The Spine and Medical Negligence is a well focused attempt to catalog and survey problems associated with spinal surgery. It might be entitled Understanding the Fundamentals of Spinal Surgical Errors. Its strength is its clinical orientation, although this orientation may make the book seem inordinately basic to the experienced spinal surgeon. Its legal orientation lacks balance, depth, and insight into the nuances and complexities of laws pertaining to medical malpractice.
This book should prove most useful as a manual for attorneys litigating cases involving spinal surgery. It can serve as a consulting manual, providing basic clinical information that can be essential for preparing for a pivotal deposition of a spinal surgeon. It can also serve as a preparatory checklist for an expert reviewer of cases involving malpractice in spinal surgery. In addition, it can provide experienced spinal surgeons with an overview of the adverse outcomes of spinal surgery that are most likely to lead to malpractice claims. The clinical utility of the book is best illustrated in the chapter on "Cauda Equina Syndrome."
Since the author does an excellent job describing fundamental, but important, aspects of errors in spinal surgery, this book can be an important resource for training orthopaedic residents. Excerpts may also be useful for training personnel who will be assisting in some aspect of the surgery as well as nurses responsible for early detection of complications of spinal surgery.
The book is, however, disappointing in its failure to provide any challenging analysis of what differentiates a mere error from medical negligence. There are two viewpoints regarding an unsatisfactory outcome of spinal surgery. Although the author effectively addresses the surgical viewpoint, he fails to substantially contribute to a better understanding of the critical legal distinction between a surgical complication and surgical negligence. This failure is unfortunate because both orthopaedic surgeons and attorneys could benefit from an in-depth discussion of this issue. In the typical malpractice case involving spinal surgery, the battle lines are drawn over whether the undesired outcome was a complication. Plaintiffs' attorneys narrowly define a complication to mean an unavoidable adverse surgical outcome. Their criterion for determining liability in cases involving spinal surgery is simple: if an adverse outcome was avoidable, the spinal surgeon should be liable for the consequence of the outcome. Defense attorneys broadly define a complication to mean an adverse surgical event that is known to occur during the course of spinal surgery. Therefore, a defense attorney's criterion for assessing liability is equally simple: if a surgical event is known to occur, then the spinal surgeon should not be held liable if the event occurs. Typically, defense attorneys refer to data, such as those cited in this book, indicating that 2 to 3 percent of all patients undergoing spinal surgery get worse. Is the reader to assume that 2 to 3 percent of all patients treated with spinal surgery become unavoidably worse? If not, what criterion distinguishes an act for which a spinal surgeon is legally liable from one for which he or she is not liable? Can a surgeon who commits a common or honest error avoid liability on the grounds that the mistake was a complication? These are issues that the author does not adequately address. He leaves it to the reader to extract, from case examples, meaningful legal principles with which to avoid malpractice litigation.
The author presents a commendable survey and explanation of complications that have occurred after, or are associated with, spinal surgery. He provides useful and cogent explanations of complications of spinal surgery. He is also scrupulous in avoiding any biases that demonstrate a plaintiff's or defendant's point of view about malpractice litigation. He simultaneously demonstrates an understanding of a spinal surgeon's predicament as a malpractice defendant while taking an empathic approach toward patients who have been injured.
A portion of the book is dedicated to communication with patients. Porter's mock examples of conversations between physicians and patients are worthy of special praise. He is able to demonstrate to spinal surgeons how to communicate with patients in an honest and straightforward way, emphasizing the human rather than the technical aspect of the informed-consent process.
The book contains "user-friendly" explanations to help the reader to understand how and why a complication of spinal surgery occurs. The discussion of complications would have been enhanced if the author had categorized potential legal liability into three categories: occurrence of the complication, detection of the complication, and management of the complication. His discussion is focused almost exclusively on the occurrence of the complication. This is unfortunate since, in many litigated malpractice cases involving spinal surgery, the plaintiff is unable to prove surgical negligence with regard to the occurrence of the complication but instead develops legal theories regarding the surgeon's failure to diagnose the complication in a timely fashion and to manage it appropriately.
