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Spine Surgery Litigation

By: Board Certified Orthopedic Surgeon

Medical litigation in spine surgery, as with any medical treatment, involves breach of standard of care, negligence, and causation. Although surgical treatment is an endeavor patients and surgeons naturally should go into with a common goal of improving the patients condition, adverse events can still occur. As surgery is a joint venture, requiring both the patient’s compliance and the surgeon’s skills, communication about expectations is a key component of the process. Attorneys on both sides of medico-legal cases should also understand what realistic expectations are after spine surgery, to better understand the merits of a case.

Surgery is always the last resort for treatment of a spinal condition. It is also the most definitive treatment. As such, surgery may be required earlier than later for a condition that is threatening the neurologic function of the spine, such as in the setting of trauma, very large disc herniations, severe stenosis, or spinal instability. In other words, the last resort may arrive sooner for some patients. For a patient with a purely degenerative spinal condition, the treatment is similar to that for an arthritic knee, which is to try everything from medications, bracing, therapy, injections, etc before resorting to surgery. However, if the above conditions exist, then these non-surgical steps may be skipped.

There are really two basic goals of spine surgery, with a lot of different surgical techniques to achieve them: 1. Decompress the neural elements of the spine from tightness (compression), and 2. Stabilize the spine to protect the nerves and eliminate pain coming from abnormal loading and movement of different parts of the spine (instability). If a reason for one of these two goals is not present during surgery, then the results of surgery are far less predictable. When the phrase “unindicated surgery” is used, it is usually used to refer to the lack of a reasonable identification of a problem that may benefit from one of these two goals. Many of the non-surgical treatments surgeons recommend for patients, in addition to being therapeutic tools (we hope it “cures” them) actually serve as diagnostic tools as well (to identify the exact causes, and whether they would benefit from the two goals of surgery).

Surgery for isolated Degenerative Disc Disease and Facet Arthropathy Disease causing low back pain alone (without symptoms going into the extremities) is controversial because compression or instability may not be clearly diagnosed. This may be because the problems may occur at a microscopic level, not easily seen on imaging studies, or largely inflammatory (i.e. structurally not conspicuous, but causing a lot of biologic irritation). The problem may be dynamic, occurring only when the patient is moving or loading the spine, which are not possible to diagnose with our static imaging techniques. In these situations, the treatment is based largely on the clinical judgment of the treating physician, and really is a last resort. The success rate of surgery in this patient population may not be as high as in cases of clear compression or instability, but may be higher than doing nothing at all with the patient suffering and medically worsening with time. There are patients with these two conditions who do very well after stabilization/fusion surgery, but there are also patients who continue to have trouble afterwards. This implies that this is not the fault of the surgery, but rather of the screening process of the candidacy of the patient. Management of expectations is very important in these cases.

Another important point is that perhaps unlike other surgical fields, a patient not getting better is not necessarily a failure in spine surgery. The spinal cord and nerves are tissues that are highly unpredictable in terms of effects of injury and recovery. A lot of times surgery is undertaken to arrest the deterioration of the patient’s condition, with just a hope of regaining normal function. We as physicians still do not understand spinal cord and nerve injuries completely, and surgery is usually done to create a better structural environment for the nerves, rarely being a direct treatment of the nerves themselves. After surgery on the structural aspects of the spinal column, the recovery of the nerves within is often a wait-and-see process.

Technically unsuccessful surgery is not necessarily breach of standard of care. For example, if the surgeon injures an anterior thoracic or abdominal organ while performing posterior spine surgery, that would qualify as breach of standard of care. However, if the patient develops a nerve injury after undergoing surgery of the spine, that is unfortunately a recognized possible adverse event during surgery, which requires dissection, retraction, and manipulation of the neural elements during surgery. Sometimes, once the neural function has taken the downward path to deterioration, this may continue before settling to a lower baseline after surgery. Moreover patients with these conditions may have a lower threshold for further nerve function compromise.

It should be understood that although surgery is the last and most definitive resort, that does not mean the surgeon can recreate a pristine spine. A reconstructed spine with previous injury is technically never good as a pristine spine, since the traces of the condition and the tracks of the treatment can never be completely eliminated or covered. The surgery itself is an inflicted injury. I usually tell my patients that rarely do patients feel completely pain-free forever. Even patients who are feeling fantastic after surgery, when probed about how they feel, will always admit things don’t feel the quite same as when they were younger and completely healthy. Success is when patients can perform the vast majority of activities that they desire, and don’t think about their discomfort very often. Each surgery, and any perceived or real adverse event, should be considered in its own merit.

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