“A ship in port is safe, but that’s not what ships are built for.”

Admiral Grace Murray Hopper (1906-1992),
American computer scientist and Naval officer

“Don’t be afraid to take a big step if one is indicated—you can’t cross a chasm in two small jumps.” 

David Lloyd George (1863-1945),
Welsh Statesman and Prime Minister of Great Britain from 1916-1922

Both of the quotes above come from bold individuals who have made lasting contributions. David Lloyd George was the only British Prime Minister who spoke English as a second language (Welsh being his first). Lloyd George was also responsible for introducing to Great Britain social reforms that had been developed in Germany over the preceding twenty years, including old age pensions, unemployment benefits and state financial support for the sick. Admiral Hopper was a pioneer computer programmer— we’re all familiar with many of the computer terms attributed to her. For example, after removing a moth that was impeding the operation of a room-sized, Mark II computer, Hopper remarked that they “debugged” the system. She also coined the term “nanosecond” and once quipped that, although she kept her mind open, it was “not so open that the brains fall out.”

The lives of these great individuals are useful models for many of the challenges that confront us today. Both came to be revered, but given language and gender issues, did not have an easy transition to greatness. Hopper and Lloyd-George teach us that the best path forward may require bold steps.

This issue of SpineLine examines both the scientific and socio-political state of spine care. We begin with Dr. Faciszewski’s President’s Message. This month, he discusses the importance of providing and demonstrating value in patient care. He quotes the 2006 Harvard Business School book, Redefining Health Care. Citing the policy failures of the 1990s and early 2000s, authors Porter and Teisberg recommend reimbursement based on the superiority and efficiency of the care delivered. There is little doubt that pay for performance and other federal projects increasingly seek to sync physician reimbursement with patient outcomes. In principle, value-based reimbursement makes perfect sense. Concerns remain, however. Similar to physician report cards, caregivers, in an effort to elevate their “scores,” will avoid complex cases or sicker patients. Additionally, we continue to have difficulties with sensitivities in outcomes instruments. Currently, fairly different treatment regimens are associated with similar outcomes. It could be that minimally invasive surgery and open spine surgery, for example, have similar outcomes. Alternatively, we may simply be unable to statistically identify the differences with outcomes measures currently available.

This issue also includes an Ethics essay on the Spine Match by Drs. Todd Wetzel and Scott Boden. Their column discusses some of the difficulties experienced by applicants to orthopedic spine surgery training programs. A number of attempts have been made to standardize the application timeline. The pressure of early job offers leads to ever earlier interviews and decreasing opportunities for prospective fellows to truly evaluate their training options. Well-meaning attempts to reform the process have been made in years past. These reforms lacked significant teeth and rampant cheating was the rule. The current fellowship match system has been in development for years and is based on widespread consensus among the programs and organized medicine. At SpineLine, we appreciate the efforts of those behind the reformed match and wish them great success. We must all stand behind them and maintain fairness to the fellowship applicants.

Regular SpineLine columns offer guidance for spine practitioners. In his Coding Q & A, Dr. William Mitchell uses vignettes to present coding methods for consecutive level procedures. This column focuses on difficult situations in which the surgery crosses an anatomic region, such as the thoracolumbar junction.

Another excellent case, a cervicothoracic facet cyst, comes to Radiology Rounds this issue from Jesse Bible and Dr. Jon Grauer at Yale.

A last minute loss of a critical contributor left us without our Invited Review. In response, we’ve included an article on spinal osteoporosis. This article focuses on the impact of osteoporosis on other spinal disorders. The next issue of SpineLine continues this piece with tips for fixation into the osteoporotic spine. An update on vertebroplasty, kyphoplasty and other forms of vertebral augmentation have been addressed in the past and are slated for an update in the future.

As this issue goes to press, the major political parties are holding their national nominating conventions. In their Advocacy column, Dr. Jeff Wise and Nick Schilligo outline differences and similarities between Senators McCain’s and Obama’s visions for the future of health care. From the outside looking in, the first question: how much change will occur? With Democrats in both the Oval Office and Congress, it seems possible that some reforms will be enacted. On the other hand, broad-sweeping proposals have been advanced in the past and steep resistance has been encountered due to powerful pharmaceutical, trial lawyer and insurance company interests.

A few trends seem likely:

• Health information technology: the government wants electronic medical records. They may help physicians convert or these costs may be fully passed on to the practitioners. 
• Outcomes and quality measures affecting reimbursement: changes are underway already. For common diagnostic groups especially, doctors will be required to document outcomes and complications. Those physicians unable to demonstrate quality care as defined by federal metrics will lose reimbursement.

Both sides seem amenable to tax credits and other federal measures to subsidize, at least partly, health insurance purchases for individuals and families who do not have coverage at work. Whether government assistance takes the form of buying pools, increased access to out-of-state markets, or newer catastrophic care-only products, some movement in this area is reasonably possible over the next four years.

