Durotomy in Malpractice Suits: What Spine Surgeons Need to Know

How durotomy is treated legally may change how you approach it medically.

A retrospective study that analyzed medical malpractice associated with incidental durotomy found that most cases resolved in the surgeon’s favor. However, the court was more likely to rule with the patient if it was alleged that durotomy care was delayed or improperly performed.
Stethoscope and a gavel on a medical form.In this study, the court was more likely to rule with the patient if it was alleged that durotomy care was delayed or improperly performed.Incidental durotomy, which occurs when a surgeon unintendedly cuts or punctures the dura mater, is a common complication of spine surgery. The commonality of durotomy has led some surgeons to approach it as a benign complication. However, these findings, which were published ahead of print in Spine, underscore the importance of addressing durotomy quickly and properly.

“A growing body of literature has shown that the risk of litigation greatly impacts medical practice decisions,” said lead author Wesley M. Durand, ScB, a medical student at Brown University, Providence, RI. “Spine surgeons may look to results of our study to better understand the manner in which durotomy is treated in a legal context.”

Durotomy and Spine Surgery Malpractice: A Look Inside the Cases
The researchers procured 48 closed incidental durotomy malpractice cases by searching 3 legal databases. Only surgical cases performed by orthopaedic surgeons and/or neurosurgeons were included.

Most cases involved thoracic/lumbar surgeries (84.6%, n=33), with cervical procedures accounting for 15.4% (n=6) of cases. Most patients (plaintiffs) underwent non-fusion surgery (71.1%, n=32 compared to 28.9%, n=13, for fusion procedures).

The plaintiffs were 24 men and 24 women with an average age of 55 years. The allegations from the plaintiffs included the need for additional surgery, delayed diagnosis and/or treatment, improper repair, intraoperative nerve damage, and failure to obtain informed content.

Injury severity included weakness (60.4%, n=29) and paralysis, brain damage, or death (20.8%, n=10).

What Factors Favor Surgeons—and What Favors Patients?
The researchers found that 56.3% (n=27) of cases ruled in favor of the surgeon (defendant), while patients won 43.7% of cases (20.8%, n=10, resolved by verdict and 22.8%, n=11, resolved by settlement). For cases involving a payment, patients received an average $2,757,298 in 2016 adjusted dollars.

A repeat durotomy repair surgery did not mean that a patient was more likely to receive a favorable ruling (42.8% cases with reoperation vs. 38.1% without, P=0.486). However, patients were more likely to receive a favorable ruling if they alleged delay in diagnosis/treatment (61.9% vs. 29.6%, P=0.025).

Additionally, cases with alleged improper durotomy repair technique were less likely to yield a verdict for the defendant surgeon (72.7% vs. 35.1%, P=0.040).

“In all cases with alleged improper repair technique, dehiscence of durotomy repair occurred,” Durand said. “The techniques used in these cases, however, were almost always within the accepted standard of care. Accordingly, it is possible that the mere occurrence of repair dehiscence may be being used in a legal context as evidence of improper technique.”

If that’s true, Durand said this finding may have implications for tort reform around the concept of res ipsa loquitur (a concept in tort reform wherein the occurrence of an event itself implies negligence).

A Key Takeaway for Spine Surgeons
This study’s findings show that by addressing incidental durotomy quickly and properly, surgeons are more likely to receive a favorable outcome in a malpractice allegation. Conversely, durotomy that isn’t detected and treated early—or that results in significant neurological injury—are likely to work in patients’ favor in litigation.

Updated on: 01/24/18
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