Take-Away: An emergency spinal decompression surgery brings less-than-ideal results—inviting questions regarding how long messages regarding the patient’s lack of mobility went ignored. This case highlights the risks of cognitive biases, as well as the value of structured communication tools for escalating critical concerns.
The Case: A patient with a history of kyphoscoliosis, which is defined as a deviation of the normal curvature of the spine, and leg weakness saw an orthopedic surgeon. The surgeon performed a posterior spine fusion with multiple Ponte osteotomies, which refers to a removal of facet joints, lamina, and posterior ligaments. The surgery itself was completed without any complications—but post-operatively, nursing staff members reported concerns regarding the patient’s condition.
During the night, a nurse observed that the patient could not move or feel their left lower leg and had decreased urinary output. This nurse reported the patient’s status to an orthopedic resident, who saw the patient and then called the surgeon. However, the surgeon responded that the lack of movement was baseline for the patient and did not order additional imaging.
For hours, the nurse continued to message the resident regarding the patient’s inability to feel or move their lower leg. When the surgeon arrived for morning rounds, he noted the patient’s worsening condition and ordered a stat CT, which indicated bony fragments compressing the thecal sac. The surgeon completed an emergency decompression, but the patient remains non-ambulatory.
Analysis: This case example comes from a recent study analyzing 1,559 closed medical malpractice claims and suits—814 ambulatory, 745 inpatient—from the loss years of 2011 to 2021 in which orthopedic surgeons were the major responsible service.
Postoperative patients’ claims included failure to appreciate and reconcile signs, symptoms, and test results. As in the case example above, such failures often intersected with communication issues, and common themes emerged.
Tips for Malpractice Risk Reduction
The 3 Ps: When medical professionals take every possible care to Prevent adverse events, this improves patient safety and mitigates liability risks. When a known complication or adverse event does occur, medical professionals can take steps to Preclude the complication from progressing into a medical malpractice claim. On the rare occasions when a claim progresses to a lawsuit, medical professionals and their insurers turn their attention to how to Prevail in court.
This particular event lends itself to a closer look at the first P, Prevent: Prevent adverse events by remaining on guard against the more seductive cognitive biases, especially affective bias, a.k.a. wishful thinking. This patient’s history of lower extremity weakness, paired with the surgeon’s reluctance to return to the hospital during the night, may have yielded a strong affective bias against acknowledging signs of the patient’s deteriorating condition. In other words, affective bias may have clouded the surgeon’s judgment.
Such patient assessment issues were a primary driver in 22% of studied claims. Failure or delay in ordering a diagnostic test occurred in 8% of claims. Thus, this particular case example shares features with other studied claims, and it presents the types of decisions regularly encountered in clinical practice for orthopedic surgeons. Ordering the stat CT earlier might have allowed earlier intervention and prevented the adverse outcome.
Communication between providers can also help prevent adverse events. In this case, stronger communication between providers could have included escalation of the nurse’s concerns to a “higher authority” such as a nurse manager, who might have been able to convince the surgeon to come in, or failing that, communicating with the department chair.
Incorporating structured communication tools into an organization’s teamwork training can be helpful in this scenario. Structured communication tools convey a variety of benefits, but this case example highlights the potential of the CUS tool. This tool is specifically designed for escalating concerns: When a team member has a patient safety concern that they feel is not being addressed, their script is: “I am Concerned. I am Uncomfortable. This is a Safety issue.” And they explain why. The CUS tool does not cover all eventualities, but in a busy environment filled with competing concerns, the CUS tool can help in a situation where a complication is developing—one that may yet be remedied with timely intervention.
This discussion of orthopedic surgery risks is based on “The Malpractice Experience of Orthopedic Surgeons 2011 to 2021: Patient Selection and Communication May Mitigate Risk of Claims,” published by The Doctors Company.