Originally published June 2019
Spinal surgery is increasingly challenging in Canada for a number of reasons. An estimated 5.5 million Canadian adults are now living with chronic back pain1 and some will seek a surgical opinion in the hope of obtaining pain relief. Advanced age and comorbidities are common, adding procedural complexity. Intra-operative injuries are rare, but often serious. These challenges frequently lead to medical-legal actions and complaints.
Among medical-legal cases closed by the CMPA in the past five years that involved neurosurgeons, over one-third related to spinal surgery. Among cases that involved orthopaedic surgeons, approximately 5% related to spinal surgery.
Cases at the CMPA
Between 2013 and 2017, the CMPA closed 103 cases (civil legal actions and regulatory authority [College] and hospital complaints) involving spinal surgery performed by a neurosurgeon or orthopaedic surgeon.
- >80% of surgeries were elective
- Approximately ½ of surgeries involved a patient with chronic pain
- Most surgeries involved the lumbar region of the spine2
Some cases arose from poor patient outcomes that peer experts3 or Colleges deemed to be due to inherent risks or unrelated to the spinal surgery. In these cases, there was no criticism of the surgeon’s care. However, in other cases, there were learning opportunities.
Three essential lessons can be learned from the medical-legal cases.
1. Engage in and document a fulsome informed consent discussion
In nearly 40% of CMPA cases, patients alleged that key information was not provided during the informed consent discussion.
Case example: A patient develops profound weakness after surgery
An older woman, with severe lower back pain and a kyphoscoliotic deformity, elects to undergo surgery by an orthopaedic surgeon. She signs an informed consent form outlining the risks of surgery and later undergoes an extensive spinal fusion from T10 to the pelvis. Post-operatively, she experiences profound weakness in her distal right leg, and her recovery is incomplete. Years later, she still requires assistance walking. The patient lodges a College complaint alleging a poorly executed procedure and inadequate informed consent. She says that the surgeon did not tell her this outcome was possible.
What did the College say?
The College voices no concern about the technical performance of the orthopaedic surgeon, but does note that he should have communicated more clearly with the patient about the risks and potential complications of the surgery. Further, it cautions him to improve his record keeping. While the surgeon recalls discussing all relevant risks of surgery with the patient, he did not document this discussion clearly in the medical record.
In 12 of the CMPA cases reviewed, the peer experts, College, or hospital committee noted that the surgeon did not adequately communicate the risks of surgery or present alternative treatments to the patient. Usually, these criticisms stemmed from a lack of documentation. There were also misunderstandings about the information conveyed by the surgeon. For example, one patient sought relief from chronic lower back pain only to learn later that the intent of the surgery was to relieve the associated leg pain. Studies show that the outcomes expected from spinal surgery (e.g. recurrence) often differ between patients and their surgeons.4
The CMPA recommends the following informed consent strategies:
- Explain the material risks of the surgery and serious risks such as paralysis or death, even if rare.
- Discuss alternative treatments, including non-surgical options.
- Explain the potential benefits of surgery realistically to the patient. For chronic pain sufferers, explain your expectations for pain relief.
- Take reasonable steps to assess patient understanding of the conversation. For example, provide opportunities for questions and ask patients to state their expectations.
2. Manage the risks of an intra-operative injury
Among the CMPA cases reviewed, 32 involved an intra-operative injury. Some of these cases involved trainees to whom surgeons delegated procedures under supervision. The most common types of injury were dural tears, spinal cord injuries, and lacerated iliac arteries or veins. Patients in 13 of the 32 cases experienced severe harm, including paralysis.
One-half of the cases resulted in an unfavourable medical-legal outcome for the surgeon. In such cases, the criticism by peer experts and Colleges included:
- Surgery not indicated
- Inadequate informed consent, or inadequate documentation of the informed consent discussion
- Improper use of a high-speed drill
- Misinterpretation of intra-operative imaging
- Failure to investigate or treat post-operative symptoms in a timely manner
- Inadequate disclosure of injury to the patient, or inadequate documentation of disclosure
These criticisms support the following suggested risk mitigation strategies:
- Carefully consider the indications for the procedure, especially in high-risk patients and patients with chronic back pain.5, 6
- Follow manufacturer safety guidelines when using surgical equipment, including taking all appropriate safety precautions when using drills. Closely supervise less experienced trainees.
- Appropriately disclose intra-operative injuries to the patient, and document disclosure in the medical record.
