DoctorpreneurNews.com sat down with board-certified professor of orthopedic spine surgery Dr. Kingsley R Chin to discuss the topic of the specter of expert spine surgeon witnesses required in copycat pedicle screw lawsuits to succeed in court. "It is no secret that plaintiff expert spine surgeons make a living from supporting malpractice lawsuits and collect high fees to review records and testify in court thus securing a pipeline of future referred cases and build a reputation as an expert spine surgeon witness," said Dr Chin.
MALDEN, Mass., Dec. 23, 2022 /PRNewswire-PRWeb/ -- Neurosurgeons and orthopedic spine surgeons perform surgeries around the spinal cord and nerves, which are highly delicate structures. Often patients present with disabling pain, numbness, weakness, and, in severe cases, paralysis and loss of bowel and bladder functions. Many patients are willing to brave the risks of a surgery over living with their disabling spine conditions. Patients tend to know the risks of spine surgery from online research or speaking to other patients who had spine surgery. The spine surgeon and staff then sit down with the patient and further explain the risks before the patient signs a legal consent document, without which the surgeon cannot perform the surgery. The risks include loosening or breakage of screws or other hardware, nerve injuries, spinal cord injury, weakness, numbness, paralysis, and even death.
So why do surgeons get sued by patients after spine surgery? Because of the money to be made from accusing doctors and forcing them to defend their surgeries and reputations in front of a jury that may sympathize with the patient and be convinced by the expert witness testimony. It is easy for a patient to believe a surgeon who sits on the witness stand and takes an oath to tell the truth. Is the surgeon incentivized? "What the patients don't know is that in order for the lawsuit to get to court, the lawyers need expert surgeons willing to support the case. These expert surgeons are paid on average over $500 per hour, travel expenses on average of $10,000 per day to appear in court" said Dr. Chin. This is a lucrative business for surgeons who make a living as expert witnesses.
There are some counties in the US such as Philadelphia in Pennsylvania and Miami-Dade Country in South Florida that are so inclined to award large payouts to anyone claiming an injury that an accused surgeon is compelled to settle or be considered foolish to attempt to go to court to get a fair trial. In one article looking at medicolegal cases against spine surgeons it was shown that neurosurgeons and orthopedic surgeons were equally named as the defendant (n = 32 and 31, respectively), in spine malpractice cases and cases were most commonly due to misplaced lumbar pedicle screws. Average payouts were over $1 M ($1,204,422 ± $753,832) between 1995 and 2019, when adjusted for inflation. These are large sums of money ready to be awarded in sympathy to patients who enter the court room limping in pain or sitting in a wheelchair. Lawyers know their case depends on the willingness of surgeons to be paid for their testimony to support their claims, so they find the plaintiff surgeons for sale who are willing to support the case in return for thousands of dollars in payments. The unsuspecting jury is inclined to believe the experts as independent doctors while suspecting the accused surgeon as a bad doctor who hurt the patient.
The other reason I found is the copycat cases. Lawyers search for cases and look for patients willing to file suit for similar surgeries and make similar claims. In a recent case a jury awarded $4.5 M for a claim of a misplaced pedicle screw against a neurosurgeon and orthopedic surgeon who did the surgery together. The plaintiff hired experts supported the patient claim for damages due to pain in the right leg, numbness in the right calf, and weakness in the right toes.
Expert surgeon witnesses are required to agree with the lawyers to get paid. I was accused of allegedly breaching the L5 pedicle with a pedicle screw leading to a patient suffering from chronic S1 nerve injury confirmed on EMG/NCV studies. A board-certified neurologist found no L5 nerve root injury yet, two spine surgeon plaintiff experts testified that the L5 screw was misplaced medially in the canal and caused the patient's S1 nerve symptoms. One of the experts removed the screws but claimed he entered the canal and witnessed the breach before removing the screws. However, entering the canal is impossible without first removing the midline mediolaterally placed cortical screws. Why would you go in to remove screws but checked to see if the screws were in the canal if you did not know the patient was sent to you with the intention to file a lawsuit? The case was decided for the plaintiff for pain and suffering and for her husband for loss of sexual consortium. We filed an appeal to counter claims made by expert spine surgeons and other evidentiary procedures. The plaintiff's lawyers decided to settle with us for a substantially much-reduced sum rather than risk a retrial.
So, are these screw lawsuits a new trend? It is a trend, but it is not new. Over 3,000 pedicle screw lawsuits were filed in the 90's against surgeons who performed pedicle screw surgeries and spine societies whose educational programs supported pedicle screws.
Copycat spine cases apply to any screw used in spine surgery. Beware of lateral mass screw copycat lawsuits. In about 2006, when I was at the University of Pennsylvania, I was accused of an alleged misplaced lateral mass screw that impinged a vertebral artery leading to the patient having post operative pain and numbness after revision posterior cervical decompression and fusion for myelopathy and a pseudomeningocele from previous multiple surgeries. They had an expert willing to testify that the tip of one lateral mass screw was against the vertebral artery. In our defense we requested a CT scan to confirm but the plaintiff lawyer refused and took us to court. Our lawyers decided it was too risky to defend the case in the Philadelphia court system, so they settled. This case is now in the records for other lawyers to copy if they find a patient who had posterior cervical fusion with lateral mass screws.
I was an expert witness for a neurosurgeon sued due to placing long pedicle screws at S1 on both sides. The patient reported worsening back and bilateral leg pain immediately after surgery, and imaging studies confirmed the long screws. Their expert transferred the patient to a competing hospital, where they revised all the screws and claimed the long S1 screws were responsible for the patient's post-operative pain. Ironically, the revised surgery showed that the one L5 screws and both S1 screws were long, breaching the lateral cortex and extending into the psoas muscle.
"Expect to see more pedicle screw copycat lawsuits as more screws are placed in the spine encouraged by industry pushing navigation and robots to aid in pedicle screw placement rather than total disc replacement or interspinous fixation as alternatives that require no screws." We are being dragged into a net where if you use navigation or robots and your pedicle screw is not perfect you will risk a lawsuit and if you use traditional methods and you have a misplaced screw you also risk being sued since navigation and robots were not used. Furthermore, many patients after pedicle screws are seen by pain management doctors who will be offering non-pedicle screw options for their back and leg pain. The question will be asked did we have to use pedicle screws? What about disc replacement or interspinous fixation?
I believe you will see surgeons retiring early or changing careers to go their master's in business administration (MBA) due to malpractice lawsuits and other financial pressures.
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