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A Medical-Legal Guide to Spinal Surgery

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A Medical-Legal Guide to Spinal Surgery 169 Journal of Health & Biomedical Law, XVII (2021): 169-208 © 2021 Journal of Health & Biomedical Law Suffolk University Law School A Medical-Legal Guide to Spinal Surgery By Samuel D. Hodge, Jr.* “You only really discover the strength of your spine when your back is against the wall.” ---James Geary Patricia Jones, a 56-year-old payroll manager, suffered from neck discomfort and radiating pain because of a herniated disc. She underwent a laminectomy but complications arose during the procedure. A small fragment of the vertebra broke off and became embedded in the protective covering surrounding the spinal cord.1 The neurosurgeon forged ahead despite the complication and wrote in the post-operative note that no adverse events had occurred during the surgery. The patient’s blood pressure plummeted the next day and she developed paralysis. A computed tomography scan (“CT scan”) was not ordered until three hours later and it revealed an epidural hematoma.2 The neurosurgeon dismissed this finding and said that no accumulation of blood was present that was pressing on the spinal cord. If a proper diagnosis had been made, the hematoma could have been promptly evacuated. Instead, the mistake rendered Ms. Jones a quadriplegic.3 At trial, the defense argued that the patient suffered a spinal cord infarction, nothing could have been done to prevent it, and the informed consent document covered the problem.4 Following a five-month jury trial, Mrs. Jones and her husband were awarded $55.9 million in damages.5 I. Introduction Many legal and insurance professionals do not understand the indications and limitations of spinal surgery. For instance, the mere finding of a herniated disc or other * Samuel D. Hodge, Jr. is an award-winning professor at Temple University where he teaches law, anatomy, and forensics. He is also a member of the Dispute Resolution Institute where he serves as a mediator and neutral arbitrator. He has authored more than 185 articles in medical or legal journals and has written ten books including co-authoring the text, The Spine For Lawyers, American Bar Association. Professor Hodge enjoys an AV preeminent rating and has been named a top lawyer in Pennsylvania on multiple occasions. 1 Robert Brum, She Became a Quadriplegic After Spinal Surgery. A Jury Awarded her $56M Malpractice Verdict, USA Today (Aug. 12, 2019), https://www.usatoday.com/story/news/nation/2019/08/12/woman-wins-56-million- malpractice-verdict-after-botched-spinal-surgery/1994020001/. 2 Id. 3 Id. 4 Id. 5 Id. 170 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2 abnormality on magnetic resonance imaging (“MRI”) may not be clinically significant especially when such a large percentage of asymptomatic people have these findings.6 Spinal surgeries are also not created equal and one must understand the differences to properly present or defend a back surgery claim. Damage awards must also be considered as a possible reason that can influence claims for severity and duration of symptoms regardless of the method of treatment employed.7 This article will provide an anatomic overview of the spine with a discussion of the parts that make up this structure, the cushions that permit the spine to bend, and the tissues that hold the vertebral column together.8 A description of spinal injuries and surgical interventions is also presented along with a discussion of the risks and limitations of these procedures.9 This will be followed by an examination of the malpractice implications of spinal surgery and a representative sample of court cases involving the different surgical approaches involving the spine. a. Back Pain Statistics The spine consists of an array of vertebrae, intervertebral discs, nerves, a spinal cord, and soft tissues. It is a common assumption that this structure is frail or vulnerable and that people must be cautious not to hurt it is wrong.10 The spine is a very sturdy and robust configuration crafted to do its job. Yet, it is a great generator of pain11 and one of the most common medical ailments that affects eighty percent of the population at some time during their life. This discomfort can be a dull ache or an excruciating pain.12 Acute spinal discomfort typically persists from a few days to a few weeks but if it becomes chronic, the pain can continue for months.13 Back pain is the foremost reason for disability around the world, prohibiting countless individuals from working or engaging in everyday activities. It is also one of the most common reasons for lost time from work and fifty percent of employees acknowledge having back pain symptoms annually.14 Age is not a determining factor and most causes of back discomfort are mechanical or non-organic, meaning they are not produced by a serious problem, such as inflammatory arthritis, infection, fracture, or cancer.15 Statistically, it exacts a huge financial toll costing the economy more than $215 6 See JMS Pearce, Aspects of the Failed Back Syndrome: Role of Litigation, 38 SPINAL CORD 63, 66 (2000), https://www.nature.com/articles/3100947 (“[C]onsiderable radiological ‘abnormalities’ commonly exist in people devoid of symptoms and complaints.”). 