Managing complications: An illustrative case in spine surgery

B. Sonny Bal

Lawrence H. Brenner

A complication is something that every surgeon wants to avoid. However, because complications are a fact of life, the question arises whether or not a complication necessarily implies negligence on the part of the surgeon. In thus examining a complication, its occurrence, timing of detection, and the management that followed become relevant topics of inquiry.

Occurrence

As a threshold step, in analyzing the occurrence of a complication in light of potential legal liability, it is worthwhile to examine whether the surgeon was aware that the complication could occur, and if so, whether or not precautionary steps were taken to minimize the chance of the complication occurring. Awareness alone is not sufficient to immunize oneself against a complication, but awareness at least suggests that the physician was knowledgeable. Awareness can be captured in the medical record, such that the clinical indications, contraindications, and informed consent are properly analyzed and documented.

Clinical indications

The proper indications component of the analysis assesses the clinical justification for the procedure. The assumption is that the procedure is going to help the patient and that it is not done primarily to benefit the surgeon. If this assumption can be questioned, then the occurrence of a complication can be especially problematic. If in doubt about the clinical indications that justify an operation, consider obtaining a consultation or a second opinion before embarking on surgery.

Contraindications

For the contraindications analysis inquires whether or not there are any contraindications to the contemplated procedure. From the legal view, a contraindication means that the procedure should never be performed on that patient, under the given circumstances. If performed, the physician would be held responsible for any complications that follow, that bear a relationship to the underlying contraindications. For example, a myelogram may be clinically indicated in someone with a herniated disc, but if the patient has a known, severe allergy to the injected contrast material, then the myelogram would be contraindicated.

Informed consent

Theodore J. Choma

The informed consent inquiry examines how the surgeon disclosed the risks, benefits, and alternatives of the procedure to the patient. The surgeon must disclose risks that are inherent or material. Inherent risks are those that occur despite flawless execution of the operation; their finite incidence must be accepted by surgeon and patient alike. Material risks are those that impact a reasonable person’s decision whether to undergo the procedure in the first place. If a complication should occur, and the patient can show a lack of communication about the inherent and material risks of the relevant operation, the surgeon may be held liable. Furthermore, the surgeon must disclose the risks, benefits, and alternatives to surgical treatment in a way that the patient can comprehend and evaluate the options available to him or her, and decide accordingly.

Timely detection

The detection aspect of the liability analysis focuses on proper monitoring by the surgeon or others. Postoperative monitoring is designed to detect serious or irreversible injury. The mere ordering of proper patient monitoring is insufficient. Where monitoring for complications is delegated to a surrogate, that party must be supervised, directed, and trained to recognize early signs of the complications. In the detection of complications, clear communication between the surgeon and a surrogate — including nurses, assistants, and other physicians — is critical and may facilitate intervention before an injury is sustained. Timely detection is far preferable to late recognition or nonrecognition of a complication.

Management of the complication

Here, the analysis focuses on the proper clinical intervention and management to minimize further aggravation of the complication. It may be tempting to ignore complications in the hope that they will disappear. But, such an approach may lead to disastrous and irreversible outcomes. Once a complication is detected, it should be properly managed to reduce its adverse effects. Inherent complications should be anticipated with preparations made to handle them if necessary. Appropriate assistance, particularly in the event of vascular or neurological injuries, is important. Always communicate your management plans to the patient.

To summarize, the liability analysis of a complication depends on the assessment of three related but distinct areas: the occurrence of the complication; the timely detection of the complication; and the subsequent management of the complication. By recognizing the importance of these in determining liability, the orthopedic surgeon can be better prepared to avoid complications and when they do occur, handle them in a way to minimize liability risk.

What follows is an illustrative case example examining the above concepts in a situation where a patient alleged negligent conduct following a complication related to spinal surgery.

Delayed diagnosis in spine surgery

A 40-year old woman with fibromyalgia developed severe back and right leg pain over a 2-year period. After failure of conservative management, she was referred to an orthopedic surgeon who recommended microendoscopic discectomy for a lumbar disc herniation that was diagnosed after appropriate workup. Although the surgeon encountered increased intraoperative bleeding which somewhat obscured the surgical field, the operation was unremarkable and the patient was discharged home after a 1-day stay in the hospital.

