A Medical-Legal Guide to Spinal Surgery - By Samuel D. Hodge, Jr.
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169
Journal of Health & Biomedical Law, XVII (2021): 169-208
© 2021 Journal of Health & Biomedical Law
Suffolk University Law School
A Medical-Legal Guide to Spinal Surgery
By Samuel D. Hodge, Jr.*
“You only really discover the strength of your spine
when your back is against the wall.”
---James Geary
Patricia Jones, a 56-year-old payroll manager, suffered from neck discomfort and
radiating pain because of a herniated disc. She underwent a laminectomy but
complications arose during the procedure. A small fragment of the vertebra broke off and
became embedded in the protective covering surrounding the spinal cord.1 The
neurosurgeon forged ahead despite the complication and wrote in the post-operative note
that no adverse events had occurred during the surgery.
The patient’s blood pressure plummeted the next day and she developed
paralysis. A computed tomography scan (“CT scan”) was not ordered until three hours
later and it revealed an epidural hematoma.2 The neurosurgeon dismissed this finding and
said that no accumulation of blood was present that was pressing on the spinal cord. If a
proper diagnosis had been made, the hematoma could have been promptly evacuated.
Instead, the mistake rendered Ms. Jones a quadriplegic.3
At trial, the defense argued that the patient suffered a spinal cord infarction,
nothing could have been done to prevent it, and the informed consent document covered
the problem.4 Following a five-month jury trial, Mrs. Jones and her husband were
awarded $55.9 million in damages.5
I. Introduction
Many legal and insurance professionals do not understand the indications and
limitations of spinal surgery. For instance, the mere finding of a herniated disc or other
* Samuel D. Hodge, Jr. is an award-winning professor at Temple University where he teaches law,
anatomy, and forensics. He is also a member of the Dispute Resolution Institute where he serves
as a mediator and neutral arbitrator. He has authored more than 185 articles in medical or legal
journals and has written ten books including co-authoring the text, The Spine For Lawyers,
American Bar Association. Professor Hodge enjoys an AV preeminent rating and has been
named a top lawyer in Pennsylvania on multiple occasions.
1 Robert Brum, She Became a Quadriplegic After Spinal Surgery. A Jury Awarded her $56M Malpractice
Verdict, USA Today (Aug. 12, 2019),
https://www.usatoday.com/story/news/nation/2019/08/12/woman-wins-56-million-
malpractice-verdict-after-botched-spinal-surgery/1994020001/.
2 Id.
3 Id.
4 Id.
5 Id.170 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
abnormality on magnetic resonance imaging (“MRI”) may not be clinically significant especially
when such a large percentage of asymptomatic people have these findings.6 Spinal surgeries are
also not created equal and one must understand the differences to properly present or defend
a back surgery claim. Damage awards must also be considered as a possible reason that can
influence claims for severity and duration of symptoms regardless of the method of treatment
employed.7
This article will provide an anatomic overview of the spine with a discussion of the
parts that make up this structure, the cushions that permit the spine to bend, and the tissues
that hold the vertebral column together.8 A description of spinal injuries and surgical
interventions is also presented along with a discussion of the risks and limitations of these
procedures.9 This will be followed by an examination of the malpractice implications of spinal
surgery and a representative sample of court cases involving the different surgical approaches
involving the spine.
a. Back Pain Statistics
The spine consists of an array of vertebrae, intervertebral discs, nerves, a spinal
cord, and soft tissues. It is a common assumption that this structure is frail or vulnerable
and that people must be cautious not to hurt it is wrong.10 The spine is a very sturdy and
robust configuration crafted to do its job. Yet, it is a great generator of pain11 and one of
the most common medical ailments that affects eighty percent of the population at some
time during their life. This discomfort can be a dull ache or an excruciating pain.12 Acute
spinal discomfort typically persists from a few days to a few weeks but if it becomes
chronic, the pain can continue for months.13
Back pain is the foremost reason for disability around the world, prohibiting
countless individuals from working or engaging in everyday activities. It is also one of the
most common reasons for lost time from work and fifty percent of employees
acknowledge having back pain symptoms annually.14 Age is not a determining factor and
most causes of back discomfort are mechanical or non-organic, meaning they are not
produced by a serious problem, such as inflammatory arthritis, infection, fracture, or
cancer.15 Statistically, it exacts a huge financial toll costing the economy more than $215
6 See JMS Pearce, Aspects of the Failed Back Syndrome: Role of Litigation, 38 SPINAL CORD 63, 66
(2000), https://www.nature.com/articles/3100947 (“[C]onsiderable radiological ‘abnormalities’
commonly exist in people devoid of symptoms and complaints.”).
7 Id.
8 SAMUEL D. HODGE, JR. & JACK E, HUBBARD, THE SPINE FOR LAWYERS: ABA MEDICAL-
LEGAL GUIDES 409 (2013).
9 Id.
10 See HODGE & HUBBARD, supra note 8, at 409.
11 See HODGE & HUBBARD, supra note 8, at 409; see also Back Pain, MEDLINE PLUS,
https://medlineplus.gov/backpain.html (last visited Mar. 25, 2021).
12 Id.
13 Id.
14 Back Pain Facts and Statistics, AM. CHIROPRACTIC ASS’N,
https://www.acatoday.org/Patients/What-is-Chiropractic/Back-Pain-Facts-and-Statistics (last
visited Mar. 22, 2021).
15 Id.2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 171
billion annually.16 Back pain is also the most common cause of disability in those under
forty-five years of age.17
b. Treatment Options
The necessity for care of these individuals, combined with the poor
comprehension of the basic foundations of back discomfort, has generated an ever-
expanding selection of treatment options, including medications, and manipulative care.18
Occasionally, the pain will not abate, and it may cause neurological issues or instability
requiring surgical intervention. There has been a recent increase in the number of
techniques available and a marked increase in the number of surgical procedures
performed.19 Percutaneous approaches such as epidural steroid injections, facet joint
blocks, spinal cord stimulation, intradiscal methods, and interventions meant to excise
discs or other materials in the spinal canal or to fuse the vertebrae have been employed.
