Steven C. Laird
Jean Robb Hubert
Law Offices of Laird & McCloskey
1824 8th Avenue
Fort Worth, Texas 76110
817-531-3000
www.texlawyers.com
Introduction
Spinal surgery cases are complicated and difficult medical negligence cases. You must determine whether the facts of your case are strong. Causation is often at issue in these cases. You will need expert review to determine if the spinal problem that the client sought treatment for is what is causing their current problems or if medical negligence has contributed to their current problems.
Definition of Laminectomy1:
A laminectomy is a “surgical removal of the bony arches of one or more vertebrae. It is performed to relieve compression of the spinal cord as caused by a bone displaced in an injury, as the result of degeneration of a disk, or to reach and remove a displaced intervertebral disk. …Spinal fusion may be necessary for stability of the spine if several laminae are removed.”
Definition of Fusion2:
Fusion is “the surgical joining of two or more vertebrae, performed to stabilize a segment of the spinal column after severe trauma, herniation of a disk, or degenerative disease. Under general anesthesia the cartilage pads are removed from between the posterior parts of the involved vertebrae. Bone chips are cut from one of the patient’s iliac crests and inserted in place of the cartilage, fusing the articulating surfaces into one segment of bone.”
Who May Be Potential Defendants In Your Case:
Look at the people who were in the operating room at the time of your client’s surgery. Pay particular attention to the operative report, the consent form and the anesthesia record for obtaining the names and job titles of the persons involved in your client’s surgery. Persons in the operating room often include the following:
- Scrub tech
- Circulating Nurse
- Physician’s Assistant
- Anesthesiologist/CRNA
- Potentially a manufacturer’s medical device representative(Find out early, in case you need to add them in as a defendant.)
- Surgeon
- Assisting Surgeon/Resident/Intern/Medical Student
Medical Records:
Be sure to obtain all of your client’s medical records. Pay special attention to all of the client’s medical records pertaining to the original injury that necessitated the laminectomy/fusion surgery. Sometimes these patients have multiple spine surgeries, prior to and subsequent to the surgery in question. Make sure you obtain all of the prior surgery and post-surgical records. Areas to look for in the medical records include:
- Operative report
- Anesthesia records
- Consent Forms
- Progress Notes
- Physician’s Orders
- History & Physical
- Discharge Summary
- Medication record
- Radiological reports
- Nurses’ notes
- Therapy notes
- Office Notes
Discovery:
- How long had the physician gone without sleep?
- Get the physician’s surgical schedule for that day.
- Get the physician’s personal calendar and find out what the surgeon did the night before. (Had he/she gone to a big party and been drinking heavily?)
- How many of these types of surgery had the surgeon done before?
- What is the surgeon’s complication rate?
- Who actually performed the surgery? (You cannot always tell the whole story from the operative note.)
- Was the surgeon allowed by the hospital to perform this type of surgery?
In addition, don’t lose sight of the other people involved in the surgery, especially the anesthesiologist. Find out if there was an inexperienced resident involved in the surgery and specifically what that resident did. You may want to depose the nurses, techs, aides, physician’s assistants or similar individuals before you depose the orthopedic surgeon. Don’t forget, a manufacturer’s representative may have been at your client’s operation. Don’t assume that the surgeon performed all of the surgery. Often, a resident or even a physician’s assistant will close the patient.
Experts
Get your experts early. As soon as you have the patient’s medical records you will need to contact any subsequent treating doctors the patient has had, especially the client’s subsequent treating surgeon (likely to be an orthopedic surgeon or neurosurgeon). Find out if the subsequent treating physician has said anything to the family about the care of the physician and/or health care providers in question. Often this subsequent treater will be a local physician and will be hesitant to say anything against the health care providers in question. The subsequent treating physician will be a major player in your case and will be deposed or testify at trial for one side or the other. The subsequent treating physician cannot play himself as neutral. Either he will make statements that defend the physician in question or his statements will provide the plaintiff’s attorney with statements that can be used against the health care providers in question. In most cases, the jury will likely give deference to the subsequent treating physician.
