[KatLC]

After having my 2nd spinal fusion 6 months ago I had an EMG done and discovered I have nerve damage as a result of the surgery. The surgery was to treat sciatica on my right side and now my left foot has partial loss of sensation and I constantly have sever burning pain that no medication or PT has been able to help so far. I did not have this nerve damage before, this was clearly a result of the surgery. The surgeon told me before the fusion that nerve damage was not considered a possible risk since the incision was from the anterior and not the posterior. After the surgery he admitted the pain I was having was not normal or a complication that he would have expected. He kept telling me that the nerve was just irritated and that the pain would go away over time. It was only when I went to another doctor that I had an EMG ordered and discovered the nerve was not irritated, it was damaged.

I am in constant pain, I may loose my job and I am horribly depressed because I can't have a social life. I don't feel like my condition is improving and I don't know what to do. Is this possibly a case of medical malpractice?

[Dr. Smith]

Hi Kat,

IANAL, and that's who you should ultimately consult. Many/most will consult for free to get the facts and determine if they're interested in taking the case on contingency. However, medical malpractice is very difficult to prove.

A plaintiff must establish all five elements of the tort of negligence for a successful medical malpractice claim.[4]

1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
2. A duty was breached: the provider failed to conform to the relevant standard care.
3. The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury.
4. Deviation from the accepted standard: It must be shown that the practitioner was acting in a manner which was contrary to the generally accepted standard in his/her profession.
5. Damage: Without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.

http://en.wikipedia.org/wiki/Medical...ts_of_the_case

Elements 1, 3, & 5 are the easy ones. It's elements 2 & 4 that are difficult to prove legally, and expert testimony is usually required.

The release you signed may also be a factor. Regardless of what the surgeon told you verbally, if the release states in writing that nerve damage was a possible outcome, that will likely supercede any verbal statements, and serve as disclosure/informed consent.

All that said, I'm just some guy on the internet—you really need to talk to an experienced medical malpractice attorney about this. They are in a better position than anyone here to evaluate your case and any statutes that apply in your state/province.

Sincerely hoping the best for you,

Doc

[Jomar]

I think you can request the surgical notes, taken during surgery or right after??
That might be another piece of paperwork that could have clues , or general info that is needed. Not sure if hospital and dr office has those , I'd check hospital first.

Perhaps make a time line of sx pre surgery & post surgery and as best as you can dates of those.
How long after the surgery did the new sx begin?

But perhaps a call to some malpractice attys will give better guidance and what is needed for a possible claim.

[KatLC]

Originally Posted by Jo*mar

I think you can request the surgical notes, taken during surgery or right after??
That might be another piece of paperwork that could have clues , or general info that is needed. Not sure if hospital and dr office has those , I'd check hospital first.

Perhaps make a time line of sx pre surgery & post surgery and as best as you can dates of those.
How long after the surgery did the new sx begin?

But perhaps a call to some malpractice attys will give better guidance and what is needed for a possible claim.

Right out of surgery I woke up and the top of my foot was numb and my leg was in extreme pain and I could barely move it. There is no question the nerve damage is from the surgery. I know it's hard to prove malpractice and I really don't want to make this a legal issue but I'm most likely going to lose my job over this and the pain is so bad I don't know if there is any type of work I can do anymore.

[KatLC]

Originally Posted by Dr. Smith

Hi Kat,

IANAL, and that's who you should ultimately consult. Many/most will consult for free to get the facts and determine if they're interested in taking the case on contingency. However, medical malpractice is very difficult to prove.



Elements 1, 3, & 5 are the easy ones. It's elements 2 & 4 that are difficult to prove legally, and expert testimony is usually required.

The release you signed may also be a factor. Regardless of what the surgeon told you verbally, if the release states in writing that nerve damage was a possible outcome, that will likely supercede any verbal statements, and serve as disclosure/informed consent.

All that said, I'm just some guy on the internet—you really need to talk to an experienced medical malpractice attorney about this. They are in a better position than anyone here to evaluate your case and any statutes that apply in your state/province.

Sincerely hoping the best for you,

Doc

Thanks! I appreciate the advice. I know I probably should just talk to a lawyer but I don't exactly trust lawyers. I don't want to spend a lot of time and money on a lawsuit that I'm not likely to win but I am upset that the surgeon told me very different things before and after the surgery about the risk level. And at the very least I should have been offered an EMG sooner instead of just being told to deal with the pain since it was "only temporary".