Spinal surgeries vary from traditional methods involving discectomies and spinal
canal decompression to diverse ways of tackling segmental fusions using different
approaches, materials, instruments, and indications.20 Back surgery alters a person’s anatomy
so surgical intervention should only be pursued as a last resort. If a lesion or spinal abnormality
has not been identified, surgical intervention is improper, nor should back surgery be done to
explore possible reasons for the pain. These interventions will transform the routine soft tissue
injury claim into one fraught with possible complications and legal repercussions. The value of
the case will also dramatically increase depending upon the type of surgery performed and the
patient’s prognosis.21
II. Anatomy of the Spine
This anatomic region is one of the most important parts of the body. Without it,
one would be unable to stand; it also provides the body with flexibility, structure, and
support. The backbone also protects the spinal cord which passes through the center of
the vertebrae.22
The spine runs from the bottom of the skull to the pelvis and is made up of moveable
bones called vertebrae. These bones are stacked on top of each other and separated above and
below by cushion-like pads dubbed discs.23 Altogether these weight-bearing bones consist of
16 See HODGE & HUBBARD, supra note 8, at 409.
17 See HODGE & HUBBARD, supra note 8, at 409.
18 See Janna Friedly et al., Epidemiology of Spine Care: The Back Pain Dilemma, 21 PHYSICAL MED.
AND REHAB. CLINICS OF N. AM. 659, 659–77 (2010).
19 Id.
20 Id. Fusions are done because of intractable pain instability, herniated discs, and spinal
deformities.
21 Id.
22 See A Patient's Guide to Anatomy and Function of the Spine, THE U. OF MD. MED. CTR.,
https://www.umms.org/ummc/health-services/orthopedics/services/spine/patient-
guides/anatomy-
function#:~:text=The%20spine%20is%20one%20of,to%20protect%20your%20spinal%20cord
(last visited on November 12, 2020).
23 See HODGE & HUBBARD, supra note 8, at 409.172 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
thirty-four vertebrae but only twenty-four are independent and not fused.24 The vertebrae are
also not identical in size and generally become bigger in a downward order because of their
weight-bearing obligations.25
a. Regions of the Spine
The vertebral column consists of five major regions; cervical, thoracic, lumbar,
sacrum, and coccyx.26 The cervical spine or neck is made up of seven small bones which are
tightly stacked upon one another. They are numbered C1 to C7, support the head and allow
the neck to rotate as well as flex and extend. The most mobile portion of this segment occurs
between the C5-C6 and C6-C7 levels making them the most susceptible to injury.27 The top
two bones, however, are uniquely shaped. The C1 vertebra, known as the Atlas bone, holds up
the globe of the head. The second vertebra is the Axis and the embryologic body of the C1
bone. It plays a significant role in the rotation of the head28 and is susceptible to a whiplash-
type injury.29
The thoracic spine is the largest portion of the spine and the most complex. It runs
from the base of the neck to the abdomen. These 12 vertebrae attach to the ribs, form a fairly
rigid unit, and are labeled T1 through T12. Most levels have restricted forward, backward, and
side-bending movements.30 Anatomically, the first thoracic vertebra, or T1, is situated parallel
to the clavicle, and T12, the last thoracic vertebra ends at the last rib. Due to their anatomic
positioning, the thoracic vertebrae and rib cage protect many of the vital organs such as the
heart, lungs, and liver.31
The lumbar spine is considered the lower back and is made up of five moveable bones
which are bigger and thicker than the other vertebrae.32 The first lumbar vertebra, or L1,
is located just below the last rib and the L5 bone is situated around the waist. Some people
will occasionally have a sixth vertebra which is an anatomic variant.33 This portion of the
spine has much flexibility and is subject to the greatest number of back injuries because
of their weight-bearing load and mobility.34
24 See J.D. Mitchell, The Engineering Marvel of Our Spine, THE CREATION CLUB,
https://thecreationclub.com/the-engineering-marvel-of-our-spine/ (last visited Mar. 25, 2021).
25 See SAMUEL D. HODGE, JR., ANATOMY FOR LITIGATORS 96 (2006).
26See HODGE & HUBBARD, supra note 8, at 410.
27 See HODGE & HUBBARD, supra note 8, at 410, 412.
28 See Axis (C2), RADIOPAEDIA, https://radiopaedia.org/articles/axis-c2?lang=us (last visited
Mar. 13, 2021).
29 See HODGE, supra note 25, at 96.
30 See Mark Yezak, DC, Thoracic Spine Anatomy and Upper Back Pain, Spine Health, April 3, 2018,
https://www.spine-health.com/conditions/spine-anatomy/thoracic-spine-anatomy-and-upper-back-
pain#:~:text=The%20thoracic%20spine%20is%20the,attached%20to%20the%20rib%20cage.
31 See HODGE, supra note 25, at 96.
32 See Stuart Eidelson, Lumbar Spine, SPINE UNIVERSE,
https://www.spineuniverse.com/anatomy/lumbar-spine (last visited November 13, 2020).