7 Id. 8 SAMUEL D. HODGE, JR. & JACK E, HUBBARD, THE SPINE FOR LAWYERS: ABA MEDICAL- LEGAL GUIDES 409 (2013). 9 Id. 10 See HODGE & HUBBARD, supra note 8, at 409. 11 See HODGE & HUBBARD, supra note 8, at 409; see also Back Pain, MEDLINE PLUS, https://medlineplus.gov/backpain.html (last visited Mar. 25, 2021). 12 Id. 13 Id. 14 Back Pain Facts and Statistics, AM. CHIROPRACTIC ASS’N, https://www.acatoday.org/Patients/What-is-Chiropractic/Back-Pain-Facts-and-Statistics (last visited Mar. 22, 2021). 15 Id. 2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 171 billion annually.16 Back pain is also the most common cause of disability in those under forty-five years of age.17 b. Treatment Options The necessity for care of these individuals, combined with the poor comprehension of the basic foundations of back discomfort, has generated an ever- expanding selection of treatment options, including medications, and manipulative care.18 Occasionally, the pain will not abate, and it may cause neurological issues or instability requiring surgical intervention. There has been a recent increase in the number of techniques available and a marked increase in the number of surgical procedures performed.19 Percutaneous approaches such as epidural steroid injections, facet joint blocks, spinal cord stimulation, intradiscal methods, and interventions meant to excise discs or other materials in the spinal canal or to fuse the vertebrae have been employed. Spinal surgeries vary from traditional methods involving discectomies and spinal canal decompression to diverse ways of tackling segmental fusions using different approaches, materials, instruments, and indications.20 Back surgery alters a person’s anatomy so surgical intervention should only be pursued as a last resort. If a lesion or spinal abnormality has not been identified, surgical intervention is improper, nor should back surgery be done to explore possible reasons for the pain. These interventions will transform the routine soft tissue injury claim into one fraught with possible complications and legal repercussions. The value of the case will also dramatically increase depending upon the type of surgery performed and the patient’s prognosis.21 II. Anatomy of the Spine This anatomic region is one of the most important parts of the body. Without it, one would be unable to stand; it also provides the body with flexibility, structure, and support. The backbone also protects the spinal cord which passes through the center of the vertebrae.22 The spine runs from the bottom of the skull to the pelvis and is made up of moveable bones called vertebrae. These bones are stacked on top of each other and separated above and below by cushion-like pads dubbed discs.23 Altogether these weight-bearing bones consist of 16 See HODGE & HUBBARD, supra note 8, at 409. 17 See HODGE & HUBBARD, supra note 8, at 409. 18 See Janna Friedly et al., Epidemiology of Spine Care: The Back Pain Dilemma, 21 PHYSICAL MED. AND REHAB. CLINICS OF N. AM. 659, 659–77 (2010). 19 Id. 20 Id. Fusions are done because of intractable pain instability, herniated discs, and spinal deformities. 21 Id. 22 See A Patient's Guide to Anatomy and Function of the Spine, THE U. OF MD. MED. CTR., https://www.umms.org/ummc/health-services/orthopedics/services/spine/patient- guides/anatomy- function#:~:text=The%20spine%20is%20one%20of,to%20protect%20your%20spinal%20cord (last visited on November 12, 2020). 23 See HODGE & HUBBARD, supra note 8, at 409. 172 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2 thirty-four vertebrae but only twenty-four are independent and not fused.24 The vertebrae are also not identical in size and generally become bigger in a downward order because of their weight-bearing obligations.25 a. Regions of the Spine The vertebral column consists of five major regions; cervical, thoracic, lumbar, sacrum, and coccyx.26 The cervical spine or neck is made up of seven small bones which are tightly stacked upon one another. They are numbered C1 to C7, support the head and allow the neck to rotate as well as flex and extend. The most mobile portion of this segment occurs between the C5-C6 and C6-C7 levels making them the most susceptible to injury.27 The top two bones, however, are uniquely shaped. The C1 vertebra, known as the Atlas bone, holds up the globe of the head. The second vertebra is the Axis and the embryologic body of the C1 bone. It plays a significant role in the rotation of the head28 and is susceptible to a whiplash- type injury.29 The thoracic spine is the largest portion of the spine and the most complex.
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