The Statute of Limitations Blocks Back Surgery Malpractice Suits

People are typically encouraged to file accident reports or take other action immediately following car accidents or injuries on the job even if they don't appear to be hurt. A large part of the reasoning behind this is that symptoms might not manifest immediately. Back injuries seem to be notorious for taking a long time to cause significant pain. Athletes and truck drivers often don't feel the effects of their lifestyle and career until after retirement and this is not always due to getting older.

The general consensus in regard to back surgery seems to be that it often makes things worse. My first spinal fusion surgery was scheduled after ten years of doctors failing - or, should I say, refusing - to diagnose an L5/S1 grade three spondylolisthesis. The doctor showed me on the xray that my L-5 vertebrae was literally hanging over the sacrum and the pressure had been cutting off energy to the nerves for quite some time. I was told by a chiropractor that spinal fusion causes all of the vertebrae above the fused area to compress. L5 is the fifth lumbar vertebrae in the lower back and S1 is the sacrum. The area that was fused supports my entire spine, including my neck. Although a diagnosis and surgery came only after my left leg shriveled up with only a layer of skin remaining over my shin bone, my left foot became completely paralyzed and all of my discs had disintegrated, I vowed that this would not happen to me. After all, I'd always been athletic and had used walking, yoga, muscle toning and free weights as means of pain control when doctors dismissed me as a neurotic, lazy female. With the exception of one chiropractor, doctors assumed that my ability to remain flexible and to exercise were an indication that I was "faking" it. The chiropractor explained that my hour-long morning workout raised my endorphins enough to get me through until about two or three in the afternoon. I was amazed at how accurate he was about the time that they wore off.

Despite this experience, I planned to return to my fitness routine as soon as possible post-surgery. I focused on the mind-body connection and going into it with a positive attitude. I created an affirmation that I repeated constantly: "My spine is fine." Two months prior to surgery, I got my hands on Dr. Andrew Weil's Sound Body, Sound Mind: Music for Healing. I played the CD's every night as I was falling asleep and whenever I had a chance to sit quietly with headphones. When I met with the anesthesiologist, I requested that the doctor and surgical team tell jokes and play music and refrain from making any negative comments. I should have asked that this extend beyond surgery, since the neurosurgeon told me that it was "the worst I've ever seen" when he made his rounds. He also stated that "you must have one hell of a pain tolerance. I don't know how anyone could live like that."

I spent two months in recovery at home and the neurosurgeon offered me another month if I wanted it. I followed his instructions for daily walks although it was August in Oklahoma and over 100 degrees. I began some very gentle yoga three weeks after surgery because sitting in my recliner was becoming very uncomfortable. I chose to return to my position as a child welfare worker because my supervisor had begun to call me out of necessity after about six weeks of leaving me alone to heal. The doctor released me back to work with "no restrictions" although he was told what I did for a living and how much time I spent sitting at a computer and driving long distances.

Despite following through with my plan and intention to heal, my pain was not reduced. In fact, it increased. Driving became so painful that I missed exits and sometimes was not sure where I was. I often found it necessary to attempt to drive standing up to get the pressure off my sciatic nerves. The pain would begin as typical sciatica but the longer I drove, the further down my legs it moved, all the way to my toes. Other times, I found myself falling asleep at the wheel. I went through a period of being afraid to fall asleep at night because I would be in more pain in the morning. The weight of my own body on the damaged nerves for six to eight hours negated any reduction in pain that I might have felt during the day.

Again, my complaints were ignored. During my second week of work, one of the kids in my care grabbed me around the waist to hug me and pulled me down to the ground. (It's sad that a foster child would love his social worker, but that's another lens). The neurosurgeon said that a forty pound child could not have possibly hurt me.

Several people shared stories of the surgical hardware breaking or turning. When I mentioned this to my neurosurgeon, he said that he'd "never heard of such a thing." My D.O. took several xrays and reported that "It's fused, you're fine." Yet he himself and every new doctor I saw who took an xray, including looked at the films in shock and asked me "Have you seen this?" The sight of two tiny rods and four huge screws strongly resembled a medieval torture device. If it occurred to them that the hardware was causing pain, they did not express it verbally.

It only recently occurred to me that as a D.O. and not a neurologist or related specialist, he was not qualified to make the judgment as to whether the surgery was successful. Even if nothing else about my case constitutes malpractice, his failure to refer me to an appropriate specialist does.

