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  • Determining the Role of Informed Consent Allegations in Spinal Surgery Medical Malpractice

    Final Number:

    Jennifer Grauberger; Panagiotis Kerezoudis MD; Asad Choudhry; Mohammed Ali Alvi M.D.; Sandy Goncalves MSc; Jenna Meyer; Ahmad Nassr MD; Bradford L. Currier MD; Mohamad Bydon MD

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    Meeting: Congress of Neurological Surgeons 2017 Annual Meeting

    Introduction: Predictive factors associated with increased risk of medical malpractice litigation have been identified including severity of injury, physician sex and error in diagnosis. However, there is a paucity of literature investigating informed consent in spinal surgery malpractice. Our objective was to highlight the failure to obtain informed consent as an allegation in medical malpractice claims for patients undergoing spine-surgery.

    Methods: This was a retrospective case-control study using a national medico-legal database "westlaw next". We identified a total of 233 patients (80 with no informed consent allegation, 153 who cited lack of informed consent) who underwent spinal surgery and filed a malpractice claim were studied.

    Results: The most common informed consent allegations were failure to explain risks/side effects of surgery (30.4%) and failure to explain alternative treatment options (9.9%). In bivariate analysis, patients in the control group were more likely to require additional surgery (56.3% vs 34.6%, P = 0.002) and suffer from more permanent injuries compared to the informed consent group (P = 0.033). On multivariable regression analysis, permanent injuries were more often associated with indemnity payment following a plaintiff verdict (OR 3.12, 95% CI 1.46 - 6.65, P = 0.003) or a settlement (OR 6.26, 95% CI 1.06 - 36.70, P = 0.042). Informed consent allegations were significantly associated with less severe (temporary/emotional) injury (OR 0.52, 95% CI 0.28 - 0.97, P = 0.043). Additionally, allegations of informed consent were found to be predictive of a defense verdict versus a plaintiff ruling (OR 0.41, 95% CI 0.17 - 0.98, P = 0.046) or settlement (OR 0.01, 95% CI 0.001 - 0.15, P < 0.001).

    Conclusions: Lack of informed consent is an important cause for medical malpractice litigation. Although associated with a lower rate of indemnity payments, malpractice lawsuits including informed consent allegations still present a time, money, and reputation toll for physicians

    Patient Care: This study helps the spine surgeons appreciate the importance of informed consent. Although informed consent allegations were found to be less likely to result in an unfavorable case verdict outcome or payment for spinal surgeons, they still present an important aspect of medical malpractice.

    Learning Objectives: By the conclusion of this session, participants should be able to 1) Understand and appreciate the role of informed consent in spine surgery. 2) Discuss the importance of explaining alternative treatment of options to the patient


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