may be also a difficult and touchy issue. So I'd say think hard before cutting off communications with a family, even when they're suing you. Here is another case, this is the third case, a 16-year-old woman with a Chiari 1 malformation. This is the worst malformation I've ever had in my life. I've reported this at the ASPN meeting. This patient had uneventful surgery for a persisting headaches for a Chiari 1 malformation. Then she developed pseudomeningoceles that kept coming back and kept responding to intermittent doses of steroids. We thought she had aseptic meningitis. Her wound was re-explored on day 27, and there were gaping holes found in the previous dural graft. She had a lumbar puncture that was positive for a single colony of aspergillus. We consulted infectious disease, and I and they both thought that this culture was a contaminant, certainly had to be a contaminant in this setting, but that finding was ignored. Then the OR cultures, and you know these take a while to come back in this fungus, were positive for aspergillus, and she was started on amphotericin. Now again, I went off on summer vacation, feeling comfortable that she was under treatment with amphotericin, everything was going to go well. Then she had a spontaneous epidural hematoma. How many of you have seen spontaneous epidural hematomas occurring a couple of weeks after a posterior fossa operation? It was obvious that the aspergilli were getting into blood vessels, but she was taken care of by one of my colleagues while I was on vacation. Again, there was an incomplete handoff on that case. I didn't really go over how I thought the patient should be managed. The patient was operated on, the clot was removed, but the dural graft was left in place. When I got back, I realized what the problem was, took her back to the operating room, took out the dural graft, it was loaded with hyphae, and was a major contaminant in this, the major cause of this infection in the long run. I won't go over the subsequent cause, but she had multiple intracranial bleeds, a mycotic aneurysm, and died. So this was a perfectly healthy young woman going into this surgery, dying from this terrible infection. So if you were the parents, would you sue? You bet. If you were the doctor, would you settle? I certainly was very happy not to have this case go ultimately to trial. The case was settled for, as I recall, about $600,000, but I thought it was a terrible case. And again, you can see the patterns here. Again, over the summertime, handoffs, doctor out of town, management not completely coherent throughout the entire clinical course of the patient. So I would say other common pitfalls I've observed as I've seen cases in consultation for doctors who are being sued, I think taking on extremely challenging cases early on in your career without adequate help in the operating room. I remember when I finished my residency, I thought I could do anything. I was chief resident. I had done all this stuff. No, you can't do everything when you're just starting out. You need help sometimes in very difficult cases, and when you have them, it's important to get the kind of support and help you need in the operating room. Putting off definitive surgery on potentially fast-moving problems. This I've seen repetitively with subdural empyemas, where people have treated these rather cavalierly, thinking they could wait, or when they've postponed surgery, it's been for reasons that really appear to be self-serving, like summer vacations, for example. When intraoperative complications occur, I think it's very important, no matter how stressed one is, to write contemporaneous operative notes. When the operative notes are not dictated for weeks after the procedure, and they're filled with details that sound very self-serving, I use meticulous micro-dissection and so on, and there are details that are obviously not part of the normal operative note, everyone understands the false reconstruction of the event that took place in the operating room. Excessive reliance intraoperatively on technology, particularly on image guidance systems that may go awry. We've heard that theme repeatedly throughout this meeting, at least in the breakfast seminar I was in, several of these top-notch surgeons talking about cavernous malformations mentioned episodes where the image guidance system failed to function adequately, and I think you have to think about anatomy aside from just blind reliance on technology. This has gotten a lot of people in trouble. Ordering tests without reading and acting on their interpretation, and failure to interpret imaging studies correctly and ignoring findings that have a direct bearing on the management of the patient. One case I reviewed, the patient had a medulloblastoma. The doctor operated, took the medulloblastoma out. There were obviously metastases on the initial study. Because the doctor had left more than a cubic centimeter of tumor left in place, he felt he had to go in. The radiologist said to him, there's metastases there. He said, oh no, I've got to operate. Went back in. The patient had a bad outcome. Naturally, the family sued. And failure to obtain consultations when it's clearly indicated. So the pediatric neurosurgeon, though, we all must realize that malpractice suits are the cost of doing business, and they sometimes will occur no matter how hard we try and the best we do for the patients. A suit is not necessarily a reflection of one's abilities as a physician. It's taken me a very long time to be able to be philosophical about these issues, since it's very depressing to be named in a malpractice suit. And those of you who have been named know this to be a fact. And in fact, I think the statistics are that we'll all be named in a malpractice suit over time if we practice long enough. It must also be recognized that we as a profession do a very poor job at policing ourselves. And sometimes a pattern of multiple lawsuits will be the only way to accomplish what professional societies cannot or will not do. I spent a year on the Board of Registration of Medicine in Massachusetts, and when I was on that board, I saw this happening time and time again. It was only when the doctors had had multiple malpractice suits and the issues were aired in a forum like that that someone decided to discipline them. I don't know what we do as a professional society about that, but right now we're failing our patients in many ways when there are people practicing in our profession who are not practicing to the highest standards. Well, on that note, I will stop and turn this over to Jeff. Thanks very much for the invitation.

malpractice

litigation

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communication

lawsuits