JAMA: back surgeries overprescribed

by Walter Olson on April 9, 2010

Commenter “Anonymous Attorney” writes:

Part of the litigation explosion includes every other person with a back injury claim being sent for invasive “fusion” or other drastic spinal surgery. Of course, defendants, often through insurance, foot the bill for these very expensive procedures. In my time I saw dozens of cases involving, say, a 5-mph fender bender that resulted in these surgeries. It was almost as if plaintiff attorneys and doctors worked together to push them through because they would multiply damages 5-fold for the lawyer, and of course the doctor gets paid handsomely, too. The cost of some surgeries can approach $100,000. A few doctors were known for never seeing a patient who didn’t “need” these surgeries. Courts and juries, of course, take anything a doctor says on its face, and so they’d go along.

A study in JAMA now confirms these are grossly overprescribed and often a really bad idea, medically. Note that this particular study excluded patients admitted as a result of vehicle crashes or with vertebral fractures or dislocations, which nonetheless leaves many other injuries that can fit the pattern: slip-falls, workers comp back strains and so on. I think it’s safe to say that if the JAMA authors ever do a study looking at car crash plaintiffs, they’ll make similar findings.

By the way, the New York Times actually beat JAMA to the punch on some of this, like the doctors owning financial stakes in the surgical equipment companies.

{ 6 comments }

1 David Sugerman 04.09.10 at 11:24 am

Tell me you’re kidding. I’ve been a trial lawyer for 24 years, and I don’t know any attorney who would push an injured client into surgery for several reasons. First, surgery is a form of trauma with varying levels of risks to the patient. That patient is my client, and my clients come first. You seriously think that I would somehow push for unnecessary surgery for my client, with all of its attendant risks? Wow.

On a much more prosaic level, any suggestion that plaintiff’s counsel is involved in influencing medical care is the equivalent of an IIED for the plaintiff’s case. Any trial lawyer with any sense avoids that set up. Insurers love to go to trial when they think they can find any hint of a taint attributable to the plaintiff’s attorney.

And of course there’s the false premise at the start of a litigation explosion. Except for businesses suing businesses, civil case filings are mostly down. Some explosion.

I don’t mean to suggest that the studies are incorrect. I suppose it’s quite possible that it’s something as simple as greed motivates that. My intuition is that something different is going on. I imagine that the more likely dynamic arises from the nature of identity. Surgeons are trained to find surgical problems. Every patient with back problems that presents to a surgeon is a potential surgery. Surgeons are trained to believe to their core that they heal. Thus, I assume there is an inherent tendency to push forward.

2 Invid 04.09.10 at 11:02 pm

David, I’ve been an attorney for about 2 years and already come across people getting unnecessary surgery in order to help their legal position.

And I’ve seen people who were directed to specific doctors by their attorneys…and those doctors happened to determine that there were extreme medical issues that needed to be addressed.

I congratulate you on managing to practice for so long without encountering the joys of the typical attorney.

3 Anonymous Attorney 04.10.10 at 1:25 pm

Mr. Sugarman, I’m sure you’ve never pushed a client into surgery. And maybe “push” is too strong a word. These things often operate on winks and nods. But I can testify that in my seven years of civil defense, I deposed more than one injury plaintiff who told me that he visited the doctor AFTER visiting his lawyer. Not hard to connect the dots there. When I defended the City of New York, we suspected it often enough that a supervisor sent around an e-mail reminding us to ask whether the plaintiff had been referred to the doctor by the lawyer (even in the face of an assertion that this was privileged, which it surely isn’t).

I can actually see an on-the-ball plaintiff’s attorney like Eric Turkewitz saying something like “sure, I’ll ask my client if they’ve been treated, and I might be remiss in representing my client if I didn’t — it’s in his best interest to get full treatment for his injuries and maximum recovery.”

But the whole business, as one attorney I worked with commented, starts to look like a “self-licking ice-cream cone.”

