A research article entitled “Damned if you monitor, damned if you don’t: Medical Malpractice and intraoperative neuromonitoring for spinal surgery” published online in the Journal of Neurosurgery in November 2020 concluded: “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.”

The authors of the study reviewed twenty-six Medical Malpractice Cases involving intraoperative neuromonitoring (“ION”) from 1997 to 2019 wherein the plaintiff’s assertion of medical negligence was due to either failure to use neuromonitoring or negligent neuromonitoring. Each of the 26 medical malpractice cases involved spinal fusion (35% of the cases involved anterior spinal fusion, 42% involved posterior spinal fusion, and 23% involved circumferential fusion surgery). The defendants were nearly evenly divided between orthopedic surgeons and neurosurgeons. The medical negligence allegation that there was a failure to monitor was made in 54% of the cases, and the allegation of negligent monitoring was made in 46% of the cases.

Cervical fusions were involved in 46% of the cases, lumbar fusions were involved in 42% of the cases, and thoracic spine fusions were involved in 27% of the cases. The cases were evenly split between single level and multilevel surgeries. The adverse outcomes in the 26 medical malpractice cases were paraplegia (42%), quadriplegia (31%), nerve root injury (19%), and hemiplegia (8%).

Of the 26 medical malpractice cases related to neuromonitoring, 54% resulted in defense verdicts, 27% were resolved by settlements, and the plaintiffs prevailed in 19% of the cases. The mean settlement amount was $7,575,000 (range: $600,000 to $28,000,000). The mean plaintiff’s verdict was $4,180,213 (range: $761,819 to $11,716,118). There were no significant differences in case outcomes between negligent failure to monitor and negligent monitoring cases.

The study’s authors stated, “ION is well established as the standard of care in thoracolumbar fusion surgeries, particularly anterior spinal fusion involving segmental artery ligation with attendant risk of vascular injury …  juries seem less willing to accept a second complication and resultant injury if monitoring is not used, with plaintiff verdicts or settlements in cases involving graft dislodgment, cauda equina injury from an instrument, and cord injury during anterior cervical fusion, any one of which could potentially be viewed by a jury as a known complication of spine surgery. Although any one of those injuries could have potentially occurred while operating within the standard of care, the lack of monitoring was a key finding that led to defense losses. There are multiple studies questioning the utility of ION in single-level cervical and lumbar surgeries, and it is up to the expert witnesses in the case to show the standard of care. Although a plaintiff still must prove that the lack of monitoring led to an injury, it is likely that expert witness could be introduced, maintaining use of ION as the standard of care in many, if not all, of these instances. It behooves the operating surgeon to ensure that, if ION is regarded as the standard of care for a particular surgery, it is used.”

“Once the decision to use ION is made, all parties involved are legally responsible for its proper use and interpretation and ensuring that adequate actions are taken in response to changes. In our opinion, proving malpractice due to negligent monitoring is more difficult for the plaintiff than in cases involving failure to monitor. A plaintiff must prove that a surgeon’s actions in response to changes in ION, or lack thereof, were the proximate cause of injury … Only 2 cases involved plaintiff verdicts. In both cases, pedicle screws were misplaced and crossed the spinal canal. In one case, it was determined that the surgeon did not address the changes in neuromonitoring, while in the second case it was determined that the surgeon was primarily responsible for the interpretation of the neuromonitoring waveforms, which he neglected to do. In both cases, the surgeons did not make any documented attempt to identify the cause of the ION change or reverse it. It seems that if surgeons take steps to rectify changes in ION, juries are more willing to accept that a poor outcome is within the standard of care.”

Source

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