The
ultimate goal in presenting these cases is to help
physicians practice safe medicine. An attempt has been made
to make the material more difficult to identify. If you
recognize your own claim, please be assured it is presented
solely to emphasize the issues of the case.
Presentation
A 50-year-old man was admitted to the hospital for a
decompression laminectomy, excision of a ganglion cyst,
L3–L4 facet joint fusion with instrumentation and left iliac
crest bone graft. Previously the patient had undergone
multiple back surgeries, including a fusion at L4 to S1 and
multiple discectomies and excisions of ganglion cysts at the
L3–L4 level. A previous MRI revealed a recurrent ganglion
cyst at L3–L4 on the left, significant facet hypertrophy and
degeneration.
Physician
action
The patient did well postoperatively and was discharged
four days following
surgery. The physician saw the patient for postoperative
care one week after surgery. He was doing extremely well. He
returned a month later with complaints of pain in the
buttock area and was given an injection into his greater
trochanteric bursa. A month after the injection, the patient
reported great relief from the injection, stating he was
comfortable playing golf. At this time, the physician
reviewed the films and realized for the first time that the
instrumentation was placed at L2–3 instead of L3–4. The
patient continued to have mild pain, but since the patient’s
condition had improved, the physician advised the patient
that he would simply monitor the condition and see if he
remained stable before considering future surgery.
It was not until the next visit that the physician informed
the patient that instrumentation had been performed at the
wrong level. At that time he advised waiting two more weeks
before considering future surgery, believing the source of
the pain was bursitis and not the previous cyst. The patient
did not keep his next scheduled appointment. This was
documented in the patient’s record, but there was no further
follow-up.
Six months later the patient underwent repeat surgery by
another orthopedic surgeon. This was an extremely complex
surgery resulting in a four level fusion S1 through L3 and
4.
Allegations
• failure to properly treat the condition;
• failure to identify correct level of the spine at the
time of surgery;
• failure to perform surgery on the proper level; and
• failure to obtain informed consent before performing
surgery at the L2–L3 level.
Legal
principle
Both defendant and plaintiff experts were critical of the
care given in this case. They had difficulty supporting a
surgical procedure occurring at the wrong level. There
should have been evidence in the area of past surgical
intervention such as a fusion mass and other indicators of
surgery. Lack of these signposts should have indicated to a
reasonable surgeon that he was at the wrong level.
The defendant physician testified there was no legitimate
reason to perform surgery at the level he did. No
intraoperative x-rays were taken during the surgery to
confirm placement. He intended to do a level below the one
that was actually fused. Likewise, there was no compelling
evidence that the mistake was caused by an anatomical
anomaly such as a transitional vertebra.
This case was also complicated by the fact that the
physician delayed informing the patient of the error once it
was discovered. Consultants were also critical of a six-week
gap between the surgery and dictation of the operative
report.
Disposition
It was difficult to find expert witnesses to support the
physician’s actions. The additional massive surgical
procedure the patient had to undergo was complicated,
involving a multi-level fusion. The physician who performed
that surgery indicated that even with the multi-level
fusion, the patient would have problems later on with the
level above the fusion taking up additional stress and,
therefore, breaking down more quickly than it otherwise
would.
The patient had to undergo an additional complicated
surgery and subsequently suffered a loss of income, as he
was self-employed and only able to work part-time during his
recovery. This case was settled before trial.
Risk
management considerations
Failure to properly locate and identify the correct level
falls below the standard of care for an orthopedic surgeon
in performing spinal surgery. The standard of care would
include taking x-rays during surgery to define the correct
level.
Experts were critical of the six-week delay between the
surgery and the dictated operative report. It is dangerous
to rely solely on memory to produce reports long after the
procedure has been completed. Timely dictation is always
recommended to capture accurate details of the surgical
procedure. Plaintiff’s attorneys will use lapses such as
this as an opportunity to discredit the physician.
Incidentally, the physician used the phrase “Dictated But
Not Read” in his chart notes. While use of this wording is
an honest illustration of a physician’s busy schedule, it
does not necessarily demonstrate thoroughness in medical
records.
When the error was discovered, the physician did not
promptly inform the patient. Physicians should always be
forthright and expeditious in communicating bad outcomes or
errors to the patient. Minimizing the importance of the
event causes immediate suspicion in patients and families.
The physician should show concern, offer explanations, and
demonstrate clearly that the patient’s welfare remains the
physician’s top priority.
There was no documentation of efforts to contact the
patient when he did not show up for his appointment.
Patients should be contacted when the reason for an
appointment is not routine, especially for a postoperative
visit with the potential for complications.
The
information and opinions in this article should not be used
or referred to as primary legal sources nor construed as
establishing medical standards of care for the purposes of
litigation, including expert testimony. The standard of care
is dependent upon the particular facts and circumstances of
each individual case and no generalization can be made that
would apply to all cases. The information presented should
be used as a resource, selected and adapted with the advice
of your attorney. It is distributed with the understanding
that neither Texas Medical Liability Trust nor Texas Medical
Insurance Company is engaged in rendering legal services. ©
2007 TMLT