33 Id.
34 See HODGE, supra note 25, at 97.2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 173
The sacrum consists of five fused bones that resemble an inverted triangle with
a concave shape.35 It forms the base of the spinal column where it interconnects with the hip to
create the pelvis.36 Developmentally, the individual bones of the sacrum start to fuse during late
puberty and early adulthood to create a single structure.37 This area forms the back of the pelvis
and joints at the bones of the hip, called the sacroiliac joints, which are main weight-
bearing areas. The sacrum has four holes on each side for the nerves and blood vessels to
exist. These structures support muscles that perform important roles, such as the pelvic
floor, bladder, and anal sphincter.38
The coccyx or tail bone is the final region or termination point of the spine and
is made up of four bones that have fused over millions of years.39 It is the skeletal remnant
of the caudal eminence that exists from weeks four to eight of gestation. This structure is
reabsorbed in the womb, but a small tailbone survives.40 This region supports the body
when a person is seated to make sure that the weight is evenly distributed. The coccyx is
also the attachment point of the pelvic muscles, which assist in a variety of movements
such as jogging and walking.41
b. Ligaments of the Spine
A ligament is a strong fibrous strip of collagenous fibers that hold the bones of the
spine together and stabilize the vertebrae and discs.42 There are three major ligaments in the
spine. The ligamentum flavum are fibrous bands that run the length of the spine in both
the front and back of the stacked vertebral bodies.43 The tissue in the front is the anterior
longitudinal ligament and resembles a piece of tape that has been placed on the front of
the vertebral bodies to hold them in place and prevent unnecessary movement. The long
fibers on the back aspect of the vertebrae make up the posterior longitudinal ligament.
This structure assists in keeping the intervertebral discs in an anatomic position and
provides stability to the spinal column.44
The ligamentum flavum or yellow ligaments are paired segmental structures that
constrict naturally and run between the laminae of adjacent vertebrae. They are located
35 See The Sacrum, TEACH ME ANATOMY, https://teachmeanatomy.info/pelvis/bones/sacrum/
(last visited November 13, 2020).
36 See Tim Taylor, Sacrum, INNER BODY RES.,
https://www.innerbody.com/image_skel05/skel14_spine.html (last visited November 13, 2020).
37 Id.
38 Eren, How the Spinal Column Supports the Body, FACTY HEALTH,
https://facty.com/anatomy/skeletal-system/how-the-spinal-column-supports-the-body/4/ (last
visited Mar. 25, 2021).
39 The Coccyx, TEACH ME ANATOMY, https://teachmeanatomy.info/pelvis/bones/coccyx/ (last
visited Feb. 22, 2021).
40 Id.
41 Eren, supra note 38.
42 Ligament, BRITANNICA, https://www.britannica.com/science/ligament (last visited Feb. 22,
2021).
43 Anatomy of the Spine, MAYFIELD BRAIN AND SPINE, https://mayfieldclinic.com/pe-
anatspine.htm (last visited Feb. 22, 2021).
44 HODGE & HUBBARD, supra note 8, at 415.174 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
throughout the spine starting with C1-C2 and ending at L5-S1.45 Each is 5 millimeters
thick from the front to the back. Structurally, they are the thinnest in the cervical vertebra
and largest in the lumbar area.46 Their purpose is to maintain the body’s upright position,
to assist in maintaining the normal curvature of the back, and to straighten the spine after
it has been flexed.47
Additional tissues that offer stability in the spine are the interspinous ligaments
which interconnect the back portion of the vertebra, primarily in the thoracic and lumbar
areas, and the intertransverse ligaments which attach adjoining vertebral transverse
processes.48 Their purpose is to restrict lateral flexion of the spine.49
c. Curves of the Spine
The spine is anatomically balanced for peak flexibility and support of the body’s
mass.50 One would assume that the vertical spine is straight, but this presumption is only
correct when the structure is viewed from the front. Looking at the spine from the side,
however, reveals several curves that loosely form an “S” shape.51 These gentle bends
permit the spine to function as a spring or shock absorber for the micro-traumas of daily
life and they develop as people age since they are not present at birth when the spine has
a gentle “C” curve.52 These curves also act in unison to maintain the body’s center of
gravity centered over the hips and pelvis.53
The cervical and lumbar regions both have a lordotic curve which represents a
mild bending of the spine in an inward direction. When the curve in the cervical spine
becomes exaggerated, the person is said to have a swayback.54 A kyphosis or outward
bending curve is observed in the thoracic and sacral areas. These curves help dispense
stress while the body is at rest and during movement.55 Scoliosis is an abnormal curvature
to the lateral side of the spine that happens most frequently during the growth spurt
before puberty.56 This condition can cause a mild cosmetic deformity to life-threatening
45 See generally GREGORY D. CRAMER, CLINICAL ANATOMY OF THE SPINE, SPINAL CORD, AND
ANS 135-209 (3d ed. 2014).
46 Id.
47 MARC FISICARO ET. AL., Basic Anatomy of the Cervical, Thoracic, Lumbar, and Sacral Spine, CORE
KNOWLEDGE IN ORTHOPAEDICS: SPINE (2005).
48 HODGE & HUBBARD, supra note 8, at 417.
49 Veridiana Tschepe, What is the Role of the Intertransverse Ligaments?, FIND ANY ANSWER,
https://findanyanswer.com/what-is-the-role-of-the-intertransverse-ligaments (last visited Feb.
22, 2021).
50 Spinal Deformities, THE SPINE HOSPITAL, https://www.columbiaspine.org/condition/spinal-
deformities/ (last visited Feb. 22, 2021).
51 Stewart Eidelson, Normal Curves of Your Spine, SPINE UNIVERSE,
https://www.spineuniverse.com/anatomy/normal-curves-your-spine (last visited Feb. 22, 2021).