Although the author cites many pertinent clinical peer-reviewed articles, meaningful legal citations are scant, with several references to a 1957 case and other references to an Australian case. The tolerance of the British system for adverse outcomes is unlikely to be the same as that in the United States.
The case studies used to illustrate the principles appear to be authentic (presumably from the author's medicolegal experience). The examples tend to be descriptive rather than problem-based. Had the author used problem-based case examples, the reader could have applied his or her clinical or legal experience to resolve liability issues posed by the case examples. The author could have presented the clinical facts without commentary and then asked questions of the reader such as: Was the conduct of the surgeon justified in this case—that is, did the benefits outweigh the risks of the spinal surgery? Was the outcome in this case unavoidable? If it was avoidable, what steps could the surgeon have taken to avoid the injury? Even if the injury was avoidable, should the spinal surgeon be held legally liable for the surgical complication?
In addition to the case studies not being problem-based, the author's conclusions regarding liability are not explained. The reason for the outcome of many legal cases is not clear. Were the outcomes determined by legal or by business-related considerations? More importantly, it is difficult to ascertain to what extent outcomes were based on the clinical facts and circumstances of the case. One gets the sense that the author did not research the law as it applied to the clinical situations but relied upon personal experience or secondary sources. This may have made the author's viewpoint myopic.
Experience with and references to the British health-care jurisprudential system as authority for some of the author's conclusions may be inappropriate for spinal surgeons in the United States. Also, legally sound practices may not always be the same as good medical practices. There are few legal citations to support the author's conclusions regarding the appropriateness of a professional's conduct.
Although the layout of the book helps the reader to recognize a surgical problem, the author does not define or categorize the problems clinicolegally. The book illustrates clinicolegal terms and concepts but does not analyze them sufficiently—that is, the author does not point out the strengths and weaknesses of actions and inactions when a spinal surgeon is presented with a difficult clinical situation or address how to weigh the facts and circumstances for clinical decision-making.
The book addresses why patients sue but provides nothing revealing despite reference to some seminal studies. The discussion of the legal process, including proof of negligence, is unlikely to benefit a spinal surgeon in the United States because the underpinnings are British. The discussion of informed consent is helpful, posing the question of who should provide it, how much the patient should be told, and how a surgeon can be sure that the patient really understands. The author suggests that it is a surgeon's responsibility to determine and demand the time necessary to inform a surgical candidate. In addition, he wisely addresses the issue of proper positioning of the patient on the operating table, a mundane but important consideration in injury prevention.
The book's coverage of complications of spinal surgery encompasses: (1) the mechanism, clinical presentation, and management of nerve-root damage; (2) the pathoanatomy, clinical presentation, and urgency of timely detection and management of cauda equina syndrome; (3) the mechanism and management of surgically induced dural injury; (4) iatrogenic discitis and vertebral osteomyelitis; and (5) uncontrolled hemorrhage, including large-vessel injury and bleeding from superior gluteal arteries.
The author's effort in writing this book is commendable. He has taken a very narrow aspect of medical malpractice—that involving spinal surgery—and has attempted to exhaustively discuss the complications that can lead to litigation. The author should also be praised for the attitude that he conveys to his readers about the prevention of medical malpractice. Often, books on malpractice by physicians are nothing more than angry, unfocused attacks on attorneys and patients. This author was able to present his material in a manner that was sympathetic to the predicament of the spinal surgeon without compromising the need for high standards and vigilance in the performance of spinal surgery. Special mention needs to be made of the rigorous criteria that the author uses for the performance of spinal surgery and his recognition that even positive outcomes from spinal surgery may have limited benefit. He also demonstrates a sensitivity toward the need to treat patients as adults rather than children when he suggests methods of communication that do not attempt to oversell the benefits or minimize the risks of spinal surgery. In short, the author shows himself to be an excellent spinal surgeon whose only bias appears to be the best interest of patients. He succeeds in conveying the message that commitment to high surgical standards is an important means for reducing malpractice losses. The book, however, is a starting point rather than an end point in the understanding of when poor outcomes of spinal surgery constitute malpractice.
Sal Fiscina, M.D., J.D.Lawrence H. Brenner, J.D.Laura Forese, M.D., M.P.H.
Columbia University
Orthopaedic Risk Management Project
New York, N.Y.