I have never been found guilty of malpractice but I have settled several cases brought against me. Settlements are made to avoid the steep costs of litigation, not as any admission of guilt. The debacle of the malpractice environment in this country was made quite apparent in a 2011 article from the New England Journal of Medicine that reported neurosurgeons to be the specialty most at-risk for facing malpractice suits *.
This is not because more neurosurgeons are bad doctors than are found in other specialties, but has to do with the treacherous and often life-destroying situations we are called to help our patients and their families face (head and spinal cord injury, brain tumors, ruptured aneurysms, stroke, etc.). That study painted a stark reality for neurosurgeons in the United States: on average, expect a lawsuit every five years. In a lifetime career, don’t be surprised to encounter several lawsuits, especially if you deal with more difficult cases. My father, a global leader in neurosurgery and one of the kindest and most respected people I ever knew, faced three lawsuits (like me, he was never found guilty).
One article in particular tried to attack my integrity through a distorted and incomplete presentation of one such lawsuit. (See ** below for rebuttal of Esquire article). The author’s (Luke Dittrich) most damning assertion of my career as a neurosurgeon concerned a specific malpractice case in which I was involved. By his account, I operated on a patient’s cervical spine at the wrong level, then altered the operative note to reflect the actual operation in an effort to cover up the surgical error. The author noted that I “finally confessed” the error to the patient on his third post-operative visit, only to face a $3 million lawsuit from the patient a year later.
The facts behind the case reveal a more complete picture, quite opposite to that presented by Dittrich. The patient had presented with radiographic evidence of three adjacent levels of abnormality (C45, C56, C67), but my assessment based on his symptoms indicated that the middle of the three levels (C56) was the actual culprit. One principle of spine surgery is to address the patient’s symptoms and neurological signs in deciding what level might need surgical correction, with the radiographic abnormalities helping to guide that effort (though not the primary evidence dictating the surgery). Thus, my surgical goal was to decompress and stabilize the C56 level only, expecting that would alleviate his symptoms.
After the operation, the patient reported excellent relief of his symptoms. Most such operations are successful in fixing the problem, so that came as no surprise. I routinely performed an X-ray at that follow up visit just to check the integrity of the stabilizing bone graft. Checking this X-ray after the patient had left my office, I found that I had operated at C45, one level above the intended C56 level. I was shocked that such an operation had relieved his symptoms so perfectly, because it called into question my surgical reasoning that had led me to target C56 in the first place.
I knew that patients could have a strong “placebo effect” from surgery alone, so my plan was to reassess him in follow-up to determine whether his relief of symptoms was due to placebo effect as opposed to a bona fide surgical benefit. After follow-up confirmed a true surgical benefit, I discussed the situation with my neurosurgical partners and hospital attorneys to lay out the best way to proceed with informing the patient. I reasoned that even if he had benefitted at this point, that he might well come to need decompression of that C56 level at some time in the future. The hospital agreed with me that the patient should not have to pay for such a procedure if he redeveloped symptoms, so my plan was to inform him of the wrong level surgery and offer to cover all expenses if he ever needed that C56 level decompressed.
With plan in hand, I had my office schedule the appointment for this discussion with the patient. He was doing so well, back at work farming, that he skipped the appointment, necessitating yet another follow-up call to bring him in for full disclosure.
“Doc, I’m doing fine,” he insisted after I had explained the entire issue of having operated at an unintended, but apparently effective, level. “I don’t need any more surgery. You’ve done fine.” I believe my extensive explanation of our financially covering any additional surgery, even if he chose to have it done elsewhere, led him to pursue a malpractice suit.
Of course, one problem that the malpractice attorney originally faced was that the patient had done so well after my operation. Even knowing of the surgical error, it was hard to argue with success. Hence the attorney created a negative spin of my correcting the surgical note (which was just my effort to reflect the actual facts of the case as they became known to me) to imply an intentional cover-up, allowing a charge of “fraud.” Dittrich had found this concocted accusation in the plaintiff’s court records, and used it as the basis of his distorted version of events. But interpreting it as a cover-up was illogical and egregious, given that I was the one who revealed the surgical error to all parties – it was not discovered by anyone else. That fact has never been disputed, and is crucial to understanding my overall integrity in the case. Some of my colleagues questioned whether I shouldn’t have kept quiet and said nothing.
This case, like all such questionable cases, resulted in detailed investigations by numerous agencies, including all state boards where I held an active medical license (those of Virginia, Massachusetts and North Carolina) and the American Board of Neurological Surgeons. I was exonerated by all investigating groups after paying a fine concerning medical record-keeping, and attending a weekend CME course that addressed such issues. Proper protocol indicates that I should have dictated an addendum to my original surgical note, as opposed to correcting the facts about the actual level of surgical decompression in the original surgical report. I also should have informed the patient immediately, instead of monitoring his progress to verify true surgical benefit as opposed to placebo effect.
The lawsuit settled for ~20% of the original ask, certainly not a payout acknowledging “malpractice.” As stated previously, settlements are made to avoid the steep costs of litigation, not as any admission of guilt. I continued with my state medical licenses and board certification fully intact. That was not a truth Dittrich wanted to reveal, thus he painted a false picture of my being a failed neurosurgeon to enhance his accusation that I made up the entire story presented in Proof of Heaven for financial gain. The odd thing is that he knew many of these facts about me, based on our interviews, but never included any of it in his story.
* NEJM article  on malpractice rates by specialty:
** Robert Mays’ rebuttal to Luke Dittrich’s Esquire article: