Defending Good Medicine

July 19, 2023
Malpractice allegations go to trial

A 54-year-old woman with a history of numbness and tingling in both hands and bilateral weakness in her lower legs was referred to a neurosurgeon by her primary care physician for a consultation. She told the neurosurgeon she had undergone a laminectomy at L4-5 for a synovial cyst six years ago. The neurosurgeon’s assessment was spinal stenosis of the lumbar region with neurogenic claudication and spondylolisthesis of the lumbar region. He recommended conservative treatment with epidural injection, nonsteroidals and physical therapy.

One year later, she returned to the neurosurgeon and reported little improvement with conservative measures. The neurosurgeon recommended L4-5 posterior lumbar interbody fusion. During the surgical procedure, the neurosurgeon observed that one of the pedicle screws appeared to have breached the bone and entered the foramen. He obtained imaging and confirmed a medial breach at L4 on the left. The neurosurgeon evaluated the screw under direct visualization, observed there was no impingement on the nerve and left the screw in place. The neurosurgeon discussed this with the patient before discharge from the hospital.

Two weeks later, she returned to the neurosurgeon’s office for staple removal. She was complaining of pain in her left hip radiating to her left knee, as well as numbness and tingling on the left side. The neurosurgeon ordered an MRI, and the radiologist noted pedicle encroachment on the exiting left L4 nerve root. A nurse called the patient to report that the neurosurgeon had reviewed the MRI report, which showed the end of the screw near the nerve root, and that the neurosurgeon thought the pain would improve with time. A follow-up appointment and CT scan were scheduled for two weeks later. However, one week later, the patient presented to the emergency department (ED) with left leg pain and weakness. The neurosurgeon’s partner was on call, did not examine the patient but advised the ED care team to tell her to keep her appointment in one week, as scheduled.

One week later, the neurosurgeon examined the woman, explained that the MRI showed the screw pushing through the cortex but that there was no impingement on the nerve, and adjusted her pain medications with a plan to see her in two weeks. The woman did not return to the neurosurgeon but sought a second opinion from another neurosurgeon who recommended revision of the left L4 pedicle screw. Following that surgery, the woman continued to complain of left leg pain and weakness. The second neurosurgeon suspected that she had chronic pain syndrome.

The woman filed a lawsuit against the first neurosurgeon alleging improper surgical treatment, improper surgical patient management and lack of informed consent. The plaintiff (patient’s) attorney alleged that our insured neurosurgeon should have taken the patient back to surgery and removed the screw after she presented with postoperative complaints of leg tingling and weakness. The plaintiff’s attorney asked for policy limits to settle the case. We had good medical expert support for the neurosurgeon’s care and took the case to trial. Our experts opined that it was standard of care to leave the screw in place because it wasn’t impacting the nerve.

The case went to trial and the plaintiff’s attorney asked for $27M in closing arguments. We had excellent defense counsel and expert medical witnesses who showed the jury that the screw was not touching any of the patient’s nerves and therefore could not cause harm. The jury agreed and returned a defense verdict.

What’s driving high settlement demands and high jury verdicts?

Recent years have shown an increase in excessive malpractice verdicts across the country. In addition, plaintiff settlement demands are on the rise—often driven by the limits of liability carried by the defendant health care organization instead of what is needed to fairly compensate the patient for their injuries. Changing societal attitudes about corporate medicine combined with media attention surrounding excessive jury awards in other industries (e.g., auto liability) can drive large settlement demands and verdicts above the generally accepted value of a case.

High settlement demands and jury verdicts are deemed excessive when the monetary damages far exceed reasonable compensation in like-kind cases. Lawsuits are taken to trial when the patient, their attorney and the defense team are unable to come to an agreement about a fair settlement value of an injury when there are issues with the care provided.

Harm event and claim management: Responding quickly after adverse outcomes

Our early intervention program is geared toward responding quickly after a harm event. It begins with the policyholder reporting an unanticipated or adverse outcome to us as soon as possible. Afterward, our team:

  • Conducts a quick and thorough event analysis to determine the next best steps
  • Communicates with the patient (and attorney if they have one) what the event analysis revealed
  • Determines the settlement value (fair compensation) of the case by looking at like-kind cases when the event analysis reveals there were issues with the care

If the patient or their attorney can’t come to a settlement agreement with us about the fair value of an injury, a case may go to trial. We will defend the clinician and health care organization by partnering with the best medical malpractice defense attorneys.

Our commitment: Defending good medicine

For a physician or a health care organization, it may seem a less stressful path to just settle and pay unreasonable demands in the current jury climate. Worries about publicity and reputation damage may influence a physician or an organization into an emotional response.

However, settling defensible cases above fair and reasonable value may exacerbate the problem and result in:

• Raising the bar for all settlement demands with a lottery-type mentality
• Increases to the frequency of claims
and lawsuits
• Increased premium costs
for policyholders
• Increased health care costs
for all

Our harm event and claim management philosophy

Our philosophy begins with a simple step: Report your unanticipated outcomes to us as soon as they occur so we can launch our early intervention program, HEAL.

After you report, we can quickly conduct a thorough event analysis, which will aid in determining the next steps. Our goal is to help reduce the amount of time that you experience stress or negative emotional impacts that adverse events may create for clinicians, so you can continue to provide excellent care. If the case progresses to a lawsuit, we will continue to help protect the reputation of your clinicians and care teams by partnering with the best attorneys to defend your organization. 

We do what’s right.

Our responsibility to the patient, senior living resident and family is to make them whole following a harm event—if there were issues with the care.

Our responsibility to our customer policyholders is to defend their care when excessive, unreasonable demands are made and to fairly compensate the patient, senior living resident and family if there are issues with the care.

Constellation’s early intervention program, HEAL, provides healing benefits for care teams and organizations because we truly believe that what’s good for care teams is good for business.

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