Neurosurgeons, who specialize in the surgical treatment of diseases and injuries affecting the nervous system, are frequently called upon to consult and testify as expert witnesses in medical malpractice cases. Neurosurgeons may speak to the standard of care for cases stemming from misdiagnosis of brain tumors, mishaps in neurosurgical procedures, or strokes requiring surgical intervention. They can also be invaluable to many types of personal injury cases, including those involving cranial/spinal injuries, trauma related to motor vehicle accidents, and falls.
The scope of a neurosurgeon expert witness’ case review, expert report, and/or testimony will largely depend on the particularities of the injuries sustained as well as the circumstances of the case. In this post, we examine the best ways to work with neurosurgery expert witnesses.
When to Use a Neurosurgeon Expert
Neurosurgical procedures can include spinal fusion, craniotomy, ventriculostomy, pallidotomy, trepanning, cranioplasty, anterior temporal lobectomy, laminectomy, thalamotomy, hemispherectomy, decompressive craniectomy, sympathectomy, bilateral cingulotomy, lobotomy, and more.
Cranial (head) injuries can include an intracranial bleed (hemorrhage and/or hematoma), a concussion, or traumatic brain injury. For example, when a patient passes away after a delay in treating or diagnosing an intracranial hemorrhage. If the emergency room physician failed to perform the appropriate diagnostic tests, then of course, the first choice for an expert witness would be an emergency room physician to establish liability. Once liability is established, it is appropriate to retain a neurosurgeon to opine on causation and damages. A neurosurgeon can comment on whether or not an earlier diagnosis would have afforded the ability to evacuate the intracranial hemorrhage or hematoma.
Spinal injuries can include a spinal fracture or spinal surgery complications (e.g., paralysis or foot drop). In a case that involves surgical malpractice, neurosurgery expert witnesses can speak to the standard of care for the surgery itself, any deviations in how the surgery was performed, as well as causation and damages. Other instances of spinal complications that a neurosurgeon can opine on include tethered spinal cords and congenital defects.
There are two types of stroke: (1) ischemic stroke, which is caused by a clot that develops in the brain, and (2) hemorrhagic stroke, which occurs when there is massive bleeding in the brain that causes pressure and resulting death of brain tissue. Neurosurgeons are not required to be consulted in every stroke case; a neurosurgeon expert witness may be appropriate for a hemorrhagic stroke when a large collection of blood collects underneath the skull forming a hematoma, or when ischemic strokes require a mechanical thrombectomy, a procedure that involves surgical intervention with a medical device that retrieves the clot to restore blood flow to the brain.
Not all fall patients require neurosurgical evaluation, however, in cases where a plaintiff falls and develops intracranial bleeding (bleeding within the brain), a neurosurgeon may be consulted to see if surgical treatment of the bleed is required. Selecting the right expert witness for a fall case will depend on the injuries and imaging that was conducted at the scene. If a neurosurgeon was consulted, a neurosurgery expert can provide a critical perspective on your case.
Motor Vehicle Accidents
Motor vehicle accidents are a great example of cases for which a neurosurgeon might not be the first expert witness that comes to mind, but could prove incredibly beneficial to the case. If a plaintiff in a motor vehicle accident case needs neurosurgical intervention as part of their clinical care, it would be helpful to have a neurosurgeon weigh in for damages, examine the care of the patient received, and comment on the patient’s prognosis. Another example could be a plaintiff who suffers from persistent lower back pain following a motor vehicle accident. In this case, a neurosurgery expert could perform an independent medical examination (IME) and confirm the plaintiff’s damages.
Because the stakes of neurosurgery are much higher than in other specialties of medicine, informed consent is critical. Neurosurgeons treat very serious conditions and perform procedures that have a high risk of complications — complications that can happen in the absence of negligence. It is important for your neurosurgeon expert to have access to any documentation that details whether the treating surgeon discussed the benefits, risks, and alternatives of the procedure with the patient. If you’re able to prove that clear negligence occurred on the part of (1) the neurosurgeon during the surgery, (2) the hospital, or (3) the patient’s postoperative management team, then you have a strong case.
When a Neurosurgeon Expert Isn’t Necessary
Knowing when you don’t need a neurosurgeon to review or testify as an expert can be just as important as knowing when to use one. In many cases, attorneys may find orthopedic spine surgeon expert witnesses to be just as helpful as neurosurgery expert witnesses.
Other than operating on the brain itself, in general, orthopedic surgeons perform many of the same procedures that neurosurgeons do when it comes to spine surgery. In a medical malpractice case, of course, the expert’s specialty is critical to the credibility of the testimony. But in certain personal injury cases, an expert orthopedic surgeon, or even an expert nurse, might be an excellent substitute for a neurosurgeon, particularly to discuss damages.
The Cost of a Neurosurgeon Expert
If cost is a concern, retaining an orthopedic surgeon expert in lieu of a neurosurgeon might be the best move. Our 2018 Expert Witness Fee Report found that neurosurgery experts continue to be the most expensive expert witnesses in the country, with a “combined fee average” of $959.68. Neurosurgeons tend to be a bit more expensive than orthopedic surgeons (whose “combined fee average” comes out to $848.95).