[Sitke]

Hi Kat,

So very sorry this happened, absolutely terrible.

I totally understand the not liking attorney's, usually you don't get billed unless they win, so if one did go forward with a case and didn't win you'd owe nothing.

Get those surgical notes, you never know what's in them.

Did you sign anything before the surgery that states "occasionally" nerve damage etc can be done?

[Diandra]

Originally Posted by KatLC

After having my 2nd spinal fusion 6 months ago I had an EMG done and discovered I have nerve damage as a result of the surgery. The surgery was to treat sciatica on my right side and now my left foot has partial loss of sensation and I constantly have sever burning pain that no medication or PT has been able to help so far. I did not have this nerve damage before, this was clearly a result of the surgery. The surgeon told me before the fusion that nerve damage was not considered a possible risk since the incision was from the anterior and not the posterior. After the surgery he admitted the pain I was having was not normal or a complication that he would have expected. He kept telling me that the nerve was just irritated and that the pain would go away over time. It was only when I went to another doctor that I had an EMG ordered and discovered the nerve was not irritated, it was damaged.

I am in constant pain, I may loose my job and I am horribly depressed because I can't have a social life. I don't feel like my condition is improving and I don't know what to do. Is this possibly a case of medical malpractice?

Hi Kat,
I have found the Attorney General in my state was very helpful to me with with medical "consumer" issues. All it will take is a call to their office, stating your issues and ask them for advice. It is possible this doctor has other complaints or perhaps your state has legal assistance for such matters.

Twice I used our AG and he helped me resolve my problems both times with some very sensible, straight forward advice. One issue was my insurance company would not pay for long term IV antibiotics for an illness my doc said I needed it for. I was out of work on short term disability and the AG told me to call my employer and tell them I was being refused treatment and potentially delaying my return to work. My company called the health insurance co and I received the treatment the next day. The other issue is, my doc would not give me my medical records. The AG's assistant called the doc and said what he was doing was illegal and the doc overnighted the records the next day.

Remember that medical treatment is a consumer issue and attorney generals handle those issues. I had no idea about this, a friend told me.

I am sorry for what you are going through. Considering you may lose your job due to this issue, I think the AG, at minimum, will be able to offer some legal guidance.

I wish you the best Kat,
Diandra

[Synnove]

hi Kate,
I am sorry for what happened to you, and especially if the injury is going to effect your vocational capability and therefor also effect your standard or living. Think of all the loss down the road. And the pain and suffering, both physical and emotional.
to sitke,
I agree with you, ----Kate, if you get an attorney, usually your cost will be the percentage the attorney takes out of the settlement. If he/she does not win your case for you, usually there is no cost for you.
In any case, you would probably have to sign an agreement between you and the attorney before he/she takes on your case.

to doc (Smith)
Just out of curiosity,---- is the statue of limitation still 2 years for a case like this?

Synnove

[Dr. Smith]

Originally Posted by Synnove

Just out of curiosity,---- is the statue of limitation still 2 years for a case like this?

IANAL, but AFAIK, it depends on what jurisdiction (State, Province, etc.) the surgery was performed in, but yes—typically two to three years. In some cases...

These statutes can be reduced or extended to ensure a fair trial.
http://en.wikipedia.org/wiki/Statute_of_limitations

Such reductions/extensions are usually due/related to discovery rules—i.e. when the "mistake" was discovered vs. when it actually occurred.

For more (jurisdiction-) specific information, see statute of limitations medical malpractice or statute of limitations medical malpractice [jurisdiction].

Doc

[KatLC]

Originally Posted by Diandra

Hi Kat,

Remember that medical treatment is a consumer issue and attorney generals handle those issues. I had no idea about this, a friend told me.

I am sorry for what you are going through. Considering you may lose your job due to this issue, I think the AG, at minimum, will be able to offer some legal guidance.

I wish you the best Kat,
Diandra

I never thought of that, thank you so much for the info. I am trying more epidural shots but if that doesn't work then I am out of options. My income supports my family and I would hate to give up the work I love doing but at this point I am still in too much pain to do my job well.