52 HODGE & HUBBARD, supra note 8, at 417.
53 Spinal Deformities, supra note 50.
54 HODGE & HUBBARD, supra note 8, at 99.
55 Eidelson, supra note 51.
56 Scoliosis, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/scoliosis/symptoms-
causes/syc-20350716 (last visited Feb. 22, 2021).2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 175
breathing disruptions.57 If the problem accelerates, the spine will rotate or twist to its
sideways curve. This forces the ribs on one side to project further out than the ones on
the opposite side. Scoliosis can be triggered by problems such as cerebral palsy and
muscular dystrophy, but in most instances the cause is unknown.58
d. The Vertebrae
The spinal column consists of vertebrae that vary in size and shape based upon
their location and function but follow a comparable structural pattern. A typical vertebra
will consist of a body, a vertebral arch, and several processes.59 The vertebrae in the neck
are the smallest when compared to those in the low back which are the biggest because
of their weight-bearing responsibilities.
A vertebra has two main components. The solid and largest portion of the
structure situated in front of the middle hole is the vertebral body and the posterior aspect
of the bone is the arch. The projection that protrudes backward from the vertebrae for a
few inches and can be felt directly below the surface of the skin is the spinous process. 60
This anatomic part provides the attachment point for the soft tissues of the back.61 The
vertebra then bends similarly to a wishbone to surround and protect the spinal cord.62
This flattened or arched portion is the laminae which means “plate,” and forms the
posterior wall of the bone that covers the spinal cord and nerves.63
The spinal cord travels down the middle of the vertebrae and the nerve roots exit
from the sides of the bone for their journey across the body. This is accomplished by
natural holes or openings in the bone; the foramina.64 The spinal column also has a series
of joints known as facets that allow for movement between the two vertebrae.65 These
joints, which are also known as zygapophyseal or apophyseal joints, connect the
vertebrae, giving them the needed flexibility to glide against each other. These small,
cartilage-lined points of contact66 look like bony knobs that overlap with the vertebrae
57 See Jason Highsmith & Pam Moore, Scoliosis Causes, Symptoms, Diagnosis and Treatment, SPINE
UNIVERSE, https://www.spineuniverse.com/conditions/scoliosis (last visited November 13, 2020).
58See Scoliosis, supra note 56.
59 See The Vertebral Column, LUMEN LEARNING, https://courses.lumenlearning.com/suny-
ap1/chapter/the-vertebral-column/ (last visited November 13, 2020).
60 See HODGE & HUBBARD, supra note 8, at 411.
61 See Spinous Process Definition, SPINE-HEALTH, https://www.spine-health.com/glossary/spinous-
process (last visited November 12, 2020).
62 See Lamina Definition, SPINE-HEALTH https://www.spine-health.com/glossary/lamina (last visited
November 12, 2020).
63 See id.
64 See HODGE & HUBBARD, supra note 8, at 491.
65 See Joseph Bernstein, Anatomy, in MUSCULOSKELETAL MEDICINE 253 (Joseph Bernstein ed.,
2003).
66 See 6 Clues That Your Back Pain Is From Facet Joint Problems, SPERLING MED. GROUP,
http://sperlingmedicalgroup.com/6-clues-that-your-back-pain-is-from-facet-joint-
problems/#:~:text=The%20facet%20joints%20are%20small,limit%20its%20range%20of%20m
otion (last visited November 12, 2020).176 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
above and below a joint to provide the spine with maneuverability.67 The facets wear out
over time and degenerative diseases such as osteoarthritis can eventually be found, especially
if there has been a traumatic event.68 Facet joint pain takes places when the joints fail to
move smoothly. The resultant changes in the spine can alter the distribution of the body’s
weight unevenly over the facet joints resulting in the loss of mobility and irritation. This
condition can also irritate the medial branch of the sensory nerve casing the adjacent
muscles to spasm and stiffen.69
e. Muscles of the Back
Soft tissues surrounding the backbone play an important part in the fitness of the
structure. These large muscles work in tandem to support the trunk and keep the body
erect. They also permit the trunk to move, twist and bend.70 These soft tissues are called
the extrinsic and intrinsic muscles. The extrinsic muscles attach the spinal column to the
extremities and assist in the movement of the shoulder and upper limbs.71 They include the
trapezius, latissimus dorsi, rhomboid major and minor, levator scapulae, and the serratus
posterior, superior, and inferior muscles.72
The intrinsic muscles are the deep muscles of the back and help the spine move in
different directions. Since there is little movement at each vertebral level, spinal motion is
achieved by gliding movements over the bony segments.73 These muscles interface with the
vertebral column and consist of the erector spinae, the transverse-spinalis, and the deepest
muscles whose names are interspinous and intertransverse.74
f. The Discs
The intervertebral discs are fibrocartilaginous cushions acting as the back's shock
absorbers, thereby protecting the vertebrae, nerves, and other structures.75 They account
for twenty-five percent of the height of the spinal column76 and consists of twenty-three
67 See Apophyseal Joint Definition, SPINE-HEALTH, https://www.spine-
health.com/glossary/apophyseal-joint (last visited April 14, 2021).
68 See Facet Joint Anatomy Video, ARTHRITIS – HEALTH, https://www.arthritis-
health.com/video/facet-joint-anatomy-video (last visited November 13, 2020).
69 See Overcoming Pain from Facet Joint Syndrome, SPINE ONE, www.spineone.com. (last visited
November 22, 2020).
70 See Back Muscles, CEDAR SINAI, https://www.cedars-sinai.org/health-library/diseases-and-
conditions/b/back-muscles.html (last visited November 13, 2020).
71 See Extrinsic Muscles of the Back, CIZ ANATOMY ZONE,
http://anatomyzone.com/tutorials/musculoskeletal/extrinsic-muscles-of-the-
back/#:~:text=The%20extrinsic%20muscles%20of%20the%20back%20are%20those%20muscl
es%20which,of%20the%20spine%20and%20head (last visited November 13, 2020).
