FRAUD AND PERSONAL INJURIES INVOLVING INTRAOPERATIVE NEUROPHYSIOLOGICAL MONITORING (IONM)

By: Rafael A. Llano, Esq.

Intraoperative neurophysiological monitoring (IONM) tracks changes in a patient’s nervous system to guide practitioners during surgical procedures involving the brain and spine. An experienced physician monitors neurophysiologic signals continuously during surgery for adverse changes, thereby reducing the risk of postoperative neurological deficit, such as weakness, loss of sensation, hearing loss and impairment of other bodily functions.

However, improper practices can jeopardize patient safety. In 2015, Carol Forte, Esq., of Blume Donnelly Fried Forter Zerres & Molinari, obtained a $5,450,000 settlement for a client injured as a result of improper surgical technique and inadequate intraoperative monitoring. The hospital did not provide a physician to interpret the monitoring as the surgery was occurring, and a compromise of the spinal cord during the procedure went undetected.

Insurers have also scrutinized intraoperative monitoring arrangements due to potential fraud. In Texas, “Aetna has sued hospitals and other facilities for alleged fraud involving out-of-network billing and kickbacks.” The insurer is concerned with arrangements where a referring surgeon has an ownership interest in a neuromonitoring company. Like Texas, New Jersey has an anti-kickback statute, barring any medical practitioner from referring a patient to a health care service in which the practitioner or his immediate family has a significant beneficial interest. N.J.S.A. 45:9-22.5.