- After surgery, be alert to signs of injury and respond appropriately in a timely fashion. Ask team members (e.g. nurses, residents) to alert you of unexpected signs and symptoms.
3. Verify the correct level and side
Intra-operatively identifying the correct spinal level is occasionally difficult and can be stressful for surgeons. Among the CMPA cases reviewed, 14 involved surgery at the wrong level or on the wrong side (i.e. right versus left side of the spine), typically in the lumbar region.
Case example: Intra-operative challenges lead to wrong level surgery
An older man with obesity and a history of lumbar surgery presents to a neurosurgeon with increasing back pain, leg numbness, and urinary retention. The surgeon orders an MRI and identifies a central disk herniation at T12-L1 with significant cord compression. The patient consents to an urgent laminectomy and diskectomy at T12-L1.
Using a posterior approach and fluoroscopy, the surgeon does not find a disk herniation. He closes the wound. He seeks consent from the patient’s substitute decision-maker to continue surgery with an anterior thoracotomy approach. With proper consent, the surgical team turns the patient and the surgeon performs a partial corpectomy and diskectomy.
Post-operatively, an MRI reveals the surgical site at the wrong level (T11-T12). The surgeon discloses this finding to the patient. The patient returns for surgery at the correct level the next day by a different surgeon. Complications ensue, leading to persistent, debilitating pain.
What did the experts say?
Experts note that the intra-operative, fluoroscopic image from the first surgery was not sufficiently clear to identify the correct spinal level. They opine that the surgeon’s decision to move immediately to an anterior approach without further and better imaging fell below the standard of care. The CMPA pays a settlement to the patient on behalf of the neurosurgeon.
Among the reviewed CMPA cases involving wrong level surgery, peer experts frequently noted that images were of lower quality, misinterpreted, not used, or not available at the right time. There were also pitfalls in team communication. In each case involving wrong side surgery, surgical team members failed to verify the surgical site intra-operatively as per hospital policy.
The literature describes multiple safeguards that may prevent wrong site spinal surgery.7 The following strategies are supported by the cases:
- Communicate with team members (e.g. in a pre-surgical pause) to verify the correct level and side for surgery.
- Confirm that pre-operative records and intra-operative images are available in the operating room for comparison.
- Have a plan for action if the expected pathology is not found or imaging is unclear. For example, consult a colleague or persist in obtaining a better image.
The bottom line
In a medical-legal case, peer experts, Colleges, and hospitals will acknowledge the technical challenges inherent to spinal surgery. However, they can be critical of your communication with the patient, your team communication skills, and your documentation. To mitigate the medical-legal risks of spinal surgery, consider the following strategies:
- Conduct and document an appropriate informed consent discussion.
- Consider the risks of intra-operative injuries during all phases of surgical care.
- Use multiple safeguards to verify the correct level and side for spinal surgery.
- Badley EM, Millstone DB, Perruccio AV. Back pain and co-occurring conditions: Findings from a nationally representative sample. Spine (Phila Pa 1976). 2018 Aug; 43(16):E935-E941
- The proportion of spinal surgeries performed on the lumbar (i.e. lumbar, lumbosacral, thoracolumbar) region of the spine in Canada (excluding Québec) between 2012 and 2017 was 56%, according to the Canadian Institute for Health Information.
- Peer experts refer to physicians retained by the parties in a legal action to interpret and provide their opinion on clinical, scientific, or technical issues surrounding the care provided.
- Lo WB, McAuley CP, Gillies MJ, Grover PJ, Pereira EAC. Consent: An event or a memory in lumbar spinal surgery? A multi-centre, multi-specialty prospective study of documentation and patient recall of consent content. Eur Spine J. 2017 Nov;26(11):2789-2796.
- Canadian Spine Society. Spine: Eight things physicians and patients should know. Toronto (CA): Choosing Wisely Canada; January 2018 [cited 2019 Feb 12]. Available from: https://choosingwiselycanada.org/spine/.
- North American Spine Society: Guideline Summaries. Guideline Central, 2019 [Internet]. Lake Mary (US): American Medical Association; [cited 2019 Feb 12]. Available from: https://www.guidelinecentral.com/summaries/organizations/north-american-spine-society/#link=https://www.guidelinecentral.com/summaries/categories/treatment/&activeTab=#summary-view-category.
- Grimm BD, Laxer EB, Blessinger BJ, Rhyne AL, Darden BV. Wrong-Level Spine Surgery. JBJS Rev. 2014 Mar 11;2(3).