72 See Brittney Mitchell et al., Anatomy, Back, Extrinsic Muscles, STATPEARLS,
https://www.ncbi.nlm.nih.gov/books/NBK537216/#:~:text=The%20extrinsic%20muscles%2
0include%20the,of%20the%20scapula%20and%20humerus (last visited Nov. 13, 2020).
73 See HODGE & HUBBARD, supra note 8, at 450-51.
74 See id.
75 See Keith Bridgewell, Intervertebral Discs, SPINE UNIVERSE,
https://www.spineuniverse.com/anatomy/intervertebral-discs (last visited Nov. 13, 2020).
76 Id.2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 177
cushions that separate the vertebrae in the cervical, thoracic, and lumbar areas.77 Discs are
typically labeled based upon the vertebrae above and below them. Accordingly, the L4-
L5 disc is located between the fourth and fifth lumbar vertebrae.78
Discs differ in depth and permit the back to move, bend, and twist. Each has a
soft gel-like center, the nucleus pulposus, and a tough outer edge, or annulus fibrosis,
made up of ten to twenty concentric rings of collagen fibers.79 The annulus fibrosis
resembles a steel-belted radial tire and is orientated at various angles. In turn, the annulus
surrounds and protects the soft inner core.80 The annulus is thicker in its front aspect,
which may explain why a disc will most often herniate posteriorly.81
Since the nucleus pulposus provides the main support for the central part of the
body, it depends upon its liquid content to provide strength and flexibility.82 As people
age, however, the spine starts to display evidence of wear and tear as the discs dry out and
shrink making them less pliable. This degenerative process can cause arthritis, disc
herniation, spinal stenosis, and pain.83
The discs lack a blood supply so they must absorb their nutrients from the
surrounding tissue through movement. This reduced blood flow makes discs susceptible
to harm and slow to improve from an insult which can result from acute trauma or chronic
degeneration.84 A disc herniation occurs when the gelatinous center escapes through a rip
or defect in the annulus, just as that which might occur when a grape is squeezed so that
the inner pulp escapes through the skin of the grape.85 Discs generally herniate backward
in the middle and are known as a central or midline disc or to the left or right sides dubbed
a lateral disc which may compress the exiting nerve root.86 When this occurs, surgical
77 See HODGE & HUBBARD, supra note 8, at 100.
78 See Jack Hubbard & Samuel D. Hodge, Jr., “Show Me The Pain”: Limitations and Pitfalls of Medical
Imaging of the Low Back, 14 MICH. ST. U. J. MED. & L. 129, 138 (2010).
79 See HODGE & HUBBARD, supra note 8, at 100.
80 See Bridgewell, supra note 75.
81 See Bernstein, supra note 65.
82 See HODGE & HUBBARD, supra note 8, at 100.
83 See Degenerative Disc Disease, MAYFIELD BRAIN AND SPINE, https://mayfieldclinic.com/pe-
ddd.htm#:~:text=Degenerative%20disc%20disease%20(DDD)%20affects,and%20nerves%20m
ay%20cause%20pain (last visited Nov. 13, 2020).
84 See Understanding Anatomy: Intervertebral Discs, AINSWORTH INSTITUTE OF PAIN MANAGEMENT,
https://ainsworthinstitute.com/patient-information/anatomy/intervertebral-discs/ (last visited
Nov. 13, 2020).
85 See Why Does a Herniated Disk Happen & Will It Go Away?, CLEVELAND CLINIC,
https://health.clevelandclinic.org/why-does-a-herniated-disk-happen-will-it-go-away/ (last
visited Feb. 27, 2021).
86 See Royal Indemnity Co. v. Jones, 201 S.W.2d 129, 132 (Tex. Civ. App. 1947). The plaintiff’s
expert noted:
When you part the membrane that keeps the disc material between the vertebrae, the
material of the discs shoots through the break [.] [W]hen an intervertebral disc
collapses, it can only collapse in one direction, the material has to go somewhere, it
can't go laterally, because the ligaments on each side are too strong[.] [I]t doesn't break
forward for the same reason, those ligaments are intensely tough, so it can only bulge
backwards into the area where the spinal cord goes down.178 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
intervention may be required to excise the extruded nucleus pulposus thereby freeing up
the nerve root. In addition to the resultant discomfort by direct compression on the
adjacent nerve roots, a herniated disc can also generate pain by secreting inflammatory
proteins located inside the nucleus pulposus which inflame nearby tissues.87 However,
“the term herniated disc does not imply any knowledge of etiology, relation to symptoms,
prognosis or need for treatment.”88
Most herniated discs are caused by the natural aging process known as
degeneration. However, a traumatic event can also cause a disc to rupture. In a majority
of cases, a herniated disc has an excellent prognosis and will improve over several days or
weeks. Overall, the disc fragment will be reabsorbed and people will become
asymptomatic in three to four months. Treatment usually focuses on pain relief and only
a small percentage of those with herniated discs proceed to surgery.89
g. Spinal Cord and Nerves
The spinal cord is part of the central nervous system which consists of
the brain and spinal cord. The cord is a long, fragile tube-like structure90 that starts at the
base of the brain, in an area known as the medulla oblongata, and ends around L1, as it
narrows to form a cone labeled the conus medullaris.91 The spinal cord contains multiple
nerves that transmit incoming and outgoing signals between the brain and the
remainder of the body. These bilateral pairs of nerves for each cervical, thoracic, lumbar,
and sacral vertebrae make up the peripheral nervous system.92
The spinal cord is protected by the meninges which consist of the dura,
arachnoid, and pia. The spinal cord and meninges are contained within the spinal
canal.93 Nerves branch off the spinal cord and exit through the holes on the lateral sides
of the vertebrae. They are known as the spinal nerves and are divided into five main parts:
cervical, thoracic, lumbar, sacral, and coccygeal.94 These nerves are critical for the control
Id.
