Medico-legal risk: What neurosurgeons need to know

At the end of 2021, 306 CMPA members were neurosurgeons (Type of Work 92). In the recent 5 years (2017 – 2021)¹, 26.8% of neurosurgeons were named in one new medico-legal case (legal action, College or hospital complaint), and another 15% were named in 2 or more new cases.

Annually, 11.8% of neurosurgeons were named in one new medico-legal case, and an additional 1.9% were named in two or more new cases on average across this 5-year period.

What are the relative risks of a medico-legal case for neurosurgeons?

In the past 10 years, neurosurgeons generally had similar rates of College matters² compared to all surgical specialties.

Neurosurgeons had significantly higher rates of civil legal actions than other surgical specialties in the past 10 years.

The following sections describe the findings based on the 313 civil legal cases, College, and hospital matters involving neurosurgeons with peer expert criticism that were closed by the CMPA between 2012 and 2021.

What are the most common patient complaints and peer expert criticisms?³ (n=313)

Complaints are a reflection of the patient’s perception that a problem occurred during care. These complaints are not always supported by peer expert opinion. Peer experts may not be critical of the care provided, or may have criticisms that are not part of the patient allegation. These complaints might not result in a negative finding by a College or court.

What are the most frequent interventions with peer expert criticism? (n=313)

Overall, 40% of the patients in these cases had a spinal surgery, while 22% had a cranial surgery.

Intervention frequencies among medico-legal cases are likely representative of neurosurgeons’ practice patterns and do not necessarily reflect high risk interventions.

The most common peer expert criticisms on these interventions include:

• Deficient assessment
• Failure to perform test or intervention
• Inadequate consent process
• Inadequate surgical skills
• Incorrect use of surgical equipment
• Poor decision-making regarding surgical management (e.g. incorrectly proceeding with surgical intervention)

What are the top factors associated with severe patient harm⁴ in medico-legal cases? (n=313)

Risk reduction reminders

The following risk management considerations have been identified for neurosurgeons.

Pre-operative

• Gather an appropriate medical history from the patient, including comorbidities and current medications, and conduct a focused physical examination including vital signs. Consider relevant risk factors and their impact on the patient’s surgical management.
• Ensure the healthcare provider who conducts the consent discussion provides appropriate information on the risks and benefits of the proposed surgery, alternative options, expected outcomes, and how a patient’s pre-existing conditions could increase the risk of complications. The patient (and family or caregiver, if appropriate) should be given the opportunity to ask questions. The discussion should be adequately documented in the medical record.

Intra-operative

• Follow manufacturer safety guidelines when using surgical equipment, including taking all appropriate safety precautions when using drills.
• Consider the risks of intraoperative injuries during all phases of surgical care.
• See our article addressing this topic: Can intraoperative decisions be diagnostic errors?

Post-operative

• Assess the patient following surgery and carefully document the patient’s condition. Be alert to signs of post-operative complications. Thoroughly investigate any post-procedural complaints by patients and respond appropriately in a timely fashion. Ask team members (e.g. nurses, residents) to alert you of unexpected signs and symptoms.
• Provide patients with appropriate follow-up and clear instructions (verbal or written), including symptoms and signs that should alert them to seek further medical attention. Confirm patients’ understanding of the information being provided.

Now that you know your risk…

Mitigate your medico-legal risk with CMPA Learning resources.

• eLearning activity: Informed consent
• eLearning activity: Documentation
• CMPA workshop: Theatre Arts
• CMPA workshop: Advanced Diagnostic Reasoning
• CMPA research: Trends and contributing factors in medico-legal cases involving spine surgery

Questions?

Please contact [email protected]

Notes

1. 1. 
   It takes an average of 2-3 years for a patient safety incident to progress into a medico-legal case. As a result, newly opened cases may reflect incidents that occurred in previous years.
2. 2. 
   Physicians voluntarily report College matters to the CMPA. Therefore, these cases do not represent a complete picture of all such cases in Canada.
3. 3. 
   Peer experts refer to physicians who interpret and provide their opinion on clinical, scientific, or technical issues surrounding the care provided. They are typically of similar training and experience as the physicians whose care they are reviewing.
4. 4. 
   Severe patient harm includes death, catastrophic injuries, and major disabilities. Healthcare-related harm could arise from risk associated with an investigation, medication, or treatment. It could also result from failure in the process of patient care.
5. 5. 
   Patient factors include any characteristics or medical conditions that apply to the patient at the time of the medical encounter, or any events that occur during the medical encounter.
6. 6. 
   Based on peer expert opinions. These include factors at provider, team, and system levels. For neurosurgery cases, there is no evidence for any system level factors in the data.