Spinal Fusion: Risks, Malpractice and Lawsuits
If you’ve had some complications after a spinal fusion procedure, you may be wondering if your injuries are the result of medical malpractice. This article discusses the common risks of spinal fusion and the general nature of spinal fusion malpractice lawsuits, and offers a few sample verdicts.
Spinal Fusion Procedure and Risks
Spinal fusion is the surgical procedure of permanently connecting two or more vertebrae in the spine. The procedure is used to stabilize, straighten or reduce pain in the spine. The common reasons for undergoing a spinal fusion range from a broken vertebrae or removal of a herniated disk to correcting the spinal deformities scoliosis and kyphosis.
According to the Mayo Clinic, common risks of spinal fusion include:
- poor wound healing
- blood clots
- injury to blood vessels or nerves in and around the spine
- pain at the site from which a bone graft is taken, and
- accelerated wear and tear on remaining vertebrae and possible chronic pain.
Identifying Spinal Fusion Medical Malpractice
While medical negligence can show up in a variety of forms, there are essentially three ways your surgeon or other medical professional can be liable for malpractice when it comes to spinal fusion:
- Negligently performing the procedure and/or failing to recognize a complication.
- Recommending the procedure when it is ill-advised and/or not informing you of viable alternative procedures.
- Failing to fully inform you of all the risks before performing the procedure.
For the first two types of malpractice, the question is whether a reasonably competent surgeon or other medical practitioner in the same position could make the same mistake (this is called the medical standard of care). For example, just because your surgeon damages one of your nerves does not necessarily mean malpractice has occurred. The question is whether a reasonably skilled practitioner would have been able to avoid the same mistake. Ultimately, a jury must decide that question after hearing conflicting testimony from expert medical witnesess for both sides of the case.
When it comes to not recommending an alternative procedure or whether the spinal fusion should have been recommended at all, know that your malpractice case faces an uphill battle -- there is a fair amount of controversy surrounding spinal procedures and remedies in general with a lot of disagreement among equally reasonable and competent professionals. However, there have been a number of successful medical malpractice cases stemming from spinal fusions that should not have been recommended in the first place.
If your claim is that your doctor failed to fully warn you of all the risks of a spinal fusion (called “lack of informed consent”), depending on your state you will either need to prove that a reasonable patient would have wanted the missing information or that a reasonable doctor would have included the information. Either way, you need to convince a jury that if the risk had been disclosed, a reasonable patient would have refused the procedure.
Given the well-known complications of spinal fusions, your doctor most likely detailed those risks to you in person and had you sign an informed consent sheet before the procedure. Simply because you signed the sheet does not mean you will lose your informed consent case, but it does make winning harder.
Special Issues in Medical Malpractice Cases
If you're thinking about bringing a medical malpractice case, be aware that special rules are specifically designed to make suing a doctor more difficult than suing “ordinary” defendants. These include:
- A short deadline (“statute of limitations”) to start your case.
- Pre-suit requirements like screening panels and “certificates of merit” that must be filed with the initial lawsuit papers.
- Expert medical witnesses experienced in the particular field of health care must testify on behalf of either party.
- The total amount a plaintiff can recover from a health care provider might be limited by a “damage cap.”
How Much is a Spinal Fusion Malpractice Case Worth?
If you win your case, how much you recover will all depend on your medical expenses, lost wages and other concrete losses, plus the the dollar amount the jury puts on your pain and suffering. Remember that some states put limits on how much a medical malpractice plaintiff can recover, regardless of what the jury awards.
Sample Verdicts in Spinal Fusion Malpractice Cases
- A plaintiff recovered $509,000 after her first doctor permitted her to remove her body brace without properly verifying that the fusion site was ready for the stress. The plaintiff required a second fusion surgery and a body brace for nine-months.
- A plaintiff recovered $22.4 million from a surgeon and a hospital after the surgeon improperly recommended a spinal fusion, had no experience with the procedure, and negligently performed two surgeries. As a result of the negligence, the plaintiff was unable to sit for more than short periods, could only walk short distances and was unable to return to work. The hospital was also found liable for permitting the surgeon to attempt to perform the procedure.
- A plaintiff received $500,000 in a settlement for infection following a spinal fusion surgery.
- A plaintiff recovered a $1.3 million verdict after an unnecessary spinal fusion surgery caused permanent injuries.