87 See Hubbard & Hodge, Jr., supra note 78, at 138.
88 See id.
89 See Herniated Disc in the Lower Back, ORTHOINFO, https://orthoinfo.aaos.org/en/diseases--
conditions/herniated-disk-in-the-
lowerback/#:~:text=A%20herniated%20disk%20is%20a,leg%20pain%20or%20%E2%80%9Cs
ciatica.%E2%80%9D (last visited Feb. 27, 2021).
90 See Steven Goldman, Spinal Cord, MERCK MANUALS,
https://www.merckmanuals.com/home/brain,-spinal-cord,-and-nerve-disorders/biology-of-the-
nervous-system/spinal-
cord#:~:text=The%20spinal%20cord%20is%20a,the%20rest%20of%20the%20body (last
modified Apr. 2018).
91 See Anatomy of the Spine and Peripheral Nervous System, AM. ASS’N OF NEUROLOGICAL SURGEONS,
https://www.aans.org/en/Patients/Neurosurgical-Conditions-and-Treatments/Anatomy-of-the-
Spine-and-Peripheral-Nervous-System (last visited Feb. 27, 2021).
92 See Eren, supra note 38.
93 See Goldman, supra note 90.
94 See How Does the Spinal Cord Work, U. OF IOWA HOSP. AND CLINICS,
https://uihc.org/health-topics/how-does-spinal-cord-work (last visited Feb. 27, 2021).2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 179
of the different parts of the body. If a spinal nerve is injured, compressed, or subject to a
disease process, the parts of the body innervated by that nerve can be compromised.95
There are 31 sets of nerves that transverse the body in predetermined pathways
after they exit the foramen on both sides of the vertebra. There are 8 pairs in the cervical
spine, 12 sets that exit from the thoracic segments, five pairs of lumbar nerves, five sacral
nerves, and one coccygeal nerve.96 These nerve roots then become a component of the
peripheral nervous systems and dispatch motor and sensory signals throughout the body.97
Each spinal nerve is made up of two roots, an anterior or ventral root and a
posterior or dorsal root. The anterior root contains the motor fibers that transmit
information away from the spinal cord.98 The posterior root consists of sensory or afferent
fibers and carries information from the environment back to the brain. Both of these
spinal nerves split off from the spinal cord before they exit the vertebrae and merge back
together to form a single spinal nerve that transverses the body in a predetermined
pathway.99
The spinal cord has a sausage-like covering named the thecal sac. This waterproof
casing works as a buffer so that the spinal cord does not contact the vertebrae. The sac
also houses the spinal fluid which bathes the cord with nourishment.100
Spinal stenosis is a term often employed by radiologists when reviewing imaging
of the spine. It means “narrowing,” so this phrase can signify a disc herniation or bony
overgrowth that may decrease the size of the spinal canal so that the opening must be
enlarged to reduce pressure on the nerves.101 The condition is most frequently related to
wear-and-tear alterations of the spine caused by osteoarthritis. In others, the narrowing
may be congenital in that they are born with a narrowed spinal canal. The majority of
those with spinal stenosis are over the age of 50 although the condition can occur in
younger individuals as the result of trauma, a congenital abnormality, or a genetic
disease.102
h. Limitation of Diagnostic Imaging
The number of patients who visit physicians for back pain in recent years has
dramatically increased. There have also been great strides in diagnostic imaging to
diagnosis these problems from the traditional X-ray to the sophisticated MRI which relies
95 Spinal Nerves, BRAIN MADE SIMPLE (Feb. 14, 2020), https://brainmadesimple.com/spinal-
nerves/#:~:text=Spinal%20nerves%20are%20bundles%20of,the%20head%20and%20neck%20r
egion (last visited Mar. 30, 2021).
96 Id.
97 Id.
98 Id.
99 Id.
100 Samuel D. Hodge, Jr., Chapter 7, The Back Injury Claim, supra note 8 at 100.
101 Jack Hubbard & Samuel D. Hodge, Jr., “Show Me The Pain”: Limitations and Pitfalls of Medical
Imaging of the Low Back, 14 MICH. ST. U. J. MED. & L. 129, 139 (2010).
102 Spinal Stenosis, Mayo Clinic, www.mayoclinic.org (last visited November 22, 2020).180 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
on magnetics and radio waves to generate images so sophisticated that they resemble an
artist’s rendition of the anatomy.103
The task of a physician and counsel would be simple if one could point to an
abnormality on an x-ray, CT scan or MRI and confidentially report that the abnormality
is causing the pain. The problem is that imaging abnormalities are often discovered in the
spine without attendant back pain.104 No imaging modality is exempt from this problem.
Simply stated, many positive findings on diagnostic imaging are related to the
asymptomatic aging processes.105
Multiple studies confirm this problem. For instance, research related to x-rays of
the low back of over one thousand healthy young adults without low back pain revealed
meaningful abnormalities in fifty-eight percent of those imaged.106 Likewise, an
investigation of military parachute instructors whose spines were subject to huge vertical
forces revealed “[n]o correlation [between] the severity of radiographic changes and either
the prevalence [or] the severity of low back pain.”107 CT scans are plagued by similar
findings. For example, twenty-four percent of a test population who were asymptomatic
were discovered to have many abnormalities of the lumbar spine on CT imaging.108
A study involving MRI scans, the gold standard for diagnostic imaging of the
spine, of a group of people without low back pain was reported in the New England Journal
of Medicine. The authors found that “52% of the subjects had a [lumbar disc] bulge at least
one level, 27% had a [disc] protrusion, and 1% had a [disc] extrusion.”109 A second study
of asymptomatic individuals discovered a seventy-six percent occurrence of disc
herniations110 while other research involving those without a history of back or leg pain
demonstrated that 33.3% of the volunteers had substantial abnormalities.111 In a paper
discussing females between sixteen and eighty years of age without low back pain, over a
third of them between twenty-one and forty years of age had degenerative disc disease
shown in MRI scans.112 By age seventy, eighty percent of those imaged had major disc
103 Mohamed Nouh, Imaging of The Spine: Where Do We Stand?, 11 WORLD J. RADIOLOGY 55–61
(2019).
