Home Forums Other Specialities Medico Legal Topics & Ethics Durotomy and Litigation

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    One of the complications during spinal surgery is to cause a tear of the dura covering the spinal cord. In many cases this could lead to the patient suing the surgeon for malpractice.

    A study in the journal Spine, published by Wolters Kluwer indicates that most malpractice cases associated with dural tear end in a ruling which favours the surgeon. However when the tear is detected late or causes more-severe injury the court will rule in favour of the patient.

    The study involved a search of three legal databases. The researchers identified 48 malpractice cases involving “incidental durotomy” during spinal surgery. Incidental durotomy refers to unintended tears or puncture of the dura mater. When promptly recognized and repaired, they generally cause no long-term problems.

    However, complications can ensue if the dural tear is not repaired, or if it reopens after surgery (dehiscence). The researchers evaluated the outcomes of malpractice cases involving incidental durotomy, and factors associated with the way the case was decided. All 48 cases were resolved by verdict or settlement.

    There were 24 men and 24 women, average age 55 years. Allegations included the need for additional surgery, delayed diagnosis/treatment, and/or improper durotomy repair. Injury severity included weakness in about 60 percent of cases and paralysis, brain damage, or death in 20 percent.

    56 percent resulted in a verdict in favour of the physician or surgeon (defendant). That included more than 80 percent of cases not involving neurologic complications. The remaining 44 percent of cases were decided in favour of the patient or family (plaintiff). A decision favouring the patient was more likely in cases where there was a delay in diagnosis/treatment, 62 percent; or improper repair, 73 percent. The average amount paid where the case was decided for the patient was about $2.8 million (in 2016 adjusted dollars). Male plaintiffs were more likely to receive a favourable decision.

    The findings suggest that, from a legal standpoint, surgeons should not consider durotomy “an entirely benign event.” They are more likely to avoid litigation where a dural tear is promptly recognized and treated, and when durotomy causes minor, non-neurological injuries.

    The lead author is Wesley M. Durand, ScB, a medical student at Brown University, Providence, R.I.

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