Ball v. York: Spine Surgery Malpractice


Personal Injury Attorneys Blog
Virginia Back Injury Lawyer

When you need surgery to repair your spinal column, you don’t expect to come out of surgery in more pain than you went in with. But this is what happened to the plaintiff in Ball v. York, whom Emroch and Kilduff’s attorneys Michael W. Lantz and Christopher L. Spinelli represented. She managed the pain for years but finally decided to go in for the surgery because the pain, even with the pain meds, was disabling.

Before you agree to spinal cord surgery of any type, you should first get a second opinion as to whether you need surgery and the type of surgery that is best for your back. Second, you should research the doctors’ reputations, successes, and failures before you choose a doctor. If you had surgery or another medical procedure that did not fix the problem, made the problem worse, or created an additional problem, contact a medical malpractice lawyer as soon as possible.

The Surgery

A posterior lumbar interbody fusion for the L5/S1 was performed on the plaintiff on April 2, 2015. According to the U.S. National Library of Medicine at the National Institute of Health, of the different types of repairs available, this one is the best option for the L5/S1 disc in the lumbar region. However, the defendant doctor did not place the hardware used to fuse the spine in the correct place on the disc, and the plaintiff continued to suffer from pain in her left leg. The doctor placed the hardware almost all the way out of the disc space and the right screw too far through the anterior cortex.

Post-Surgery Actions

Because the plaintiff complained of severe leg pain, the defendant ordered a lumbar scan on April 4. According to the defendant, the scan indicated that the hardware was installed incorrectly, but also that neither it nor a piece of bone was pressing on a nerve root. The plaintiff was released from the hospital on April 5.

Meanwhile, the defendant scheduled a followup for April 15. The plaintiff kept the appointment and again complained about the pain in her leg. The defendant ordered a CR Myelogram and scheduled the scan for April 21. This scan showed that the hardware was installed improperly. Without telling the plaintiff, the defendant scheduled the plaintiff for follow-up surgery to repair the misplacement of the hardware. The surgery took place on April 21.

During the second surgery, the defendant stated that he found a bone fragment pressing on a nerve root. Because the defendant did not perform the second surgery immediately upon realizing that the hardware was misplaced, the plaintiff experienced more pain and suffering due to the nerve root compression—the bone pressing on the nerve. Even with the second surgery, the plaintiff continued to experience pain in her left leg, and the pain in her back did not improve. In addition, the plaintiff had to wean herself off prescription pain medication following the surgeries.

Jury Award

The defendant contested the medical malpractice lawsuit against him and blamed the additional pain and nerve root damage on the bone fragment that did not show up on either scan. The jury, however, awarded the plaintiff $700,000.

Medical Malpractice in Virginia

Like most states, Virginia has a cap on medical malpractice lawsuits. As of July 1, 2019, the cap was $2.40 million. Unlike many states, Virginia’s law allows for increases in the cap every year. The cap increases every July 1.

Additionally, plaintiffs generally must file their medical malpractice claims, as with other personal injury claims, within two years of learning of the error. However, in some cases, plaintiffs may have more than two years to file a claim before the statute of limitations runs. It is always best to contact an attorney as soon as you realize the surgery or other medical procedure is causing more pain or did not eliminate your pain so that you do not miss the statute of limitations.

When You Should File a Medical Malpractice Claim

Due to the statute of limitations, you should file a medical malpractice claim as soon as you know something is wrong. Even if you merely suspect something is wrong or another doctor says that your issue might be due to previous surgery, you should contact a medical malpractice attorney. The attorney will review your case, including your medical records, to determine your eligibility to file a medical malpractice claim. If necessary, the attorney will hire expert witnesses, who are usually medical professionals who had nothing to do with your care and do not know your doctors, to review your records.

When You Might Have a Case

Most medical malpractice cases involve certain characteristics. Yours may have some or all of them, including the following:

  • The doctor and/or medical facility did not adhere to the standard of care that those in the medical profession are held to. These are standards that constitute acceptable medical treatment in similar circumstances.
  • In addition to the standard of care, you must show that the doctor or medical professional/facility was negligent and that the negligence caused your injury. If the doctor was negligent but did not cause an injury, you do not have a case. Furthermore, if the doctor caused an injury but not out of negligence, you do not have a case. However, it is better to let an attorney and expert witnesses determine whether negligence was involved in your injury.
  • You must be able to show that the spinal cord injury caused significant damage. This might include the loss of a limb, constant pain and suffering, long-term or permanent disability caused by the doctor’s actions or inactions, or other medical issues that may have been caused by the doctor or medical facility.

You may have a medical malpractice lawsuit if a doctor does not diagnose your condition properly or doesn’t diagnose it at all, performs unnecessary surgery, discharges you too soon, ignores lab results or reads them improperly, gives you the wrong medication or the wrong dosage, performs surgery at the wrong site, does not order the correct testing, does not recognize your symptoms, does not take your patient history or ignores it, or does not provide proper aftercare.

Of course, these are only some factors that may contribute to medical malpractice. If you feel that you have a medical malpractice claim, contact Emroch & Kilduff at (804) 358-1568 to schedule a free consultation with an experienced attorney.