There isn’t a surgery that has a 100% success rate and there isn’t a surgery that has a 0% complication rate. As a result, a plaintiff who is not better off after accumulating substantial surgery related costs is inevitable. Defense attorneys love those patients. It gives them the opportunity to discredit the surgeon for the results, the patient for faking and the plaintiff attorney for unnecessarily spending tremendous amounts of money for no benefit. while patient failure rates occur 15%-25% of the time, defense attorneys will often attempt to make the 75%-85% of cases that are successful appear like failures. Understanding how success is determined in spine surgery will allow plaintiff experts and plaintiff attorneys to accurately portray a surgical success as a surgical success and deny the defense attorney the opportunity to falsely infer otherwise.
Pain
Asking a patient about the results of their surgery seems obvious, but the subjectivity that is often applied can open up opportunities to misinterpret the surgical results. A common way a defense attorney will question a patient is by asking “what is your pain on a scale of 1 to 10?” This question is an inappropriate method for comparing a pre-surgical state with a post-surgical state. By its very nature, the question exploits the subjectivity of the patient’s own interpretation by giving the patient the opportunity to focus on any residual symptoms. In medicine, purely subjective answers about pain, like giving a number between 1 and 10, were discounted long ago. One reason is because when more severe forms of pain are relieved, patients will tend to focus more on residual symptoms. This is why physicians use more standardized methods that include comparisons.
A better, proven and objective way of determining success based on pain is the Visual Analog Pain Scale (VAS). The VAS is similar to the 1-10 system but uses an objective observer to determine the scoring. The patient is given a 100-millimeter line, from left to right. On the left and right border there are vertical hashmarks. The patient is told that the left hashmark means no pain and the right hashmark means the greatest pain imaginable. The patient is told to place a vertical hashmark where they feel their average pain would fit. The observer then measures the length, in millimeters from the left hand vertical hashmark to the one drawn by the patient. The recording and scoring by the observer adds an objective element that has been validated in scientific studies and is used in medical trials. Success is determined by drawing comparisons with pre-treatment scores. For back pain, success is at least a 20-millimeter drop. For leg pain due to radiculopathy, success is at least a 30-millimeter drop.
Disability
Besides pain, a way of determining the success of a procedure is by objectively measuring the pain related disability that a patient has before and after their surgery. For back pain, physicians use the Oswestry Disability Index (ODI). For neck pain, physicians use the Neck Disability Index (NDI). The ODI and NDI scores reflect the level of disability in terms of percentage disability. As a result, patients are characterized as having no or mild disability, moderate disability, severe disability or being crippled. In order to obtain the scores, a patient answers 10 questions by selecting pre-determined answers. An observer then scores the answers and a total disability score is obtained. Disability improvement by 10%-20% is regarded as the minimum needed to determine success.
Expected durability
Expected durability is an important factor in determining the success of some forms of spine procedures. In personal injury cases whiplash is common. Whiplash injury of the cervical facet joints is usually treated by performing a procedure called a radiofrequency neurotomy (RFN). The RFN procedure works by using an electrode to coagulate a pain sensing nerve, rendering the injured joint painless. The RFN procedure has been well studied and it is known that nerve regeneration occurs in 10-14 months, leading to recurrence in 1 out of 3 patients. This recurrence is not a treatment failure. It is consistent with the expected durability of the procedure. The appropriate response is to repeat the procedure and expect at least the same duration of benefit, not to deem the procedure a failure.
Multi-focal injuries
Another area where care must be taken in determining the success of treatment is in cases where there are multi-focal, (more than one), injuries. Multi-focal injuries are common. In the neck they are usually present as an upper neck cervical facet injury and a lower neck disc herniation. The presence of upper neck pain after a C5/6 fusion does not mean the operation was a failure; it means there is a residual focus of untreated pain at the C2/3 facet. In the lumbar spine, multi-focal injuries can be seen with an injured disc and concomitant facet joint injury. A clue to the problem can be the presence of less intense residual back pain, usually of a different pattern than what was present prior to discectomy.
Multi-focal problems are common in injury patients, especially those that have withstood high force vehicular injuries. Treating physicians and experts should take care to identify the residual pain sources. Careful identification of the residual pain generators will distinguish the patient as having untreated residual pain, rather than being a treatment faiure.
Surgical Goals
Lastly, the goals of surgery must be considered when determining success. When treating limb weakness due to spinal cord or nerve compression, the goal is to arrest progression, not to reverse it. Residual weakness is not treatment failure, nor is residual back pain. When discectomy is performed for radiculopathy, though often there is back pain improvement, it is not the major goal of surgery. Therefore, relief of leg pain after discectomy in a patient with residual back pain may still be considered a treatment success. Of course, back pain relief should be an achievable goal in procedures performed specifically to address back pain.
Conclusion
It is common for defense experts and defense attorneys to portray a successful surgery as unsuccessful. Doing so may undermine the validity of the entire surgical effort as well as the credibility of the treating surgeon. One can effectively counter such false claims with an understanding of the objective measures of surgical success, the durability of certain procedures and knowledge of the surgical anatomic target and the goals of surgery. This requires a dialogue between the surgeon and the plaintiff attorney and requires the surgeon to employ preoperative and postoperative assessment tools.
Dan Cain, MD
The views expressed are the personal views of the author and do not represent the views of The Brain, Spine and Joint Group, its managers, affiliates, partners, employees or its clients. Furthermore, the information provided by the author is not intended to be expert or legal advice.
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