Legally, surgeons should not consider durotomy ‘an entirely benign event’

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In the US, most malpractice cases associated with dural tear end in a ruling favourable to the surgeon. But, reports a Brown University study, certain types of durotomy cases are more likely to resolved in favour of the patient.

Incidental durotomy – small tears of the outer membrane of the spinal cord – are a common occurrence in spinal surgery, and may lead to litigation. Most malpractice cases associated with dural tear end in a ruling in favour of the surgeon, reports a study.

But certain types of durotomy cases are more likely to resolved in favour of the patient – especially when durotomy is detected late or causes more-severe injury, according to the new research. The lead author is Wesley M Durand, ScB, a medical student at Brown University, Providence, Rhode Island.

In a search of three legal databases, the researchers identified 48 malpractice cases involving “incidental durotomy” during spinal surgery. Incidental durotomy refers to unintended tears or puncture of the dura mater: the tough outer membrane covering the spinal cord. Dural tears occur frequently during spinal surgery; when promptly recognised and repaired, they generally cause no long-term problems.

However, complications can ensue if the dural tear is not repaired, or if it re-opens after surgery (dehiscence). The researchers evaluated the outcomes of malpractice cases involving incidental durotomy, and factors associated with which way the case was decided. All 48 cases were resolved by verdict or settlement.

The patients with incidental durotomy were 24 men and 24 women, average age 55 years. Allegations included the need for additional surgery, delayed diagnosis/treatment, and/or improper durotomy repair. Injury severity included weakness in about 60% of cases and paralysis, brain damage, or death in 20%.

Most cases – about 56% – resulted in a verdict in favour of the physician or surgeon (defendant). That included more than 80% of cases not involving neurologic complications, such as weakness or brain damage.

The remaining 44% of malpractice cases were settled or decided in favour of the patient or family (plaintiff). In cases involving a payment, the average amount was about $2.8m (in 2016-adjusted dollars). Male plaintiffs were more likely to receive a favourable decision.

On its own, the need for further surgery to repair a dural tear did make it more likely that the patient would receive a favourable settlement or verdict. But a decision favouring the patient was more likely in cases with alleged delay in diagnosis/treatment, 62%; or improper repair, 73%.

The study helps to clarify the medico-legal aspects of durotomy-related malpractice verdicts and settlements. That’s especially important because incidental durotomy is such a common – sometimes unavoidable – occurrence in spinal surgery.

The findings underscore that, from a legal standpoint, surgeons should not consider durotomy “an entirely benign event.” Surgeons are more likely to prevail in cases where a dural tear is promptly recognized and treated, and when durotomy causes minor, non-neurological injuries. In contrast, a decision in favour of the patient is more likely if the durotomy goes unrecognised, results in more severe injuries, or reopens after repair. “These findings may be important for future tort reform,” the researchers write.

Study Design: Retrospective cohort study.
Objective: Analyze medical malpractice verdicts and settlements associated with incidental durotomy.
Summary of Background Data: Incidental durotomy is a common complication of spine surgery. While most intraoperative dural tears are repaired without sequelae, persistent CSF leak, infection, or neurological injury can yield adverse outcomes. The medicolegal implications of incidental durotomy are poorly understood.
Methods: Three separate, large legal databases were queried for cases involving incidental durotomy. Case, plaintiff, procedure, and outcome characteristics were analyzed.
Results: In total, 48 dural tear-related medical malpractice cases were analyzed. Most cases (56.3%) resulted in a ruling in favor of the defendant physician. Most cases alleged neurological deficits (86.7%). A large majority of cases without neurological sequelae had an outcome in favor of the defendant (83.3%). For cases involving a payment, the average amount was $2,757,298 in 2016 adjusted dollars. Additional surgery was required in 56.3% of cases, a delay in diagnosis/treatment of durotomy was present in 43.8%, and alleged improper durotomy repair was present in 22.9%. A favorable outcome for the plaintiff was more likely in cases with vs. without alleged delay in diagnosis/treatment (61.9% vs. 29.6%, p = 0.025) and improper durotomy repair technique (72.7% vs. 35.1%, p = 0.040). Repeat surgery was not associated with favorable outcome for the plaintiff (42.8% cases with reoperation vs. 38.1% without, p = 0.486).
Conclusions: This analysis of durotomy-associated closed malpractice claims following spine surgery is the largest yet conducted. Durotomy cannot always be considered an entirely benign event, and these findings have several direct implications for clinicians: 1) late-presenting or dehiscent durotomy may be associated with adverse outcomes and subsequent risk of litigation, 2) timely reoperation in the event of durotomy-related complications may not increase surgeon liability, 3) spine surgeons should be prepared to defend their choice of durotomy repair technique, should dehiscence occur.

Wesley M Durand, Adam EM Eltorai, Govind Shantharam, J Mason DePasse, Eren O Kuris, Alicia E Hersey, Mark A Palumbo, Alan H Daniels

Wolters Kluwer Health material
Spine abstract

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