104 Hubbard & Hodge, supra note 78, at 139.
105 Id.
106 Id.
107 See John Korber & Bernard Bloch, The “Normal” Lumbar Spine, 140 MED. J. AUSTL. 70, 70
(1984).
108 Sam W. Wiesel et al., A Study of Computer-Assisted Tomography: The Incidence of Positive CAT Scans
in an Asymptomatic Group of Patients, 9 SPINE 549 (1984).
109 Maureen C. Jensen et al., Magnetic Resonance Imaging of the Lumbar Spine in People Without Back
Pain, 331 NEW ENG. J. MED. 69, 69 (1994); see, e.g., Stevens v. Homiak Transp., Inc., 21 A.D.3d
300, 302 (N.Y. App. Div. 2005); Pierce v. La. Maint. Serv., Inc., No. 95-747 (La. App. 5 Cir.
01/30/96); 668 So.2d 1232, 1237.
110 Norbert Boos et al., The Diagnostic Accuracy of Magnetic Resonance Imaging, Work Perception, and
Psychosocial Factors in Identifying Symptomatic Disc Herniations, 20 SPINE 2613, 2613 (1995).
111 Scott D. Boden et al., Abnormal Magnetic-Resonance Scans of the Lumbar Spine in Asymptomatic
Subjects, 72-A J. BONE JOINT SURGERY AM. 403 (1990).
112 M. C. Powell et al., Prevalence of Lumbar Disc Degeneration Observed by Magnetic Resonance in
Symptomless Women, 2 LANCET 1366, 1366 (1986).2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 181
abnormalities.113 In yet a different study involving age-related asymptomatic patients,
thirty-one percent of those viewed were said to have a disc or spinal canal
irregularities.114 Repeat imaging seven years later found no connection between the
duration or severity of subsequent low back pain and the degree of pathology seen on the
original images.115
Thus, the medical research shows that no matter which imaging method is
employed, significant pathology is present in the spines of those without a current or past
history of back pain.116 Consequently, the important question that must be answered is
“[w]hat separates individuals with dramatic morphologic findings who have no symptoms
from individuals with identical alterations who do?”117 Counsel must, therefore, recognize
that an abnormality discovered on diagnostic imaging should not be considered diagnostic
“unless it conforms to the clinical syndrome.”118 In other words, an abnormality
discovered on imaging must correspond to the clinical picture and findings to be medically
relevant. This demonstrates why counsel must conduct a diligent search for past incidents
of trauma or complaints and earlier diagnostic studies involving the spine.
III. Spinal Surgery
Spinal surgery is not performed merely because a person has back discomfort,
nor is the presence of a herniated disc a prerequisite for surgical intervention. Research
demonstrates that patients with herniated discs and radiculopathy have a seventy-eight
percent rate of disc reduction with conservative care.119 Instead, surgery is focused on
those with intractable pain, spinal instability, or neurological compromise such as leg
weakness or loss of bladder or bowel control.120 The critical consideration for operative
intervention is whether the pain compromises the patient’s enjoyment of life and whether
113 Id.
114 See David G. Borenstein et al., The Value of Magnetic Resonance Imaging of the Lumbar Spine to
Predict Low-Back Pain in Asymptomatic Subjects: A Seven-Year Follow-up Study, 83 J. BONE & JOINT
SURGERY 1306, 1306 (2001).
115 See id. at 1310.
116 See Hubbard & Hodge, supra note 78, at 151; see also Korber & Bloch, supra note 107, at 70-72
(finding significant abnormalities in 58% of 1,172 x-rays from young adults without low back
pain).
The work of physicians and lawyers would be rather easy if one could point to an
abnormality on an x-ray or scan and unequivocally state that the pathology is the cause
of the pain. The problem is that radiographic abnormalities frequently occur in the
spine without concomitant back pain. No imaging procedure is immune to this
conundrum.
Hubbard & Hodge, supra note 78, at 150.
117 Michael T. Modic & Jeffrey S. Ross, Lumbar Degenerative Disk Disease, 245 RADIOLOGY 43, 57
(2007).
118 John W. Frymoyer, Back Pain and Sciatica, 318 NEW ENG. J. OF MED. 291, 294 (1988); see
Hubbard & Hodge, supra note 78, at 152 (arguing medically relevant imaging abnormalities
should correspond to the clinical findings).
119 See HODGE & HUBBARD, supra note 8, at 435 (1st ed. 2014).
120 See id.182 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
the problem, if left unchecked, will deteriorate into a much more serious problem,
including a progressive neurological impairment.121
Approximately one-half million Americans have low back surgery each year, and
they spend more than $11 billion annually on operations to alleviate back discomfort. 122
Statistically, the average back surgery patient is between forty and forty-five years; men
have twice the number of procedures than women, and more than ninety-five percent of
low back interventions involve the L4 and L5 vertebrae.123 The kind of surgery is based
upon the reason for the intervention and includes a laminectomy, discectomy, spinal
fusion, corpectomy, and foraminotomy. Each operation is different and can be
performed in a variety of ways.124
a. Anatomic Abnormalities
If an intervertebral disc is damaged to the extent that it intrudes into the spinal
canal in the cervical or thoracic areas, it may impinge on the spinal cord and cause damage
or dysfunction to the structure, in addition to potentially impinging on the associated
nerve roots at the level of herniation.125 Myelopathy is the term coined to refer to spinal
cord damage, and related clinical dysfunction. This condition is evidenced by abnormal
findings upon examination, which demonstrate long tract signs.126 These findings can
include pain in the spine and extremities, paresthesia, decreased motor skills, balance and
coordination, abnormal reflexes, difficulty walking, and loss of bowel or bladder
control.127 Additional findings of myelopathy include gait dysfunction that results in
