This West Coast veteran had low back issues. After evaluation, the VA recommended surgery and the patient agreed. The recommended surgery was in his low back, a bilateral decompression at L3-4-5 and placement of hardware at L3-4 and L4-5. The surgery took place as scheduled and the doctors reported that all went well – “no complications.”
Unfortunately, the veteran’s back problems didn’t resolve. He went to his follow up visits and was told that his course was normal. Two months after the surgery, he presented to the ER. An MRI showed “surgical changes” at L2-3 and L3-4. The VA neurosurgeon had operated at the wrong level.
To its credit, the VA acknowledged the error with an “Institutional Disclosure of Adverse Event” affirming the “incorrect placement of hardware from surgery.”
A few months later, the veteran had another procedure intended to resolve the problem. It was not a full decompression, however. The post-operative radiology studies still showed significant compression at the L4-5 level. Not surprisingly, the patient’s symptoms were not improved.
Back surgery cases are notoriously problematic ones. Even when they are done perfectly, patients might get no relief (or even get worse). In this case, the veteran had pre-existing significant back issues. That is why he needed the surgery. Still, operating at the wrong level was a clear error.
The decision about the redo surgery was a tougher case. Doing it was a judgment call, likely an erroneous one but also one which the government could likely defend.
The reality was that a third procedure at this level would have a much higher complication risk and lower likelihood of success.
The veteran had lost his chance to get better.
We filed our claim with the VA. Nothing happened with it. Our history with this office was that it would not likely make a serious effort to resolve the case. We concluded that we would need to file suit and we told the VA we intended to do so. Somewhat to our surprise, serious negotiations ensued.
We were in a jurisdiction with a $500,000 cap on non-economic damages. The economic losses were limited and relatively soft. Hence, we were very pleased with this $350,000 settlement.
It’s noteworthy that at the same time we resolved this matter, we were concluding a litigated case in the same jurisdiction. Factually, the cases were quite different. The other one involved a failure to diagnose cancer. However, both cases involved clear errors by the VA healthcare providers. The other similarity was that the same VA office had been involved at the claim stage.
Maybe those VA lawyers got the message that we were serious. We would file suit and successfully prosecute it if we needed to do so.
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