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Back Pain, Lumbar Surgery and Litigation: A Brief Overview

Low back pain is one of the most common symptoms a physician encounters in the general patient population. Low back pain occurs at least once in 85% of the population aged 50 or less and is the fourth most common complaint in outpatient medicine. The medical costs associated with low back pain are surpassed only by those associated with cancer and heart disease. As a result of its ubiquity, the diagnosis and treatment of low back pain is frequently associated with litigation. In general, such litigation involves the failure to diagnose a serious condition causing low back pain, negligence in the performance of lumbar surgery, or the failure to diagnose and treat a post-operative complication of lumbar surgery.

The failure to diagnose and treat a serious condition causing low back pain is a common reason for litigation. A prime example is cauda equina syndrome. Cauda equina syndrome is characterized by bilateral lower extremity numbness and weakness, perineal or perianal numbness, and bladder or bowel dysfunction. Acute cauda equina syndrome is generally considered a medical emergency, can be caused by any disease process, commonly a ruptured disk, tumor or infection, placing pressure upon the cauda equina, and must be diagnosed and treated in a timely manner. Failure to do so would constitute treatment that fell below the applicable standard of care. Other disease entities that commonly cause back pain and that are frequently overlooked include infections of the spine, tumors of the spine, and fractures of the spine. Generally, in patients who present with back pain associated with neurological signs or symptoms or who have an unusual clinical presentation, timely radiographic studies are indicated, and failure to order such studies constitute medical care that falls below the applicable standard of care.

The negligent performance of lumbar surgery may also give rise to litigation. Negligence in the actual performance of lumbar surgery, however, is infrequently documented in the medical records and may be difficult to prove. On the other hand, such actions as performing a diskectomy or laminectomy at the incorrect level almost always falls below the applicable standard of care and can be independently proven. Other examples of negligence during surgery include certain aspects of lumbar fusion surgery, iliac vein or aortic perforation, and the failure to repair a dural tear or leak when recognized. Examples of intraoperative mishaps that rarely rise to the level of medical negligence include dural tears, cerebrospinal fluid leaks, excessive bleeding, and inadvertent nerve root injury. Overall, mishaps during the technical performance of lumbar surgery constitute the fewest instances of medical negligence.

Finally, the failure to diagnose and treat a post-operative complication may give rise to medical care that breaches the applicable standard of care. Many post-operative complications following lumbar surgery involve either infection or neurological dysfunction. Infection following lumbar surgery, in and of itself, is usually not medical negligence; the failure to diagnose and treat such an infection, however, may constitute medical negligence. The failure to diagnose and treat a post-operative disk space infection can also constitute medical negligence. The presence of a post-operative neurological deficit, in and of itself, may not constitute medical negligence, but the failure to evaluate and treat such a deficit may be medical negligence. The failure to provide adequate post-operative follow-up care may constitute medical negligence. In general, close follow-up of a patient following lumbar surgery is indicated, and the threshold for performing post-operative imaging including MRI scanning must be low for evaluating neurological dysfunction or infectious processes.

In summary, back pain and lumbar surgery are common medical entities and may be associated with medical negligence giving rise to litigation. The actual performance of the surgical procedure may give rise to negligence but only in specific instances that may be independently proven. More commonly, litigation arises from a failure to diagnose the disease entity prior to surgery or a failure to evaluate properly, diagnose, and timely treat the patient in the post-operative period. For these very reasons, an experienced expert witness is necessary to evaluate cases involving lumbar diseases and surgical procedures.

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