One of the most common causes of litigation in the field of orthopaedic surgery involves the failed back surgery syndrome. Spine surgery is extremely common in comtemporary America and results are certainly not uniformly good. Although most published articles describe an 80% good/excellent result rate, personal experience by most physicians in the field suggests that the true proportion of good to excellent results is closer to 50%. Poor results occur in up to 10% of patients and these account for the FBSS. Patients with FBSS frequently have additional operations and the probability of success decreases with each additional surgery.
There are numerous causes for the FBSS and all of the most common causes do not involve medical malpractice. Proper patient selection is crucial and the "right operation" performed on the "wrong person" has very little chance of success. There are psychogenic factors present in all patients with back pain and these factors are not treated with surgery. Epidural fibrosis, or scarring of the nerve roots, is another common cause of FBSS and this involves no technical errors on the part of the surgeon. It is simply an unfortunate response of the body to the trauma of surgery. Other identifiable causes of the FBSS include inadequate decompression which results in untreated lateral recess and foraminal stenosis. Although this is likely an error in judgment or execution on the part of the surgeon it does not meet common legal tests to be a true "breach in the applicable standard of care".
The subsequent development of segmental instability at an operated level may necessitate the need for a spinal fusion but once again this problem occurs in the absence of any breach in the standard of care. Obviously persistent back or leg pain without a clear-cut cause cannot be attributed to surgical error. The vast majority of failed back surgery patients do not involve any type of medical malpractice.
Types of Cases that Warrant Evaluation:
To assist the legal professional in considering which cases warrant a review by an orthopaedic surgeon the following are examples of results which are attributable to a likely breach in the standard of care. "Wrong level surgery" where the surgeon actually operates on the disc above or below the level that was pathological is certainly adequate cause for action. Frank nerve damage attributable to transection of a nerve root is a likely good cause. However, these cases tend to be difficult to prove and quite uncommon because the only individuals who know what actually happened are the same individuals who were in the operating room at the time of the occurrence. Similarly inadvertent penetration of the anterior disc with consequent entry in to the retroperitoneal space and vascular trauma is a known complication but this may be considered to be a breach in the standard of care as well.
FBSS cases may initially appear to be provocative and potentially rewarding but in practice they are certainly difficult to successfully prosecute. The vast majority including recurrent disc herniations and failed spinal fusions are rarely if ever attributable to medical malpractice.
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