Areas of expertise you may need to prosecute your case include obtaining the assistance of the following people:
- Orthopedic surgeon
- Neurosurgeon
- Neurologist
- Radiologist
- Life Care Planner
- Economist
- Rehabilitation physician
In summary, the experts you choose may be the deciding factor for the jury to decide for your client. Carefully select your experts.
Textbooks on Spinal Surgery That May Be Helpful:
Advances in Spinal Fusion (Kai-Uwe Lewandrowski, et. al., Marcel Dekker, Inc., 2003). (To be published October, 2003).
Advanced Spinal Surgery Technologies (Corbin, et. al., Quality Medical Publishers, 2003). (To be published November, 2003).
Anterior Spinal Column Reconstruction: Biomechanics, Rationale, and Techniques (Thomas S. Whitecloud, Lippincott, Williams & Wilkins, 2003). (To be published October, 2003).
Atlas of Orthopedic Surgery: A Guide to Management and Practice (Edward Vincent Craig, Parthenon Publishing, 2003). (To be published October, 2003).
Lumbar Interbody Fusion Techniques: Cages, Dowels, and Grafts (Regis Haid, ed., Quality Medical Publishers, 1st ed., 2003).
Outpatient Spinal Surgery (Mick J. Perez-Cuet, et al., Quality Medical Publishers, 2002).
Spinal Restabilization Procedures: Diagnostic and Therapeutic Aspects of Intervertebral Fusion Cages, Artificial Discs and Mobile Implants (Denis L. Kaech, Elsevier Science, 2002).
Laparoscopic Lumbar Fusion (John J. Regan, Quality Medical Publishers, 2000).
Surgery of Spinal Trauma (Jerome Cotler, et. al., Lippincott Williams & Wilkins, 2000).
Instrumented Spinal surgery: Principles and Technique (Jurgen Harms, et. al., Thieme New York, 1999).
Essentials of Spinal Microsurgery (John A. McCulloch, et. al., Lippincott Williams & Wilkins, 1998).
Textbook of Spinal Surgery-2nd Edition (two volume set) (Keith H. Birdwell, Lippincott Williams & Wilkins, 1997).
Techniques in Spinal Fusion and Stablization (Patrick W. Hitchon, Thieme New York, 1995).
Lumbar Fusion and Stabilization (K. Yonenobu, Springer Verlag, Inc., 1993).
Atlas of Spinal Operations (R. Bauer, Thieme New York, 1993).
2003 Leading Institutions for Orthopedic Care according to U.S. News and World Report.3
The Top 20 listed are as follows:
INSTITUTION CITY
- Mayo Clinic Rochester, Minn.
- Hospital for Special Surgery New York
- Massachusetts General Hospital Boston
- John Hopkins Hospital Baltimore
- Cleveland Clinic Cleveland
- Duke Univ. Medical Center Durham, N.C.
