As spine malpractice verdicts reach eight figures, surgeons are becoming more cautious about patient selection, complex procedures and managing expectations, though some warn that fear of litigation can also limit access to necessary care.
Several surgeons emphasized the importance of clear communication, thorough documentation and careful risk assessment, while others pointed to rising malpractice costs and the need for stronger legal protections.
Four spine surgeons told Becker’s how the threat of litigation is influencing the cases they accept, decline or approach differently.
Ask Spine Surgeons is a weekly series of questions posed to spine surgeons around the country about clinical, business and policy issues affecting spine care. Becker’s invites all spine surgeon and specialist responses.
Next question: At what point do reimbursement cuts stop being a business problem and start changing the care you can realistically provide? What gives first?
Please send responses to Sophie Eydis at seydis@beckershealthcare.com by 5 p.m. Central time Sunday, Oct. 25.
Editor’s note: Responses have been lightly edited for clarity and length.
Question: Spine malpractice verdicts keep reaching eight figures. How has the threat of litigation changed the cases you take on, turn down or approach differently?
Issada Thongtrangan, MD. Endoscopic and Minimally Invasive Spine Surgeon at MicroSpine (Scottsdale, Ariz.): I do not think litigation should drive clinical decisions, but it has absolutely made surgeons more careful about which cases we take on and how we approach them. The cases I am most cautious about are those where the imaging does not clearly match the patient’s symptoms, the likelihood of meaningful improvement is low or expectations are unrealistic. Spine surgery can be life-changing for the right patient, but it is not a cure for every type of back or neck pain.
I am also more deliberate with complex revision cases and patients with multiple prior procedures. Those cases may still be appropriate, but they require more time upfront, reviewing prior records and imaging, confirming the pain generator, discussing alternatives and being very honest about what surgery can and cannot achieve.
For every surgical case, communication and documentation matter more than ever. I want patients to understand the diagnosis, why I am recommending or not recommending surgery, the risks, the alternatives and the realistic recovery process. At the end of the day, good patient selection, clear expectations and a strong physician-patient relationship are still the best way to protect patients and deliver good care.
David Weiner, MD. Assistant Professor of Orthopedic Surgery at MedStar Health (Columbia, Md.): The possibility of litigation should not decide whether a patient with a sound indication receives an operation. It does reinforce the need to be precise about the diagnosis, document reasonable alternatives and make sure the patient understands both the likely benefit and the limits of surgery. For especially high-risk decisions, I think a second opinion or multidisciplinary discussion can improve judgment and the quality of the consent conversation. Defensive decisions can harm patients too, particularly when fear leads surgeons to avoid people who have the greatest need.
Nolan Wessell, MD. Assistant Professor of Orthopedic Surgery at University of Colorado Anschutz School of Medicine (Aurora, Colo.): In many states, including my own state of Colorado, trial lawyers associations have lobbied hard to lift caps on noneconomic damages for malpractice suits. Oftentimes, this goes as far as placing these issues before the voters via ballot initiatives. I’ve seen cases where settlements exceed malpractice coverage limits.
Spine surgeons, and truly all members of the House of Medicine need to work collaboratively to help defeat these measures. I encourage everyone to get involved in their state medical/specialty societies. Even the simple task of paying your membership dues helps provide funding to lobby local, state and national representatives to help educate political leaders on the hidden and nonhidden costs of rising malpractice claims.
Defensive medicine increases healthcare costs, something this country cannot afford. Complications happen. Careful patient selection, showing humility and putting the patient’s needs first are your best bet against legal action.
Christian Zimmerman, MD. Spinal Neurosurgeon at St. Alphonsus Medical Group and SAHS Neuroscience Institute (Boise, Idaho): The perception of litigation in specialty medicine, primarily spinal surgery, is genuine and elemental to maintaining professionalism and outcome success. Though rare and usually based on a cataclysmic event, legal probes or state board complaints follow poorer outcomes or discordant behavioral interactions. Training biases aside, standards of care are variable yet protective for both patients and physicians. Circumspection from colleagues leads to next-level referral patterns and delivery of care to higher-acuity patients in a more appropriate, sapient and comprehensive healthcare center.
Advanced training and experience in the more complex aspects of spinal surgery, and working within its known liabilities, carry more risk exposure compared with the more straightforward practitioner who chooses not to reach beyond healthy inclusions. The mantle of comprehensive care is conditional on evaluative choices, but also on a level of confidence and an institutional substratum to manage even the most complex issues. There are, and should be, limitations to even the most compounded diagnosis, and decisions are best made with proper inquisition, analysis and respect for an individual’s circumstances.
At the Becker’s 32nd Annual Meeting: The Business and Operations of ASCs, taking place October 29-31 in Chicago, ASC leaders, surgeons and healthcare executives will explore strategies to drive growth, enhance operational performance, navigate reimbursement challenges and prepare for the future of ambulatory surgery. Apply for complimentary registration now.