4 Richard Feinstein 04.10.10 at 7:01 pm

I came upon this blog because a client asked me to Google the referenced study. He had 3 auto accidents in 5 years: as a passenger, then being rear ended while stopped at a traffic control, and then being run down while a pedestrian. He had severe back injuries in all of them but he never missed a day of work (other than for his several- level hemilamincetomy after the rear ending, and for other treatment) until he was slammed into and thrown onto the hood, into the windshield and then down onto the street in the pedestrian knock down.

He had significant treatment, including PT, medication, aquatherapy, acupuncture, epidural blocks, hemilaminectomy, morphine, and radiofrequency ablation. He was at maximum medical improvement just at the time he was rear ended while stopped. It was probably less than a 5mph impact, but was enough to undo completely his prior improvement.
He had great pain. He still kept working.
A year later he had the knock down and has not worked a day since.
He has been treated at a world class pain management center in Boston. His last treatment was implant of a subcutaneous nerve stimulation device. It was unsuccessful and was removed a week later.
Next week he will be seeing an orthopedic surgeon for evaluation of possible efficacy of spinal fusion.
I did not refer him to any doctor.
I have been practicing 36.5 years.
With that preface let me remark:
the instant study did NOT find that fusions are “overprescribed.” It reported, on limited data, that there was a 15 time increase of simple and complex fusions in ’02-’07 over mere “decompressions.” It found this based upon a notably elderly study population (all 66 or over; I am not sure if the median age was 75) and all data, apparently, based upon MediCare codes.
The study also found that there was great variability in medical treatment modalities, with a significant factor being physician predisposition/inclination.
It found greater complications with more complicated and extensive procedures.
The reporting also implicated comorbidity and absence of prior procedures as significant factors in the findings.
It reported that the efficacy of multiple or more complex procedures vs. decompression in cases without prior procedures is indeterminate.

The initial post by “anonymous attorney” is unsurprising given his defense background. If you are defending an insurance company (or municipality, or other deep pocket entity) it is an occupational hazard to see every claim as some malingering phony trying to take the money. It is an occupational hazard to suspect every injured person who saw a lawyer and subsequently saw a doctor of colluding to create a phony claim.
If Anonymous, Esq. complains of this problem it is largely one of his own creation: if a client comes to see me and says he was in a fender bender two days ago and pain has increased in his neck I will certainly tell them “You must go to a doctor and you must document your pain or an insurance company attorney will never believe you.”
Further, if someone shows up complaining of problems, I do not practice medicine and I will certainly tell them to see a doctor. Usually, if they don’t have a doctor, I tell them to go right to the emergency room. If I were asked for a referral I would probably mention 3 0r 4 doctors convenient to the client for them to decide.
MOST clients are not as sophisticated as Anonymous, Esq. MANY don’t know where to go or what to do. MANY do not have medical insurance. MANY do not have MedPay coverage or even know of it. You damn well better believe that part of my obligation to my client is to help them get necessary treatment, AND to ensure that their problems are documented sufficiently to present evidence in court as may come to be required.
Of course, anyone, and especially an attorney practicing personal injury law, OUGHT to know that PI filings are down, that there has not been any proliferation of PI litigation, and that it is not a real problem. No serious attorney is going to waste time on nonsense.
With regard to the gentleman with 2 years of extensive knowledge, I do know that it does happen that some attorneys will send a client to a physician with whom they feel comfortable to try and make something out of nothing. I do know that there are some classes of non-M.D. medical providers with the reputation of seeing patients interminably for soft tissue injuries and billing for repetitive treatment for years. I also know that neither of these problems is anywhere near as great as the problem of injured people being abused, mislead, and unfairly treated and denied by insurance companies.

