Presenting a patient at trial who has persistent or recurrent symptoms can be difficult. As a plaintiff attorney not only do you have to show injury causation and liability, but now you must also defend large medical costs in a patient that has not improved. While the plaintiff attorney’s job is now more difficult, the defense has been handed an advantage. An expensive case with a lack of improvement is ample opportunity for defense attorneys to simultaneously accuse the patient of faking, the doctor for being incompetent and the plaintiff’s attorney for facilitating hopeless and expensive surgery. With careful attention to detail, however, the facts of the case can be presented accurately to show a much different picture.
Real surgical failures
Importantly, some patients will just fail surgery. Spine surgery failure rates are in the 15%-25% range, as noted by several large trials recording re-operation rates (one can reasonably assume that the rates are probably higher since not every patient with a failed surgery wants a second surgery). That means that if it takes a year to go to trial, there is a significant chance that there will be a return of at least some symptoms in up to a quarter of patients. This is the nature of the beast. Surgeons do not make 100% guarantees because they know that those results are not achievable. Surgeons should, however, be able to obtain results like those described in large long-term scientific trials, hence the 15%-20% failure rate. Therefore, there is not anything particularly unusual about a patient that fails lumbar spine surgery. These natural failure rates need to be presented openly and transparently to a jury.
Subjective pain vs failure
Fortunately, most cases of recurrent pain do not represent failure of surgery at all. Probably the most common cause of recurrent pain is the surgeon’s lack of using a reliable metric to measure and compare a patient’s pain with their pre-operative level. There are several indices, like the visual analog pain scale (VAS) and the disability index (DI), that have been validated in scientific trials. These indices allow an objective measure of pain severity and disability due to pain. When the surgeon has not employed an objective means, like the VAS and DI, one is at the mercy of a patient’s natural subjectivity. The pain a patient feels today usually weighs more on them than the pain they felt yesterday. Hence, a patient who still has pain, but at a level sufficiently reduced to still be a surgical success, may present their pain as persistent and their surgery as being less effective than it really was.
When a patient complains of persistent pain and the pre and post-operative indices show a significant improvement, the patient can be determined to be a technical success. When using the visual analog pain scale a drop of 20 millimeters represents success in treating back or neck pain. A change of 30 represents success in treating radiculopathy. In improving disability, one wants to see a change of at least 10% in the disability index score. In these cases, a defense claim of failed surgery can be refuted by showing measurable qualifying improvements on the objective indices.
Surgical goals vs failure
One must also consider the goals of surgery in determining whether the procedure has been successful or not. When there is pain from radiculopathy out of proportion to back pain, amelioration of radiculopathy (usually arm or leg pain) is the major goal of surgery. Hence, residual back or neck pain may still be present in a successful case. Successful treatment of back or neck pain in these cases may require additional or more extensive procedures. The same goes for treating limb weakness from motor radiculopathy. This is a major goal of urgent surgery and becomes the most important measure of surgical success, even when there is residual pain.
Concurrent pain vs failure
One must also allow a careful consideration of a patient’s post-operative pain to identify newly uncovered pain sources. It is very common that a major source of pain will mask other pain sources. For example, disc pain can be very severe. Successfully treating disc pain may leave the patient with pain from an injured facet joint or an injured sacroiliac joint. Over time this pain becomes the central focus of the patient’s complaint, thanks to the success of the previous surgery. This pain can usually be distinguished from the pain treated by surgery by its pattern and its intensification after surgery. Simple diagnostic testing can determine the presence of a separate pain generator than the one treated by surgery. Such testing would not be accurate before surgery because the more severe pain treated by surgery masks lesser forms of pain. While the patient may not always have the knowledge or insight to ascribe their pain to multiple sources, the surgeon should. By carefully demonstrating and describing the presence of a lesser but still important second pain generator, one can avoid mistakenly assigning a patient as a surgical failure when they were in fact a success.
Lastly, sometimes two distinct but equally severe etiologies of pain may co-exist. This is commonly seen in the neck. A herniated C5/6 disc can be very painful. So too is the often concomitant C2/3 facet injury. When C5/6 is treated with a fusion the patient will have persistent upper neck pain and occipital headaches due to the C2/3 facet injury. A careful investigation, including diagnostic blocks, will reveal a simultaneous injury at C2/3. This information will be useful in explaining to the patient and the jury that there is an untreated pain source, rather than a case of failed surgery.
Conclusion
Defense attorneys love to paint surgery as unsuccessful. This can be accurately addressed by a realistic and transparent discussion of true surgical failure rates, having reliable and objective measures of pain and disability after surgery, demonstrating clearly what the goals of surgery were in the first place, and taking the time to demonstrate that the patient may have concurrent sources of pain not addressed by surgery. This thoughtful approach will be useful in truly demonstrating the success of the patient’s medical endeavors and demonstrating the defense’s disingenuous attempt to beguile a jury.
Bernard Rieux, 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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