Perspective: Cauda equina lawsuits: Gambling or litigating?
By Charles A. Pilcher MD FACEP
May 2012
The March issue of the journal Orthopedics presents a study by Daniels et al on the outcome of litigation for cauda equina syndrome (CES). The study was retrospective and used Lexis Nexus reports from 1983-2010. [Editor’s Note: One must be skeptical of this approach when the study found only 15 lawsuits against a practitioner suitable for evaluation over this 27 year period.]
The key takeaway from this study is that the only factor significantly favoring a plaintiff verdict was the time from onset to the time of surgery. While CES is described as a “true orthopedic surgery emergency,” plaintiff victories are only more common when that time exceeds 48 hours.
Specifically, the following are NOT associated with a plaintiff victory:
- presence or severity of permanent functional loss
- initial presentation with loss of bowel or bladder control
- presence of saddle anesthesia on presentation
- loss of sexual function
- provider surgical specialty (orthopedic surgeon or neurosurgeon)
- initial setting where patient presented for treatment.
Because compression of the cauda equina is not a good thing, one would intuit that removing the pressure is beneficial, and the sooner the better. What is not intuitive is that 48 hours is the cutoff point. Three referenced articles (1), (2) (3) (and several others obtainable by a simple internet search) support that unduly long time frame. All references seem to have little relationship to the current standard of practice of operating immediately upon diagnosis. In fact, some of the delays extended to several days and weeks. The bottom line is that delay beyond 48 hours in both diagnosing and surgically correcting the problem is clearly more difficult to defend, with 83% of cases in the present study finding for the plaintiff under that circumstance.
As usual, good instructions to the patient with back pain or sciatica to report immediately any abnormalities in bowel or bladder function are mandatory, and if absent, markedly increase the likelihood of a plaintiff victory.
Adding to the confusion on this subject is the fact that in the present study, 75% of the patients analyzed did not have true bowel or bladder dysfunction at presentation, thus arguably did not have true CES. Further, even patients receiving the most expeditious treatment can be left with permanent disability.
Thus each case must be pursued and defended (or gambled upon) on its individual merits. Despite what may seem to be a rather simple situation, alleged delay in diagnosis or treatment of CES remains as much a matter for the courageous gambler as the skilled litigator.