The patient noticed a new sensation of numbness in the right leg with little relief of her preoperative leg discomfort. One week after surgery, she called the surgeon complaining of urinary frequency, and was advised to decrease her narcotic dose. The surgeon saw her at monthly intervals until persistent complaints finally led to a repeat MRI being performed about 4 months after surgery. This study showed persistent nerve root compression at the site of the previous decompression; the etiology was believed to be a residual or recurrent disc herniation rather than scar tissue.

An open revision posterior decompression addressed the pathology, and the patient gained at least partial resolution of her symptoms. The leg pain and numbness did not disappear entirely; the patient continued to depend on narcotics, with continuing urinary frequency and urgency. Dissatisfied, she changed surgeons, and filed a lawsuit alleging substandard care against the first surgeon.

At a later jury trial related to this allegation, the patient claimed that the defendant surgeon was unqualified to perform the endoscopic discectomy and that the procedure was experimental. It was further claimed that upon encountering bleeding, the standard of care called for prompt switching to an open surgical approach. A related claim alleged that the residual/recurrent disc herniation should have been detected earlier, so that the continuing problems of pain and urinary dysfunction might have been avoided.

The defendant surgeon countered that the hospital where he performed the operation did not require any special privileges to perform endoscopic discectomy and that he was capable and qualified of performing the operation even though he had not learned it during his residency training. The surgeon testified that he had learned the technique during a course, and had performed a limited number of similar operations prior to the one in dispute. Further, the surgeon argued that since the FDA had approved the endoscopic instruments, the procedure was not experimental, and there was no specific standard mandating conversion to an open approach upon encountering bleeding. The surgeon asserted that he had chosen to observe the patient because he believed that her complaints were related to a traction neuropraxia for which no additional studies were needed.

Risk management principles

The first tenet of risk management is the proactive attempt to minimize the occurrence of those complications that are inherent to the procedure. This may not always be possible. Once the surgeon is faced with a possible complication, the two other tenets of prudent risk management come into play, namely: timely detection of the complication, and competent and caring management of the complication. Communication with the patient throughout this process is a must, and may serve to mitigate the surgeon’s liability exposure.

The likelihood of timely detection of complications is increased if the patient is followed closely after surgery. However desirable timely detection may be, the prevailing economics of surgical practice in the United States. today unfortunately run counter to this notion. As surgeons increase practice income, they must allocate more clinic appointments to new patients. Many third-party payers bundle their reimbursement for postoperative visits into the professional fee paid for the surgical procedure itself. Thus, the surgeon who diligently follows his patients also pays an economic price for doing so. Still, perhaps the surgeon in the above illustrative scenario could have followed his patient on a weekly basis, rather than monthly when she began having complaints after surgery.

Close follow-up may not be enough though; the detection of complications is seldom easy in clinical practice. It requires a keen, inquisitive mindset that is open to the possibility that a complication has occurred; this mindset should be instilled in the entire clinic staff since staff may communicate more frequently with the patient. While it may be tempting for a surgeon to instinctively push away the complaining patients, those patients are exactly the ones that need to be drawn closer. One option is to follow “problem” patients at shorter follow-up intervals. Obtaining a consultation early on if the patient does not follow the expected pattern of recovery is another useful strategy. The surgeon in the above case example could have considered urodynamic testing, repeat MRI imaging, or urology consultation earlier in the postoperative period.

Competent management of complications will often be facilitated by acquiring as much data as possible: repeat examination of the patient, lab tests, imaging studies, and consultant’s opinions. The synthesis of this data should be shared with the patient. There may be treatment options available in the management of the complication, and enlisting the patient in these choices can mitigate liability exposure. Early and honest discussion of the prognosis in the face of an unexpected adverse event is worthwhile. As the old saying goes, “bad news rarely gets better with time.” Throughout this process, genuine expressions of concern and empathy will rarely be confused with admissions of guilt or culpability. Rather, such expressions are more likely to be viewed as the hallmarks of a concerned and diligent physician.

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine.
• Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.
• Theodore J. Choma, MD, is an associate professor and vice chairman In the Department of Orthopaedic Surgery, and director of the Missouri Spine Center, University of Missouri, Columbia, MO 65201.