CHAPTER 38 Neurology and Neurosurgery
The scope of neurologic malpractice liability precludes a compendium of potential claims. Moreover, any such listing would be outdated before publication, as emerging diagnostic and therapeutic options open the door for new claims. It is, however, instructive to consider the most prevalent patient conditions generating suits against the neurologic practitioner (in decreasing order of frequency): back disorders; cerebrovascular accident; displacement of intervertebral disk; convulsions; headache (HA); epilepsy; migraine; malignant neoplasm of the brain; subarachnoid hemorrhage (SAH); and musculoskeletal disorders affecting the neck region.1
On the seventeenth visit, the patient described a more severe, nearly constant headache with “stabbing” pains in the occipital region and blurred vision. The neurologist referred her to a neurosurgeon who performed cervical spine radiographs (interpreted as showing minimal osteophytic changes at C4–5 and C5–6), and prescribed Elavil for “atypical mixed headaches with cervical spine disease” and “mild depression.” She returned to the treating neurologist with complaints of progressive visual impairment. The neurologist described a “normal neuro exam,” changed the Elavil to Paxil, and concluded “The neurosurgeon and I agree that the patient is depressed, which is contributing to her headaches, and the visual complaints are probably due to Elavil side effects.” The patient consulted another neurologist nine days later. Examination revealed papilledema, partial cranial nerve VII, VIII, and XII palsies, and ataxia. Imaging revealed a large acoustic neuroma. There were permanent deficits postoperatively. The patient sued the treating neurologist and consulting neurosurgeon for failure to diagnose a brain tumor, and the case settled for over $5 million.
ISSUES
The Common Ground
The most prevalent neurology misadventure is diagnostic error, and the most frequent incorrectly diagnosed conditions are brain tumor, followed by abscess, SAH, and other causes of HA.2 Neurosurgeons are most frequently sued for technical procedural errors and postoperative complications, although diagnostic and nonoperative treatment errors appear to underpin many successful claims. Technical surgical errors are usually straightforward, promptly recognized, and unpredictable. The mere occurrence of a technical error is not malpractice without additional evidence of substandard skill. Claims alleging such errors are generally not successful and, for the competent surgeon, there are few risk management protocols that would minimize these isolated events. Therefore, technical error claims will not be discussed. Postoperative complications include known risks stemming from each particular procedure, and claims frequently allege lack of informed consent. Informed consent guidelines are well documented in the literature, and they are discussed elsewhere in this Handbook.
Thus, the management strategies discussed in this chapter are equally applicable to the medical and surgical neurologist, focusing on the common ground of diagnostic and treatment error (hereinafter the term “neurologist” refers to both the medical and surgical specialist unless otherwise specified).
STRATEGIES FOR HEADACHE
General Considerations
HAs are ubiquitous, arguably the most common disorder encountered by the practicing physician, and the most common presenting symptom in malpractice claims against medical neurologists.3 HA may be of little clinical significance or, paradoxically, herald a catastrophic illness, such as brain tumor, SAH, or meningitis. A complete and accurate diagnosis of the HA patient requires a detailed history coupled with a full neurologic and general medical examination, as well as diagnostic testing and neuroimaging in selected cases.
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Specific Approach
Exclude Secondary HAs
Sudden Onset (Thunderclap) HA.
SAH warrants further discussion. More than half of patients presenting to the emergency room with a sentinel HA and SAH are misdiagnosed. The failure to diagnose this condition results in the highest average and highest total indemnity for all claims involving diagnostic error.4 The sine qua non of SAH is a sudden HA classically described as the “first” or “worst HA of my life,” and often associated with nausea or vomiting. The HA is usually followed by pain radiating into the cervical or occipital region, followed by meningismus as blood enters the spinal subarachnoid space. There may be focal neurologic deficits, cognitive impairment, or a history of premonitory symptoms suggestive of a sentinel bleed or expansion of an aneurysm. A thorough history of the HA is essential—even known migraineurs may suffer a SAH. The patient with a thunderclap HA must have immediate computerized tomography (CT) of the brain, and, if the CT is negative, a lumbar puncture (LP) to include measurement of opening pressure and testing for xanthrochromia. Some conditions such as venous or sinus thrombosis may not be evident on CT. It may be reasonable, based on the clinical history, sequence of events, and time of presentation, as well as CT and LP results, to proceed with MRA or angiography.
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