However, the potential harm surgeons can inflict on patients during spinal surgery depends heavily on when, and if, a surgeon realizes their mistake. In this article, I will discuss the intricacies of wrong-level spinal surgery and considerations for attorneys in deciding whether to pursue a malpractice suit.
Wrong Level Prevalence
Technically, there really is no spine surgeon who has not operated at the wrong level. This is because it is not uncommon for a spine surgeon to expose a level and check an x-ray in the operating room only to realize that he is at the wrong level. At this point, the surgeon should simply expose the correct level and perform the rest of the surgery. Regardless, the surgeon still technically performed part of the surgery (the exposure) at the wrong level. However, since the surgeon corrected himself and performed the entire planned surgery at the correct level, he might argue that he did not harm the patient.
Correctable Level Mistakes
It is incorrect to say that a spine surgeon who was at the wrong level at any point of the surgery did not harm the patient at all. The degree of harm done, however, is dependent on when the surgeon corrected their mistaken level. In the example of an L5-S1 herniated disc, if the surgeon completed the entire surgery at the wrong level—requiring disconnecting the tissue attachments such as the muscles to the bony part of the spine—one can argue that the spine was made unnecessarily weaker. Technically, this is correct. Realistically, this weakness would be so minimal that the patient will hardly notice it. In this scenario, patient harm would be very hard to prove. A malpractice claim against a surgeon who only exposed at the wrong level is frivolous, weak, and a waste of resources.
Discectomies & Fusions: Greater Degree of Harm
If a discectomy occurs at the wrong level, however, the harm is more significant because the disc space has been violated. Often, this leads to further degeneration and instability. If a fusion has been done, the harm is the greatest. Here, the surgeon has permanently deprived the patient of a mobile part of the spine. This can lead to further and rapid degeneration of the adjacent levels. This is particularly harmful to the level that should have been operated on in the first place. All this harm is in addition to the fact that the patient still has the initial problem at the level for which they sought spine surgery. The only exception here is if the surgeon recognized the wrong level surgery in the operating room and performed additional surgery at the correct level.
How Spinal Surgery Errors Occur
How does wrong level surgery happen? It may seem unlikely especially since x-rays are done to check for the correct level. All of the wrong level spine surgery cases I’ve been involved with occurred with x-rays performed in the operating room. These x-rays confirm we are at the correct level. The x-rays do not lie. In these cases, the mistake occurs because of human error. The surgeon makes mistakes in interpreting the x-ray or translating results to the surgical team. There is no perfect system and human error does happen.
It seems horrific to perform surgery at the wrong level. But it becomes a very defensible case if the physician does a few things. In the event a surgeon performs the wrong level surgery, they should do the following, which are the standards of care:
- Recognize that wrong level surgery was done. The recognition can be made in the operating room or in follow-up films in the outpatient clinics. It’s possible that a surgeon doesn’t realize they’ve operated on the wrong level in the operating room. However, it’s below the standard of care if a spine surgeon cannot recognize the wrong level surgery in follow-up imaging studies.
- Inform the patient and family. When a surgeon realizes this mistake, they should inform the patient and/or family as soon as possible. Any other action is simply below the standard of care.
- Offer to perform the correct level surgery, and do so if the patient agrees to the procedure. It is the standard of care for a spine surgeon to offer to perform surgery at the correct level. It’s then up to the patient to decide whether they want that surgery. The patient must also consider if they want the surgery from the same surgeon.
Malpractice Offenses
If a surgeon doesn’t recognize they’ve performed the wrong level surgery or try to hide the fact, then this becomes more difficult to defend. In every case, the patient needs to have surgery at a certain spine level. If a surgeon operates on the wrong level, the patient’s problem has not been addressed. In this case, a patient will likely continue to have the same symptoms.
If the surgeon lies to the patient, then the case is simply indefensible. An expert witness testifying that the wrong level surgery was done to reach the correct level is also a lie. This is simply anatomically impossible in the spine. Further, it’s unethical. Attorneys who use this win-at-all-cost technique make it impossible for courts to adequately compensate patients when true medical errors occur.