- UCLA Medical Center Los Angeles
- Univ. of Iowa Hospitals and Clinics Iowa City
- Harborview Medical Center Seattle
- Univ. of Washington Medical Ctr. Seattle
- Rush-Presbyterian-St. Luke’s Med.Center Chicago
- Stanford Hospital and Clinics Stanford, CA
- University of Pittsburgh Medical Center Pittsburgh
- Brigham and Women’s Hospital Boston
- Barnes-Jewish Hospital St. Louis
- Parkland Memorial Hospital Dallas
- Univ. of California, San Francisco San Francisco
- New York-Presbyterian Hospital New York
- Thomas Jefferson University Hospital Philadelphia
- Northwestern Memorial Hospital Chicago
Spinal Instability
The determination of spinal stability or instability is the critical decision maker in the treatment of spinal injuries.4 If the spine is unstable then surgical stabilization is implemented.5
Lumbar Spine:
Low back pain occurs more often than neck pain.6
The lifetime incidence of low back pain is 65%.7
Herniated disks occur most often at L4-5 and L5-S1 and account for 95% of all lumbar disk herniations.8 The initial diagnosis for herniated disk is ordinarily made on the basis of history and physical examination.9 The treatment for most patients with a herniated disk is nonoperative; 80% of them will get better with conservative treatment when followed over 5 years.10 With an acute herniation at least 2 weeks of rest will usually reduce the pain.11 “The long-term prognosis for the patient with disk herniation is quite good. It has been shown that between 85% and 90% of surgically treated and nonsurgically treated patients were asymptomatic at 4 years. Less than 2% of both groups remained symptomatic at 10 years. Surgery is indicated for patients with unremitting pain despite an adequate course of conservative treatment (usually 6 weeks). In the properly selected patient who has the appropriate history and physical examination with a confirming diagnostic study, surgery is over 90% successful in relieving leg pain.”12 There must be “unequivocal” evidence of nerve root compression by neurologic examination and radiographic data before surgery is done on a herniated disk.13
Multiple Operations on the Lumbar Spine14
It is no longer acceptable to do an exploratory back surgery when the necessary objective criteria are not present.15
15% of all patients who undergo an initial surgery will have significant disability and discomfort.16
“…[T]he initial decision to operate is the most important one. Once the situation of recurrent pain after surgery arises, the potential for a solution is limited at best.”17
Diagnoses that are amenable to additional spinal surgery: recurrent herniated disk; spinal instability & spinal stenosis.18 Diagnoses that are NOT amenable to additional spinal surgery include: scar tissue (arachnoiditis or perineural fibrosis); psychosocial instability (ex: alcoholism, depression, drug dependency) & systemic medical disease (ex: pancreatitis, abdominal aneurysm).19
Malpractice Fact Scenarios That May Indicate Negligence in Fusion/Laminectomy Cases:
- Operate at wrong level
- Nerve root not properly decompressed
- Initiating surgery too early, when more conservative therapy was appropriate
- Failure to recognize injury that requires fusion/laminectomy
- Improper performance of fusion/laminectomy procedure
- Staph infections
- Failure to provide appropriate follow-up
Pitfalls in Fusion/Laminectomy Cases:
There are many pitfalls in fusion/laminectomy cases. One of these pitfalls is when the patient has extensive pre-existing injuries making causation for the claimed injuries difficult to prove. In addition, other pitfalls include a patient that has a poor prognosis, even with a fusion/laminectomy, due to the extent of their back injury and/or the patient’s prior health history (ex: diabetes, morbid obesity, multiple prior back surgeries). With prior lumbar surgeries, “it has been shown that with every subsequent operation, regardless of the diagnosis, the likelihood of a good result decreases. Statistically, the second operation has a 50% chance of success, and beyond two operations, patients are more likely to be made worse than better.”20
1 Mosby’s Medical, Nursing & Allied Health Dictionary (5th ed. 1998) at 914.
2 Mosby’s Medical, Nursing & Allied Health Dictionary (5th ed. 1998) at 668.
3 America’s Best Hospitals, U.S. News & World Report, (July 28-August 4, 2003) at 112.
4 Orthopaedic The Essentials, (Mark Baratz, M.D. et al. eds. Thieme Medical Publishers, Inc., 1999 at 190).
5 Id.
6 Principles of Orthopaedic Medicine and Surgery, (Sam Wiesel & John Delahay eds., W.B. Saunders Company, 2001, at 474).
7 Id.
8 Id. at 476.
9 Id. at 477.
10 Id.
11 Id.
12 Id.
13 Id. at 481.
14 Id. at 482.
15 Id.
16 Id.
17 Id.
18 Id at. 482.
19 Id.
20 Id. at 483.
– Steven C. Laird, Law Offices of Laird & McCloskey,
1824 8th Avenue, Fort Worth, Texas 76110, 817-531-3000, www.texlawyers.com