Other changes seem less likely. Both candidates espouse some malpractice reform, although it seems unlikely that these measures will be undertaken at the federal level or as the result of the president’s influence. As physicians, it is reasonable to expect that the broadest, widest ranging reforms may not materialize for years or decades. Smaller, incremental changes are likely. We also know that a number of parties will attempt to influence these changes toward their group’s interests. We will compete against the insurance companies, lawyers and pharmaceutical companies for ever-scarcer resources. We should also be aware that we may increasingly be competing competing with hospital associations and other physician groups.

On a daily basis, we see the intrusion of federal mandates into our practices. The additional HIPAA paperwork is an example of an expensive, unreimbursed federal practice intrusion. The recent near miss of a 10% pay cut shows us how vulnerable we are and how we may not always find our allies in expected places. Seeing this, we should realize that we do not practice in a vacuum. We are obligated to defend our patient’s interests as well as our individual and collective interests. If we fail to participate energetically and contribute to this debate, our practices and our patients will suffer. Stay involved! Vote. Contribute to your PACS. Call or write your congressman or senator.

This issue’s Curve Countercurve is presented by Dr. Jeff Wang. He presents a patient with a history of uninstrumented C5-6 ACDF 10 years previously returning with both radicular and myelopathic complaints. Ultimately, the patient is felt to require a four-level decompression procedure. With an anterior predominant compression and significant radicular complaints, the case poses the question, “when is the off-label utilization of cervical BMPs justified?” As the discussants mention, multiple intercalated segments present require that multiple surface areas heal. In uninstrumented constructs, each level increases surgical destabilization and pseudarthrosis rates. Less well understood are the effects of plate stabilization on multi-level ACDF fusion rates. The availability of intervening vertebral bodies as fixation sites for longer anterior plates may improve on the mechanics of long strut fusions.

This case is very timely given the recent FDA warnings about cervical BMPs and a recent whistleblower suit against surgeons who are charged with promoting the off-label use of BMPs. Anterior cervical BMPs have been used safely in hundreds of cases. Given the potential for devastating airway complications and alternative fixation options (eg, front- back surgery), however, how much additional risk can be tolerated?

Most pseudarthroses risk only axial spine pain. Some risk devastating construct failure with graft retropulsion into the canal or anterior migration with airway occlusion.  What remains unclear from the literature is, how many of these complications are early and how many are late? Early displacements are more likely related to biomechanical problems and will not be solved by better fusion biology, whether from BMPs or allograft.

Dr. Yoon makes an excellent point about “poor tolerance” for additional, posterior procedures in elderly patients. Unfortunately, these frail, elderly patients are also the most likely to have poor bone, ligament and muscle quality. Thus, they are the most likely to have catastrophic failure of their anterior construct. As in this issue’s Invited Review, preoperative assessment of bone stock and appropriate, postoperative immobilization are critical considerations.

As with last issue’s case, reader commentary is invited. The reader survey from that issue revealed that the majority of readers selected decompression and fusion over interspinous process distraction in patients with stenosis and spondylolisthesis. In that survey, the first two questions combine as a polling science nightmare. The varied responses to similar questions reveal the mixed feelings the SpineLine readership maintains about interspinous process spacers. In my discussions with individual readers, the difference arose from the perception that the relative benefits of an interspinous process distractor were most reasonable when the patient could avoid a fusion procedure.

The practice aspect of these questions is addressed in this month’s Practice Management column. William Barrick, MD, discusses “Risk Management for Spine Specialists.” He notes, as might be expected, that neurosurgeons and orthopedic surgeons pay among the highest malpractice claims. Interestingly, the highest payouts for both are for “laminectomy.” In this setting, laminectomy includes various posterior lumbar procedures including fusion. In both cases, even with data going back two decades, the average payout was between $320,000-$390,000. The size of damage awards has been steady since 1991. The mean payout was $135,941 in 2001, up 8.7% from $125,000 in 2000.

Over 10 years, malpractice payouts have grown an average of 6.2% per year. That’s almost exactly the rate of medical inflation: an average of 6.7% between 1990 and 2001.

Dr. Barrick discusses the most common reasons for the suits. Interestingly, one of the more difficult cases to defend came in the form of unindicated surgery. In my area, some surgeons support their decision to operate by saying that they gave their patient the options and the patient chose to have surgery. Clearly, this approach does not “cover” the surgeon if the patient’s outcome is less than expected. Lawsuits will follow and, if the level of pathology is not severe, the case is very difficult to defend.

Dr. Barrick tells us that one way doctors can protect themselves is by thoroughly educating their patients as to the risks and, critically, the expected results of the surgery. There is no doubt that the terse and rude physician subjects himself to a higher level of risk than the caring doctor. I suspect, however, some plaintiff reports here are self-serving. When asking patients why they are suing their doctors, they rarely admit that they are looking for a “free lunch.” Dr. Barrick discusses, in brief, how to talk to patients who have suffered an unfortunate result. These discussions could merit a lengthy symposium alone.

