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Langham: Surgery Could Be b-b-b-b-b-Bad

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A Texas story in 2017 documented a tragic situation in which Dr. Christopher Duntsch performed some surgeries. Several patients did not enjoy the outcomes they sought. Two were rendered wheelchair-bound and others died. 

Judge David Langham

Judge David Langham

In May 2017, an ABC affiliate in Texas announced that another North Texas orthopedic surgeon faces lawsuits over allegations that "their lives have been ruined by a surgeon putting profits over patient care."

These allegations concern Dr. Stephen Courtney, who is said to have attempted to "profiteer off Pennington" (a now-deceased patient) by using Dr. Courtney's own surgical implants. Those implants were provided by Eminent Spine, co-founded by Dr. Courtney. The "company slogan on the website video is 'Bad to the Bone.'"

Some will connect that to George Thorogood's 1982 single by the same name. Others may remember the cover by ZZ Top. In the 1980s, many sought to be "bad to the bone." Of course, only one of these has a Texas origin (ZZ Top), which perhaps integrates into this Texas-themed post better.

In Texas, another patient contends that he was provided surgery by Dr. Courtney before the recommended "six months of non-operative treatment." He alleges also that "supplemental fixation" was not used in that surgery, despite his belief that "FDA guidelines" recommend fixation so the approved hardware "won't slip." In short, he claims multiple deviations from appropriate care. 

There will always be people who are not satisfied with medical care received. For example, Medscape on satisfaction among those who underwent total hip and knee surgery. Though physicians report that "at least 85% of total hip and knee patients have had completely successful procedures," only about 80% of patients "say they're happy." Statistics vary across practice areas.

Similarly, The Daily Mail reports that 1 in 5 plastic surgery patients are dissatisfied.

These are merely examples. The degree of satisfaction is also potentially in the wording used; "satisfied" and "happy" may be two different things. However, it appears supportable that some patients are not completely satisfied with their care.

Interestingly, the Texas patients who were not satisfied with surgery results sometimes acquiesced in further surgery with the same physicians to attempt alleviation of complaints. Bryan Taylor, who had surgery before the six months of non-operative treatment and had a device called "Python" implanted in his back, without fixation.

With ongoing symptoms, he underwent a second surgery with the same physician, again without fixation. Later, Taylor allowed the same surgeon to perform a third unsuccessful surgery on his back. He ultimately came under the care of a different physician, who performed a fourth surgery to remove the "Python." Mr. Taylor is not the only patient who underwent multiple surgeries.

This may raise questions about surgery in general. But, there is a specific focus on surgery to install hardware licensed by or produced by the surgeon.

The ABC affiliate has reported that there is "a 2013 report by the U.S. Senate Finance Committee staff" that questions the appropriateness of physicians implanting "their own devices," a practice known as "physician owned distributorships." The report contends that physician owned distributorships "present an inherent conflict of interest that can put the physician's medical judgment at odds with the patient's best interests." Perhaps this could be better phrased as putting the physician's financial interest at odds with the patient's health interest.

A 2013 report by "CBS This Morning" referred to this practice as "surgeon salesmen." That report also alleges that "financial incentive caused" a physician to perform "a riskier procedure than necessary." The allegation is that this "riskier" surgery allowed him to "put in more hardware."

That allegation involves hardware, but a similar complaint might be about surgery generally, which might be "riskier" than non-surgical intervention for maladies. Perhaps the risks associated contributed to the recommendation cited above for "six months of non-operative treatment."

Surgery is prevalent in U.S. health care. According to To Your Health, there are about 500,000 inter-vertebral disc surgeries in the U.S. annually. And, "as many as 90% are unnecessary and ineffective."

Let that sink in a moment: 90% equals 450,000 allegedly unnecessary surgeries. According to an admittedly dated 1994 study, the rate of back surgery in the U.S. is "at least 40% higher than any other country." To Your Health reports that the least expensive of these surgeries are about $18,000 and the more expensive procedures range up to $44,000.

Think about that — 450,000 surgeries at $18,000 each. That is at least $8.1 billion in back surgeries annually, which are allegedly "unnecessary and ineffective." So what? It does not work, but at least it costs a lot of money?

Returning to the Texas story, it notes that there are also even more serious allegations elsewhere. Patients in Wisconsin and California have alleged that a medical device company "knowingly produced and manufactured fake, knock-off implantable hardware" that was placed in more than 100 patients. A current lawsuit alleges that patients cannot be sure that the implants in their bodies are not counterfeits. As bad as the success rate is with tested and licensed hardware being used, it is possible that results may be even less satisfactory when unapproved materials are used.

The prosecution in Texas will be interesting to watch. The physicians may be found culpable, or acquitted. It is important to remember the old "innocent until proven." But, it is also important to realize that there are dissatisfied patients out there. Many have recommended being wary of medical care and asking questions of a doctor recommending a procedure or course of care. Perhaps that advice is as apt, or more, when the care involved is surgery.

A patient can ask questions about surgery. What are the alternatives? What are the potential complications? How many of these surgeries have been performed (is it new and innovative, or an old standby)? How many procedures has the recommending doctor performed? What are the perceptions of patients to this recommended care (both in the nation and in this particular doctor's practice)? Will hardware or special equipment be used in the procedure? Does the recommending doctor have any financial interest in the equipment or hardware manufacture or design? Has the manufacturer of equipment, hardware or medication ever provided any gift or payment to the recommending doctor?

Perhaps the most worthwhile step for a patient facing any course of care is the second opinion. The cost is simply not that significant. Even if payment is not covered by insurance, it may be worthwhile to schedule an appointment with a doctor not affiliated with the recommending surgeon. The patient should take the medical records and diagnostic tests to the second opinion. Ask about the recommended procedure or treatment, the success rates, complications and raise your concerns. Make an informed decision about whether the proposed care is in your best interest. After all, the patient will be the one who must live with the outcome.

The Texas patients cited in these stories are not satisfied with their results. Some are now using wheelchairs, and others have died. It is the patients who will live with the results of the medical care they underwent. Patients should ask questions and make informed decisions. It is entirely possible that what is advertised as "bad to the bone" might instead just be "b-b-b-b-b-bad."

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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