Five years after surgery, I was finally sent to a pain control clinic. The doctor there scheduled a steroid shot procedure and also referred me to another specialist. Thank goodness that I forgot about and missed the steroid procedure, because it took the new neurosurgeon all of ten minutes to come back into the examining room and say to me, "Has anyone told you that it's broken?" My reply was, "No, but that would explain a lot." One rod was broken in half on a slant like a spiral fracture and the other was bent at a 90 degree angle.

Surgery was scheduled and the hardware was removed. The doctor reported that he had chosen not to re-fuse my vertebrae. At the time, I felt that he probably did the right thing but further consideration raises more concerns. If the hardware broke shortly after the first operation, the bones did not fuse properly. In fact, the first xrays taken showed that the spondylolisthesis had improved from a grade three to a grade one. At the time of the second surgery, it was a grade two. I fully expected to feel better after the hardware was removed, but again, there was no reduction in pain and new problems developed. My knees became stiff and the pain moved from my lower back to the thoracic (middle) spine. Muscle spasms in my legs and upper back became more frequent and sometimes lasted as long as three weeks. I became increasingly exhausted. I felt as though I hadn't slept at all even after ten to twelve hours of sleep. I became increasingly moody, irate and depressed.

At my annual physical, I tested positive for lupus and rheumatoid arthritis, the rheumatologist diagnosed me with fibromyalgia. Tests for thyroid and diabetes turned up negative. My symptoms included everything on the lupus list except for the butterfly rash. I asked the D.O. how I could test positive and then magically test negative. He said, "Oh, that's normal." I've since found out that it is, because most people go into remission for a few years when lupus first appears. Less than fifty percent of lupus patients experience the butterfly rash that supposedly confirms the condition.

I felt like a prisoner in my own body. I spent six years earning my Master's degree and did not want to go on disability. My doctors seemed to think I did, though. They continued to ignore my chronic pain and even getting a prescription for pain medicine was like pulling teeth.

I went through a period of pain that seemed to be at a more intense level than before the initial surgery. Today, I think that I had just reached my limit or crossed a threshold - by this time I had been dealing with this for 18 years. The incongruence of what I wanted to be doing and what I was capable of doing with my life was tearing my spirit apart. I was too young to be old.

I became dangerously angry and had vivid fantasies about killing every single one of my doctors, including the one who had removed the hardware. He only came to see me once in the hospital and had also told me that he found some little bumps all over my spine that "for lack of a better thing to call them" were bone spurs and that he had ground them off. It only recently occurred to me that he never investigated what these actually were and that they were only removed where I had been cut open. If they were bone cancer I would have been dead a long time ago, but they could be covering my entire spine and causing pain.

Doctors don't have a problem with lying. I read all of my records after the second surgery and found several discrepancies. For instance, neurosurgeon number one had written that he had told me of the problems that could occur with pedicle screws although verbally, he told me that he had never heard of such a thing. He also denied any knowledge of the class action suit against pedicle screws that a co-worker had warned me about. She begged me not to have the surgery and even gave me the name of an attorney but I was in horrific pain and becoming paralzyed. I felt that I had no choice but to take the risk.

I've talked to several attorneys and all are sympathetic and believe that I should have a case. But there's a little thing called the "statue of limitations" on malpractice that's in the way and I got the impression that it is very difficult to sue over back surgery. Although I experienced problems right away, I believe that two years is not long enough to determine medical mistakes and malpractice in cases such as mine where the effects increase over time. Chronic pain impacts mental and emotional health and affects every single aspect of a person's life, from family to career. Two years is not long enough to assess and prove the damages that are likely to follow.

Some of the nerve and muscle in my leg did return and my foot is still 30 percent paralyzed. I have muscle spasms that turn my leg around backwards and don't subside until they're finished. I know now that I'll be living with chronic pain for the rest of my life and pray that it doesn't get any worse than this. This past year, I finally accepted that I can no longer work full time and gave up my job as a social worker by mutual agreement with my employer. I'm seriously considering applying for disability benefits.

With this lens, I plan to share my experience and what I could and should have done to protect myself. My experience is with back surgery, but similar mistakes can occur even with routine medical care. It's too late for me, but I hope that this information can help prevent others from living a life of chronic pain that was completely preventable.