Final Verdict: Surgeon Botches Back Procedure
Neuroscience carries perhaps more mystery and uncertainty than any other area of medicine. Physicians who train to perform neurosurgery go through a rigorous and exhaustive regimen of classes and practice before they are trusted to operate. The ability to alter or repair the communications network of the human body is a grave skill with permanent consequences if done improperly.
Because neurosurgery requires a great deal of skill and always involves some risk, it can be difficult to determine whether a particular medical mistake was the result of negligence or simply an unavoidable outcome. Just because an adverse outcome takes place doesn’t necessarily mean anyone was reckless or negligent. Additionally, certain neurosurgical procedures are more likely to involve complications than others. Understanding and discussing these risks in advance can help protect a physician from liability while also ensuring the patient is able to make an informed decision.
When a surgery goes wrong, it’s vital to make an objective assessment of what happened, why it happened, and whether the outcome is a consequence of any mistakes. Even when mistakes happen, they are often benign or do not change the final result. A surgery with significant known risks may turn out poorly regardless of whether mistakes were made. In order to demonstrate medical malpractice, the mistake must be significant and severe, a deviation from the ordinary medical standard of care.
Lumbar fusion is a surgical technique in which the vertebrae of the lower spine are fused together by surgery in order to correct existing damage and prevent further harm. This can help treat severe back pain that has failed to respond to other treatment options. In 2012, 45-year-old laborer Harry Rowe suffered a back injury at work which he attempted to treat for years without success. Ultimately, he began treatment from Timothy Burke, a neurosurgeon, and progressed to spinal fusion surgery. However, Dr. Burke placed the instrumentation for the surgery in the wrong position in Harry’s back, causing it to be unsuccessful. He used bone morphogenetic protein in an attempt to promote bone growth. Dr. Burke made a second attempt, but it was also fruitless. Eventually, Harry had to see a different neurosurgeon have the surgery performed right.
Harry brought a lawsuit against Dr. Burke for medical malpractice, unnecessary procedures, and surgical error. He argued that Dr. Burke’s mistakes had necessitated both the second and third surgeries, that the use of bone morphogenetic protein was unnecessary, and that the instrumentation placement was negligent. He claimed $164,000 in excess medical costs and $60,000 in lost wages, not including pain and suffering. Cohen & Cohen, P.C.
During the three-day trial, Dr. Burke claimed that the placement of instrumentation was due to migration over time, a known risk of the procedure. He also claimed that the use of bone morphogenetic protein was appropriate for the surgery.
The Anne Arundel County jury listened carefully to the arguments from both sides and deliberated for an hour and a half before returning with a verdict for Harry. They found that Dr. Burke had committed medical malpractice and awarded Harry $528,338 in medical costs, lost wages, and pain and suffering.