The practice of medical negligence law is complicated and detailed work. The lead attorney must integrate the patient’s medical history and case details with the expected standard of medical practice in any of multiple specialties. Additionally, they must convince the trier of fact that a health professional did or didn’t abide by the standard care. This is a daunting task as there a vast number of medical practices. The American Board of Medical Specialties (ABMS) certifies over 130 specialties and subspecialties. It is simply inconceivable for an attorney to acquire the knowledge of the standard of care in each specialty and subspecialty required to litigate a case of medical negligence.
The medical expert is the key solution to this problem. An expert sufficiently knowledgeable in their field is able to process the intricacies of the case and assess whether current standards of practice were followed.
One area of medicine that is infamous for the high incidence of medical negligence cases is neurosurgery. This is likely due to the inherent complexity and high-risk nature of the practice. In fact, the New England Journal of Medicine published a 2011 study that found that while almost every physician will face at least one malpractice claim in their career, neurosurgeons are several times more likely than pathologists or pediatricians to face a lawsuit.
An attorney litigating a case relating to neurosurgery will have to determine how to proceed with retaining a neurosurgery expert. Although the ABMS does not recognize subspecialties for neurosurgery, there is a non-ABMS Board with a definite path to certification for certain subspecialties. The most recognized subspecialty is Pediatric Neurological Surgery. Other areas of subspecialization in neurosurgery include Cerebrovascular, Functional, Spine, Trauma, Skull Base, Pain, Peripheral Nerve and the merged practice of Interventional Neuroradiology/Endovascular Neurosurgery.
The neurosurgeon chosen as an expert for the review of a case should be versed in the area of interest of the case. The typical general neurosurgeon in practice may indulge in most subspecialty areas of the specialty. In contrast, neurosurgeons in academia tend to specialize, practicing one or two fields only. Many neurosurgeons in communities across the country have to perform general adult and pediatric neurosurgery. However, it is uncommon to find neurosurgeons who simultaneously perform endovascular neurosurgery and many other subspecialties.
The neurosurgeon expert witness must be able to guide the attorney in the viability of a medical negligence action. For example, in assessing whether patient care fell short, the expert can determine if the injury at issue is a known possible complication with a poor outcome, an expectable undesirable poor outcome, or an unexpected poor outcome resulting from a bad practice. Due to the very nature of surgery in and around the human nervous system, the margin of error is very small. Unfortunately, rates of excellent and good outcome are also similarly low. This is a devastating reality as substandard practices may lead to undesirable and damaging outcomes. Such neurosurgical negligence is often irreversible and debilitating.
The American Association of Neurological Surgeons (AANS) was the first medical professional society to develop a set of guidelines for the proper behavior of expert witnesses. These guidelines are enforced within the AANS; several members have been suspended or otherwise sanctioned for the improper delivery of expert witness testimony. Although a suspension may not affect an expert’s medical practice, it can be detrimental to their work as a witness.
A quality neurosurgical expert should present the requesting attorney with an unbiased and scientific analysis of the case. An expert’s honest and detailed insight will enable the attorney to have a better understanding of the legal claim’s viability. The expert witness should be able to determine if negligence or substandard practice has occurred and simultaneously present possible defenses of the practice.
There is almost always a defense to a medical procedure or technique performed in neurosurgery. The field is marked by ambiguity, with almost every clinical scenario having multiple accepted approaches and “grey” decision making. Certainly negligent acts do occur. There are straightforward cases of neurosurgical negligence, such as where a surgeon leaves a cotton sponge in a patient. However, those are rare. The typical situation usually concerns a spinal operation where a misplaced pedicle screw causes immediate postoperative symptoms. Then the surgeon ignores the patient’s complaints for 2-3 days before performing new imaging and adjusting the hardware. The patient is left with permanent residual new symptoms and never returns to their prior functional state.
In assessing a claim of neurosurgical negligence, the neurosurgery expert should be able to assess how the surgeon performed the operation, managed the patient after the operation, and whether they appropriately dealt with any complications. Any aspect that doesn’t rise to the standard of reasonably acceptable practice may be grounds for the prosecution of a legal case. However, not all cases of unsatisfied patients are actionable cases of neurosurgical negligence. A neurosurgery expert who determines that the case concerns a low satisfaction from an expected low yield operation may save the attorney and client considerable resources in either prosecuting or defending the case.
The good expert can make that determination.
About The Author
EXPERT WITNESS E-000022
This extremely qualified, board certified neurological surgeon is also fellowship trained in his field. He is a member of the Congress of Neurological Surgeons, has published in his field, and performed major grant funded research. He holds high ranking professorships at his current institution, in addition to several hospital affiliations. His vast experience makes him capable of reviewing the case at hand.
B.S., Vanier College, Canada
M.D., McGill University Faculty of Medicine, Canada
Residency, General Surgery, Brookdale Hospital Medical Center
Residency, Chief Resident, Neurological Surgery, University of Miami
Fellowship, Research Fellow, Electrophysiology and Neurological Surgery
Board Certification: Neurological Surgery
Member, World Spine Society
Member, Congress of Neurological Surgeons
Member, American Association of Neurological Surgeons
Published, 6 abstracts, book chapters, peer-reviewed publications
Research, 1 current grant funded research project
Former, Faculty, Miami Neurosurgical Associates
Current, Assistant Professor at major college of medicine
Current, Clinical Assistant Professor at major medical university
Current, Neurosurgeon at major Florida group practice
Current, Affiliated Faculty at 4 major healthcare centers