As we went to press with this issue of SpineLine, I received a link to an excellent piece from The State of Medical Liability Reform: Summer 2008, from the Health Coalition on Liability and Access, available at www.hcla.org.¹ This report documents the regional and national impacts of the malpractice crisis. Most of the data below are excerpted from the HCLA report and should be mandatory reading for all spine specialists.

The HCLA reports that one third of orthopedists can expect to be sued in any given year. Practicing neurosurgeons are sued, on average, every two years. Most of these cases lack merit and, in 2006, only 1% resulted in a verdict for the plaintiff. Conversely, the average jury award has escalated from about $347,000 in 1997 to $637,000 in 2006. Despite the large majority that “go away,” these lawsuits still have significant impact. Even when the case is dismissed, legal costs average $25,000.

Data demonstrating the enormous impact of regional and national malpractice crises imply a chain of events ultimately limiting patient access to specialty care and a marked increase in the cost of that care. At the height of its malpractice crisis, Texas had 152 doctors per 100,000 people, sharply below the national average of 196. This level ranked Texas 48th of the 50 states in physician manpower. Then, the citizens of Texas passed Prop 12, an amendment to the state’s constitution which limits noneconomic damages in a medical lawsuit to $250,000. Since then, insurers have cut their rates almost a third.
So many doctors are flooding back into Texas that its medical board is facing a certification backlog. Underserved and poor areas have also recorded a physician influx. These reforms, called the “Texas Miracle,” have been so successful that they are serving
as a model for national reform.

The impact of malpractice exposure on physician access has garnered significant national media attention and the time seems ripe for broad scale reform. With an abysmal public standing, the Association of Trial Lawyers of America (ATLA) has changed its name to the American Association for Justice.

Have physicians made gains in the malpractice crisis? In some states, yes. Yet, “the plateau in premiums in 2006 may lead some to believe that the crisis has passed. In fact, rates have not subsided significantly but appear to have merely reached a plateau at or near historically high levels.”1 A number of states remain in crisis, including New York, New Jersey, Pennsylvania, Florida, Tennessee, Hawaii and Illinois. The trial lawyers have attacked the reforms and caps. Reforms passed in Illinois in 2005 were struck down by a Cook County Circuit Court in November of 2007 and are now going before that state’s Supreme Court. The first constitutional challenge to damages caps, brought on the grounds that the limit on noneconomic damages violates the US Constitutional guarantees of right to trial, due process, equal protection and right to petition, was recently filed in federal court in Texas.

Even more worrisome are recent dramatic expansions in a patient’s ability to sue their doctor. The Massachusetts State Supreme Court, for example, recently reinstated a suit contending that a doctor was responsible for the plaintiff’s death in a motor vehicle accident. The plaintiff argued that the medicines the doctor prescribed for hypertension resulted in his patient’s car striking and killing the pedestrian.

How about the candidates’ stances on malpractice reform? McCain has said that changes in the medical liability system are an integral part of health care reform. According to HHS, defensive medicine costs as much as $170 billion per year. He is on record in Iowa stating, “we cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards…” Just before their respective presidential campaigns, Hillary Clinton and Barack Obama co-sponsored legislation to improve access to care but did not call for limits on noneconomic damages.

In the current climate, the surgical fees garnered from any single case do not justify increased malpractice exposure. In a setting of spinal instability or progressive neurologic dysfunction, medical ethics require a rapid response to the patient’s needs. In the elective, office-based setting, on the other hand, spine specialists must consider the patient’s symptoms against the severity of their objective findings.

My advice for elective surgery in degenerative disorders:

• Once surgery has been decided, schedule another visit to go over the surgery itself. In the meanwhile, ask the patient to review written or web-based materials on their anticipated surgery. 
• Have the patient, especially those susceptible to family influence (perhaps younger and older patients) bring family members to presurgical meetings. For riskier  surgery, make sure you have discussed potential morbidity with several family members. Sometimes the patient will downplay risks to their family and, when problems occur, family surprise and anger goads the patient into litigation.
• When starting the conversation, begin with expectations, not risks. Many patients will shut down after hearing about cardiac risks, stroke or paralysis. Make sure the patient understands what the surgery is intending to treat (eg, leg pain but perhaps not the back pain).
• Ask the patient to enunciate, in their own words, their diagnosis, treatment options, and the risks and benefits of the selected option.
   

These measures take time, time that is currently not well reimbursed. However, given the costs of malpractice suits, this time may still be well spent. After the discussion above, the physician will have a good idea of which patients are demonstrating “red flags” that might make them a higher malpractice risk. Just as patients can choose their doctors, we too can choose our patients. Avoid:

• angry patients
• patients who have nothing but bad things to say about previous doctors
• patients with a number of active psychosocial stressors
• patients without clear concordance of objective exam and imaging findings
  with subjective complaints
• patients with narcotic needs exceeding physical exam findings.

Even if these patients may benefit from a procedure in the future, they do not need it right now. Psychological and counseling services are available but underused for these patients.

Reference
1. Health Coalition on Liability and Access. The State of Medical Liability Reform: Summer 2008. Available at: www.hcla.org