Evidence That Prompt Diagnosis of Post-Surgical Complication Would Have Prevented Permanent Injury Sufficient to Prove Malpractice

Immediately after spinal fusion surgery, a patient began experiencing the signs of cauda equine syndrome (CES), a compressive neuropathy involving multiple nerve roots affecting motor, sensory, bowel, bladder, and sexual function. The surgeon did not examine the patient following the surgery and did nothing for ten days, at which point a second surgery was performed. The second surgery did not provide relief. The patient was permanently disabled due to nerve damage. He sued the surgeon for malpractice, alleging, among other things, negligent post-operative care.


The plaintiff’s expert testified that the CES was caused by the manner the original surgery was performed, and that the standard of care required the surgeon to examine the patient immediately after surgery. Post-operative examination would have revealed the signs of CES, a medical emergency requiring immediate surgery. Immediate treatment would have given the plaintiff an 80% chance of complete or partial recovery. A jury found the surgeon negligent and awarded the plaintiff damages.


On appeal, the surgeon argued that the testimony amounted only to evidence of a mere loss of chance to achieve a better medical outcome, an invalid cause of action.


The appellate court affirmed that Alabama does not recognize a cause of action for lost chance of a better recovery, instead requiring sufficient evidence that prompt diagnosis and treatment would have placed the patient in a better position than the one resulting from inferior medical care. However, the expert’s testimony was not merely evidence of a lost chance for a better recovery. Rather, the testimony was that the surgeon’s failure to timely diagnose and treat the plaintiff’s symptoms resulted in irreversible nerve damage.


The court found the evidence established that the patient's injuries were proximately caused, as an element of medical malpractice, by the neurosurgeon's postoperative care following the fusion surgery. The medical expert testified that the neurosurgeon did not examine the patient following the initial surgery even though the patient was experiencing classic signs of CES immediately following surgery, that CES can occur as a postoperative complication of lumbar-spine surgery, that urgent neuroimaging studies of the lumbar spine are advised in all cases of postoperative CES, that if a there is a compression then immediate surgical decompression is necessary, that the neurosurgeon should have examined the patient and operated on him within 48 hours rather than 10 days so that the nerves of the cauda equina could be decompressed, and that timely decompression surgery would avoid permanent, irreversible injury to the nerves.


The jury verdict awarding compensatory damages of $1,650,000 to the patient and $500,000 to the wife was affirmed.


See: Hrynkiw v. Trammell, 2012 WL 1650358 (Ala.  May 11, 2012) (not designated for publication).