The particular suggestion that the rate of increase in fusions over decompressions is related to Plaintiff attorney subterfuge is egregiously and wildly overblown and baseless. In fact, it is ridiculous.
Ain’t nobody going to have his body sliced and his bones fused because his attorney said it was a good idea. And you never heard of that happening first hand, either. My client first described above called me because he is AFRAID of having a fusion. After the failure of
the implanted spinal stimulation device to afford relief, and the failure of the many modalities of treatment attempted in the last 3 years, he is fearful that he may end up even worse than he went in if he has the irremediable step of vertebral fusion. I told him that nothing in the new study seemed to create any new basis for concern that did not already exist and to ask specific questions and get detailed answers when he sees the orthosurg next week.
Again I mention that the data used in the study is of an elderly population and that it is hard to know if it may be extrapolated to a working age population with private insurance. It also is unknown but feasible that greater refinement of surgical procedures and treatment of older populations is a major factor in the increasing use of more complex treatment. There has been a graying of America and an increase in medical knowledge and diffusion of such knowledge among that population, and an increase in older Americans of prominence being obvious and publicized in treatment of their medical problems: e.g.: Dick Cheney, Bill Clinton.
There is also the factor alluded to in an earlier post: When you only have a hammer, every problem looks like a nail; when you are a surgeon who believes that God gave us anesthesia so that surgeons could heal the ill, it is easier to feel that many medical problems look likely for surgical intervention.

The tort system is a dull blunt instrument. It is costly, wasteful, inefficient, untimely, unreliable, unfair, and problematic in its outcomes. As long as insurance companies fear neither government nor God, nor their policyholders, it is all we have to hold them accountable.

It is that possibility, of trial, which empowers settlement of more than 9 out of 10 claims, and the use of arbitration and mediation.

5 Jason Barney 04.10.10 at 7:22 pm

I’ve been adjusting claims for over ten years, and I have no smoking gun evidence that claimants’ attorneys direct their clients’ medical treatments but strongly suspect many do.

I called one claimant after receiving a “drop” letter from her attorney. Unsolicited, she explained to me her attorney pressured her to have knee surgery she felt was unnecessary. She said her attorney explained to her, in so many words, that he can’t make a profit unless she had the surgery. So, they decided to part ways.

I reimbursed the claimant her out of pocket expenses without a release and never heard another word. Too often, nice people finish last.

Yeah, I know, that’s only one anecdote. More information can be gleaned from a careful evaluation of the claimant’s medical records. My favorite doctor’s chart note: “Patient claims back pain, aggravated by litigation”.

Classic!

6 Ian Dorward, M.D. 04.14.10 at 10:35 pm

“A study in JAMA now confirms these are grossly overprescribed and often a really bad idea, medically.”

Actually, the article confirms nothing of the sort. Of course, I doubt you’ve even read it, or if you have, you clearly haven’t read it critically. The JAMA article reports on the rates of surgical procedures, their expense, and their complications. The article offers conjectures as to why there has been an increase in “complex spinal surgery,” including, thanks to their anti-surgeon bent, the financial issues at hand, but it fails to highlight the potential bias of observing a trend in technology that has enabled simpler anterior/posterior fusions, for which there is robust biomechanical evidence (though not a lot of clinical evidence, yet) of superiority. Also, pertaining to your claim that these surgeries are “a bad idea,” the article does not, in any way, evaluate outcomes beyond 30 days, and as such is wholly incomplete for informing any opinion about surgical results. To say that these surgeries are “a bad idea, medically” is entirely unfounded. The accepted standard for spinal surgery publications is to provide a minimum of 2 year follow-up; were this article to have been published in the spinal literature–or any publication without the anti-surgery bias of JAMA–it would have to have been accompanied by a disclaimer that it cannot, in any way, be used to reflect the ultimate value of the surgery from the standpoint of results.

We know that more extensive surgeries carry greater risk; this point stands to reason. It does not follow, however, that the surgery is not effective, or that the higher risk of complications is not worthwhile, if a more complex procedure results in improved outcomes long-term.

There are not randomized, controlled trials for most surgical procedures. Alas, this is the nature of surgery. Innovation outstrips exhaustive proof of efficacy. Also, surgeons are typically quite busy, and unlike Dr. Deyo (the author of the JAMA study) do not have hours upon hours every week to dredge up reasons why patients shouldn’t be cared for. Surgeons work hard to contribute to the literature, but the literature still lags behind their progress in patient care.

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