Patients in Illinois with an unexpected amount of back pain after undergoing surgery may be able to file a medical malpractice lawsuit, depending on their circumstances. For example, if a patient undergoes surgery and experiences more pain afterward then what he or she was enduring prior to the operation, the patient may be eligible for compensation.
A man in a similar situation was a part of a recent case of alleged medical malpractice that was addressed in court. He says that his first back surgery — a discectomy — was successful and relieved the back pain like predicted. However, when he fell and his back pain returned, a recommended second surgery caused severe amounts of pain instead of creating relief for the man.
The second surgery was another discectomy and reportedly held more risk than the first surgery at alleviating pain because of the scar tissue from the initial surgery that could damage nerves. According to the patient, he was in much more pain after receiving the second surgery.
He said that he was never given a consent form to sign or was informed of these reported risks. His surgeon said that he does not remember getting oral consent from the patient, but believed that he did because he always had from his other patients. The disagreement between the patient and the surgeon was underscored throughout the trial.
Regardless of whether the patient gave his consent, his inability to have his pain directly connected to the surgery was what caused the case to be dismissed. The presiding judge wanted an expert testimony on the topic, but the plaintiff and his attorney failed to present one.
According to reports, an expert with the defense, during a pre-trial deposition, had said that no other factors could have caused the pain besides the surgery. However, the expert would not make a conclusive statement for the court. Ultimately, the judge dismissed the lawsuit for lack of hard evidence between connection of the surgery and the elevated back pain, as well as the lack of expert testimony.
Source: Outpatient Surgery, “Malpractice Case Pits Informed Consent Vs. Expert Testimony,” Leigh Page, Jan. 9, 2012