Editorial. Out-of-court system: a fair fast track to savings of time and money [editorial]

Sandeep Kandregula, Bharat Guthikonda
2020 Neurosurgical Focus  
L itigation and lawsuits are very common events in the career of a neurosurgeon. Nearly every neurosurgeon will be involved in at least one malpractice claim in their career; sometimes these claims will be frivolous. 1 More often than not, the litigation in neurosurgery will be in cases of spinal surgery, where the patient's expectations and the actual outcomes are often disparate. There is often a disconnect between how the patient expects to be after surgery and the common surgical outcomes.
more » ... surgical outcomes. 1-3 Although sometimes inadequate care or fault in the treatment does occur, the majority of the claims seen in spine surgery cases are due to a heightened functional outcome expectation and the impact of the known or unexpected complications on the patient's personal or professional life. 4 Neurosurgeons and all physicians experience significant emotional, physical, and mental sequelae from malpractice claims. As a result, malpractice litigation is one of the most frequent causes of physician burnout and the practice of defensive medicine. Compared with other medical specialties, neurosurgery often has among the highest malpractice insurance premiums and indemnities paid per claim. 5 The amount of time and expense for resolution of malpractice claims is quite significant for both parties. A variety of malpractice reforms have been enacted to avoid frivolous litigation. These include tort reform, medical review panels, and filing fees. These reforms are intended to provide a fair and efficient solution that protects patients who have fallen victim to malpractice while at the same time protecting physicians against the consequences of unwarranted litigation. Debono et al. studied the implications of an alternate judicial system in France called the "out-of-court" system. 6 This quick and efficient mechanism involves a twostage decision process. After a patient files a lawsuit, the Commission for Conciliation and Compensation (CCI) appoints a medical expert team that performs an indepen-dent review of the case. The CCI team formulates a preliminary opinion regarding the claim. They then finalize the decision based upon their review of the case details and the medical expert team's opinion. The CCI is chaired by a magistrate and includes patient welfare association representatives, insurers, and physician experts. The CCI is expected to arrive at a resolution decision within 6 months of the claim initiation, a timespan that is significantly shorter than the length of a standard court proceeding. If unsatisfied with the CCI's recommendation, the plaintiff has the option of proceeding to a traditional court hearing. 7 In the study reported by Debono et al., the authors analyzed 193 closed malpractice claims against private neurosurgeons practicing spine surgery in France. The average age of the patient was 51.1 years. Interestingly, one-third of the patients had a prior history of spine surgery (n = 54, 27.9%), and thus were known to be in a higher risk patient population than patients who had not undergone previous spine surgery. The lumbar spine was the most common (74.6%) location of surgery in litigation-involved cases and, surprisingly to us, lumbar discectomy (32.2%) was the most common procedure performed in these patients who initiated litigation. Following the conclusion of the first stage, when a decision was reached by the medical expert team, 34.2% of cases were found to involve negligence, 32.1% were found the be no fault, and the remainder were felt to entail strict liability or be the result of severe nosocomial infection. There were significant discrepancies seen between the findings of the medical expert team and those of the CCI. The CCI concluded proven negligence in only 13.5% of cases, compared with 34.2% according to the medical expert team. These discrepancies were likely due to the multidisciplinary input of the CCI and the delicate balance between scientific reasoning and other stakeholders' pri-
doi:10.3171/2020.8.FOCUS20764 pmid:33130624 fatcat:slw5ktrdjbasngln2ozlpjwyla