If your case involves a procedure that can only be performed by a neurosurgeon, however, it makes sense to spend a bit more money for the right expert in order to avoid the case going to trial. “When it comes to neurosurgery cases, you have to invest in retaining the most qualified expert,” says Zachary Barreto, Vice President of Strategic Research at Expert Institute. “Because neurosurgical injuries are so catastrophic, they are worth the most money spending. If your case is strong, you will make that money back in a hefty verdict or settlement.”
Selecting the Most Qualified Neurosurgeon
Ultimately, what separates one neurosurgeon’s expertise from another is the number of surgeries they have performed.
Zachary Barreto, who has recruited neurosurgery experts for more than 200 medical malpractice and personal injury cases, encourages attorneys working on neurosurgery cases to look for neurosurgeon experts that have a track record of excellence performing the procedure at the heart of their case. “Sometimes, a neurosurgeon could be the head of a division at a prestigious medical center and not even see patients anymore, or only see them rarely. If you have the choice between a neurosurgeon with a prestigious title and less patient-facing time or a neurosurgeon who performs the operation in question one hundred times a month, then the surgeon who performs the procedure more is always the more qualified expert.”
John Lomicky, Market Response Representative and former Associate Director of Strategic Research at Expert Institute, also cautions attorneys to make sure the neurosurgery expert they retain is actively practicing not just medicine, but the particular procedure involved in their case. “If the surgeon you are looking to retain has avoided a particular procedure, make sure that their avoidance is coherent with your theory of liability. Perhaps the procedure at issue is too risky for a given patient group. On the other hand, it could be that the surgeon does not specialize in that particular procedure.”
According to Dr. Mariam Ghantous, a Medical Research Manager at Expert Institute with fellowship training in neuroscience and neuroimaging, an ideal neurosurgery expert witness would also be at least five years out of their fellowship training with experience doing medico-legal consulting. “I look for neurosurgery experts that have experience conducting case reviews and doing depositions so that I can give the attorney a combination of someone that is well-credentialed, academic, and familiar with how to comport themselves on the stand.”
In the case that you are choosing between two neurosurgeons with the same amount of experience performing the surgery at issue, determining the more qualified surgeon will come down to their academic backgrounds — Did one of the experts attend an Ivy League medical school? Which expert had the more prestigious fellowship? Has one expert published more than the other? These markers of prestige will help establish an expert’s credibility to a judge and jury.
Challenges When Recruiting Neurosurgeons
Research veterans at Expert Institute admit that it’s no easy feat recruiting the perfect neurosurgery expert witness.
The neurosurgical community is not as big as one might think. According to the American Association of Neurological Surgeons’ report on the neurosurgical workforce, there are only about 3,689 practicing, board-certified neurosurgeons that serve over 5,700 hospitals across the United States. In addition, because the neurosurgical community is so small, many neurosurgeons are not comfortable testifying against one another. “Often times, we’ll get in contact with a very qualified expert candidate, but once the candidate finds out who the defendant is, they say ‘I won’t go against that surgeon — we were in a fellowship program together,’ or ‘That surgeon directed my university program,’” recalls Zachary Barreto. As a result, finding neurosurgeons that are willing to engage in expert witness work involves contacting many top dogs in the field from across the country.
John Lomicky also notes that neurosurgery is a highly litigious area. Many neurosurgery experts find themselves fatigued by the volume of cases, and may have even found themselves targets of suits.
Selecting Relevant Medical Records
Some neurosurgery cases can include thousands of pages of medical records, rendering the determination of the most appropriate records to send for a neurosurgeon expert to review a daunting task.
Dr. Ghantous suggests focusing on the theory of liability. “If the liability is specifically related to the surgery, filter for the operative notes and anything leading up to the procedure, for example, if the patient was screened, or if the anesthesiologist said the patient was safe for surgery.”
Dr. Tuan Nguyen, a Medical Research Associate at Expert Institute with residency training in psychiatry and research experience in cognitive neuroscience advises, “A neurosurgeon’s hourly rate is very high, so a good practice is to have a nurse review the records beforehand and remove any unnecessary pages. If your neurosurgeon expert has to sift through irrelevant records or duplicated data, that is going to cost you more time and money.” Dr. Nguyen also suggests that neurosurgeon experts start with the operative notes and discharge summary to get an overview of the patient’s condition.
If you are unsure whether a neurosurgery case has merit and you are hesitant to hire an expert witness prematurely, Expert Institute offers medical record reviews and phone consultations with in-house MDs to screen for meritorious cases and determine the right expert(s) according to the case’s liability, causation, and damages.
Establishing a Strong Attorney-Expert Relationship
If you are considering retaining a neurosurgery expert witness, the most important aspect of any attorney-expert relationship is establishing a good rapport with your expert from the start. With neurosurgeons in particular, due to the nature of their work and the scarcity of experts in their field, they are incredibly busy. As a result, neurosurgeons are notoriously difficult to get in touch with, likely because they are inundated with patients.
When you are working with them, make sure to use their time wisely. Always be prepared with the proper medical files and questions to avoid wasting time — it is both expensive for you and it causes strain in the relationship. And of course, as much as possible, clarify your expectations at the onset of your relationship to avoid any misunderstandings.