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  • California Workers Comp Medical Malpractice

    I was HOJ Feb '06, 3 level spinal fusion Oct '08. Follow-ups I was given the surgeons NP or their OM.
    Feb '09 OM tells me looking at Jan '09 x-rays everything looks great. I complained again about the pain I'm still in and an increase of pain in my leg. He tells me "the nerves are growing back and holds up his fingers to show approx 1/4 per month, thus the leg pain".

    April '09 same OM new xrays, says "everything looks great I'm sending you back to work light duty few restrictions". I flat out asked him "am I fused"? He said "Yes everything looks great, but we were not worried about the fusion but everything above it due to the stress on the vertebras" "Again everything looks great"

    Fast forward I'm sent to a lawyer agreed AME to sign off on the surgery who takes his own x-rays.
    First thing he says, "your surgery was a failure, you are not fused"." Are you open to more surgery"? I asked is that why I'm still have back pain and my leg pain has increased. He said "I have a loose screw at S1,which could be causing the nerve pain in my leg".
    He also said "looking at the MRI's he doesn't understand why I had the surgery in the first place, but will reread the reports maybe he missed something".

    Questions: Do I have a case against the surgeon if the report shows I didn't need the surgery at this point and it failed?
    Case against the OM from surgeons office for stating I was fused, when clearly I was not? Nor did he mention the loose screw.
    I have a WC lawyer now, is this something he should be looking into, or should I get a different one?
    Thank you for your time!
    Last edited by lil texas; 09-03-2009, 04:05 AM. Reason: misspelled words

  • #2
    The AME is a Agreed Medical Evaluatior...as such, you do not have a patient/treater relationship with this doctor. S/He is simply providing a medical opinion on the disputed medical issues in your claim.

    "Malpractice''...? Your PTP/Primary Treating Physican is looking at MRI/X-ray films, and Radiologists reports... understanding the medicine is not an 'exact science', but the Dr's are simply 'practicing' their craft, it would be difficult to find actual malpractice in your PTP actions. The AME is likely reading the films/reports in a different manner. Additionally, there may be a significant time lapse in the wait for the AME appt. and time to see a report. All kinds of things can occur.
    He also said "looking at the MRI's he doesn't understand why I had the surgery in the first place, but will reread the reports maybe he missed something".
    That doesn't mean you should not have had the surgery...only that the AME doesn't see why you did.
    Under Calif law, you must have a second opinion from a Neuro surgeon or Ortho surgeon, both of which must be Board Certified. Is the AME either of those specialties....?

    Once you have a spine or other surgery, it would be difficult for any doctor to find you should not have had the procedure in the first place... that's what the surgery is for. To relieve the prior problem.

    It does take about a month per inch for a damaged nerve to rejuvinate...IF it will. There is also a time factor for a fusion to become complete...generally more than six months, many cases are a year or longer. Oft times too, the hardware must be removed after what could seem a short period of time.
    Do I have a case against the surgeon if the report shows I didn't need the surgery at this point and it failed?
    A case ?... For what ?...you did not pay for the treatment/services. You haven't ''lost'' anything but your time for the surgery/recovery...and likely were paid wage loss/TTD for that. Doubt there is a claim for anything here... but a atty would have to answer that, as well as how much it will cost you in legal fees. Malpractice attys don't come cheap, and don't take these on contingency.
    Case against the OM from surgeons office for stating I was fused, when clearly I was not? Nor did he mention the loose screw.
    What is "OM"...and NP ? (I've been dealing with WC in Calif since 1994 and never have I seen those....)
    You don't have a 'case' for this... no state can legislate 'opinion'. You could have 16 doctors look at your films and have no concensus one way or the other... it's opinion.
    I have a WC lawyer now, is this something he should be looking into, or should I get a different one?
    It isn't likely your WC AA is handling anything more than the comp claim. If you think you'd like to pursue this further... get out your check book...court filing fees, deposition fees...expensive by the way... and other misc 'litigation fees' come to mind. IMHO...drop this issue. Concentrate on your recovery and successful RTW.

    BTW... you are capped at 104 weeks of TTD paid within 5 years of your org DOI/Date Of Injury. If you are approaching that, or passed it, and your PTP continues to certify your TTD status, you should file for SDI/State Disability Ins benefits...those will pay an additional 12 months/max in benefits.

    You might benefit from the info for IW's in the Fact Sheets here http://www.dir.ca.gov/dwc/InjuredWorker.htm. There is also a help sheet for common acronyms used in WC/Workers Compensation.

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    • #3
      I had to have the surgery redone

      My new ortho did a CT and found that a screw was an inch into the muscle right next to the eliac vein and it was loose. The other screw on that side was misaligned also, remainder 3 screws were loose. First surgeon also removed a disc and put nothing in it's place.He could of done a CT to find out why 7 months later I was still in so much pain, instead he tells me I am fused and releases me. Looking at the xrays he took you can see the lack of fusion and loose screws,so why release me rather than fix?
      The new surgery with new ortho took 7.5 hrs instead of the planned 3.5. New ortho said the screws that were not misalinged were so loose he simply pulled out rather than having to unscrew so to speak.
      I understand what you are saying, no I did not pay for the treatments I have had so far, but does that give a doctor the right to put me through hell? When they approved the new surgery I was so screwed up in my head due to the pain from the first surgery and it being ignored for so long that I refused to have it until I talked to a shrink. I just feel these doctors should be held responsible for their actions. I know there are other patients that had the same surgeon and new ortho has had to fix them as well.

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