As unsettling as it is to patients, with virtually any medical treatment or surgery, there are some risks involved. This means that bad things can happen even with appropriate care. Getting those risks out in the open before a patient agrees to proceed with the treatment is the goal of the informed consent process.
In my career as a Houston, Texas medical malpractice lawyer, I frequently hear hospitals, doctors, and their attorneys arguing that a patient signature on an informed consent form wipes out any responsibility on the part of defendants. That’s simply not true.
What is true is that the patient can never consent or give permission for a doctor or other healthcare provider to provide sub-standard or negligent treatment. Even in those situations when a complication itself isn’t negligent, the surgeon, physician, and nursing staff still have an obligation to observe, monitor, and manage the problem appropriately.
What is an incidental durotomy?
A good example that comes to mind is a spine surgery complication called incidental durotomy.
During a spine surgery, it’s a known risk that the surgeon may accidentally puncture the protective outer layer of the spinal cord or nerve roots called the dura mater. When this happens, it's called an incidental durotomy.
After handling multiple medical malpractice cases involving this complication, I know from spine surgery experts that it isn’t negligence when a surgeon damages the dura mater by causing an incidental durotomy. That’s not the end of the investigation, though. There are two more questions that must be asked.
First, did the surgeon recognize and repair the incidental durotomy? If “yes,” then there was no negligence up to that point.
Second, once a surgical complication occurs and is recognized, the standard of care requires the surgeon and nursing staff to be extra vigilant in watching patients in the post-anesthesia care unit (PACU) or recovery room, as well as when they’re transferred to the floor, up until discharge.
The reason for this is even a repaired incidental durotomy raises a patient’s risk for serious medical problems.
Surgeons should order increased neurological monitoring and nurses should immediately report anything unusual to the surgeon. At the first sign of concern, the surgeon should order a stat (emergency) MRI to investigate the cause.
Medical problems that an incidental durotomy can cause
From my experience in handling a number of cases involving the complication of incidental durotomy, I’ve seen two specific medical problems where there is an increased risk that a healthcare provider should keep in mind.
One is epidural hematoma, or accumulation of blood, that compresses the spinal cord or nerve roots. When this develops, it’s a medical emergency and requires an immediate return to surgery to decompress the spinal cord or nerves involved before there’s permanent damage.
I’m working on a medical malpractice lawsuit now where a patient had a lumbar laminectomy surgery that was complicated by an incidental durotomy. After the surgery, the patient complained of numbness from the waist down and that he wasn’t able to urinate or make a bowel movement.
The nursing staff documented the numbness, bowel and bladder problems, and also the fact that his lower extremity reflexes were weak. Yet, they waited over seven hours before notifying the surgeon of this constellation of symptoms. Oddly, even after the surgeon learned of what was going on, he didn’t return the patient to surgery or order an emergency MRI. In fact, by the time the patient was discharged, there had been no evaluation or treatment of his symptoms. Some people think it was a cover-up. They may be right.
The other medical problem is a hemorrhagic stroke. While this is a rare complication, it is still something that should be on the surgeon’s radar, particularly for patients who have a past medical history of stroke or transient ischemic attack (TIA).
That was exactly the situation of a client whose case I’m working on now. He had a past medical history of a TIA and had a multi-level lumbar laminectomy at a major hospital in the Texas Medical Center. During the surgery, the surgeon’s grip of the drill slipped and compromised the dura mater. The surgeon documented the incidental durotomy and attempted to repair it, but after the surgery, he shared with the patient and his family that he didn’t think he had been successful.
Despite these facts, the surgeon didn’t order any heightened monitoring of the patient to look out for neurological changes. The nurses also took a lackadaisical attitude, not performing appropriate assessments or notifying the surgeon or any physician when they saw something unusual, including slurred speech, word-finding difficulties, somnolence (sleepiness), and confusion. In the case I’m handling now, my client ended up paying the price by having a hemorrhagic stroke, which is bleeding in the brain.
The thing that is so devastating about a hemorrhagic stroke is that once it occurs, whatever damage it causes is permanent. That’s why it’s so important for nurses and physicians to be on the lookout for the earliest signs and symptoms, which may allow a surgeon or neurologist to intervene and stop the bleed before significant damages occur.
Hiring a top Houston, Texas medical malpractice attorney
Medical malpractice cases in Texas present a lot of hoops to jump through. Cases involving surgical complications, like an incidental durotomy, require careful investigation and attention to meet the legal requirements for expert witnesses. A top Houston, Texas medical malpractice lawyer has the experience and competence to guide you in the right direction.
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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