121 See id.
122 See Chris Woolston, Back Surgery, HEALTHDAY (Dec. 31, 2019),
https://consumer.healthday.com/encyclopedia/back-care-6/backache-news-53/back-surgery-
645795.html; see also Victoria M. Taylor et al., Low Back Pain Hospitalization: Recent United States
Trends and Regional Variations, 19 SPINE J. 1207, 1207-13 (1994) (noting low back operation rates
in the United States increased substantially); Atul T. Patel & Abna A. Ogle, Diagnosis and
Management of Acute Low Back Pain, AM. FAM. PHYSICIAN (Mar. 15, 2000),
https://www.aafp.org/afp/2000/0315/p1779.html (“Of all industrialized nations, the United
States has the highest rate of spinal surgery”).
123 See William C. Shiel, Lumbar Laminectomy, EMEDICINEHEALTH (Aug. 21, 2020),
https://www.emedicinehealth.com/lumbar_laminectomy/article_em.html.
124 HODGE & HUBBARD, supra note 8, at 435.
125 See Herniated Disc (Cervical, Thoracic, Lumbar), THE SPINE HOSPITAL,
https://www.columbiaspine.org/condition/herniated-
disc/#:~:text=A%20large%20disc%20herniation%20in,level%20of%20the%20disc%20herniatio
n (last visited Feb. 24, 2021); Back pain – Disc Problems, BETTER HEALTH CHANNEL,
https://www.betterhealth.vic.gov.au/health/conditionsandtreatments/back-pain-disc-problems
(discussing symptoms and risk factors of disc problems).
126 See Myelopathy, PENN MEDICINE, https://www.pennmedicine.org/for-patients-and-
visitors/patient-information/conditions-treated-a-to-
z/myelopathy#:~:text=Myelopathy%20is%20an%20injury%20to,autoimmune%20disorders%20
or%20other%20trauma (last visited Feb. 24, 2021) (defining myelopathy).
127 See id.; Myelopathy, JOHNS HOPKINS MEDICINE,
https://www.hopkinsmedicine.org/health/conditions-and-diseases/myelopathy (last visited Feb.
25, 2021); see also ANTHONY WOODWARD, ATTORNEYS TEXTBOOK OF MEDICINE § 11.08 (3d
ed. 2021) (mentioning the initial symptoms and progression of myelopathy under the spinal
stenosis umbrella).2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 183
significant imbalance and the presence of Lhermitte’s phenomena, which is diagnosed by
having the patient flex their chin to the chest.128
If a disc herniates or otherwise impinges on the nerve roots, it can cause
radiculopathy, a focal dysfunction of a nerve root distinct from myelopathy, although they
can occur together.129 Dysfunction of a specific nerve root can result in focal complaints
of pain radiating along the nerve root distribution in the extremity. It can also be
associated with subjective complaints of loss of sensation and loss of motor function if
the radiculopathy is significant enough to cause damage to the motor components of the
nerve root.130 Findings on examination include focal loss of sensation, deep tendon reflex
loss, and potentially motor loss. However, radiculopathy often presents with only partial,
subjective findings and a variety of objective findings; having abnormal results in all of
the above-noted nerve function areas is not a requirement to diagnose radiculopathy.131
Anatomic abnormalities in the spine or other structures in the area can involve
disease processes or traumatic injury resulting in concern for the surgeon. This includes
the arthritic deterioration of both discs and the posterior-positioned facet joints.132 The
facet joints are different from the shock-absorbing type intervertebral discs and are more
properly referred to as apophyseal joints.133 These structures are described as small,
cartilage-lined points of contact where each individual vertebra contacts the one above
and below it.134 More mild forms of injury to those joints can result in purely axial (non-
radiating) spinal pain in the injured facet joint area. More significant deterioration of the
facet joint can occur with degeneration and deterioration of the joint, causing cartilaginous
overgrowth, hypertrophy of the joint, painful dysfunction, and even impingement on
adjacent structures such as nerve roots or the spinal cord. Traumatic injury to the facet
joints can result in instability, requiring surgical correction and stabilization.135
128See Supreet Khare & Deeksha Seth, Lhermitte's Sign: The Current Status, ANNALS OF INDIAN
ACAD. OF NEUROLOGY,154, 154–156 (2015) (reviewing the etiopathophysiology of Lhermitte's
sign); MYELOPATHY.ORG, Lhermitte's Sign - Definition, https://myelopathy.org/lhermittes-sign-
definition/#:~:text=Lhermitte's%20sign%2C%20the%20phenomenon%20of,your%20chin%20t
o%20your%20chest). (last visited Feb. 25, 2021).
129 See JOHN HOPKINS MEDICINE, Radiculopathy,
https://www.hopkinsmedicine.org/health/conditions-and-
diseases/radiculopathy#:~:text=Radiculopathy%20describes%20a%20range%20of,%2C%20wea
kness%2C%20numbness%20and%20tingling (last visited Feb. 25, 2021); see also MARY JEANNE
KROB & LAURA BRASSEUR, ATTORNEYS TEXTBOOK OF MEDICINE § 15.04 (3d ed. 2021)
(discussing lumbar disc protrusions in the lawyer’s context).
130 See Telephone Interview with James G. Lowe, Neurosurgeon, Chief of the Div. of Spinal
Surgery at AtlantiCare Reg’l (January 2021).
131 See id.
132 See Telephone Interview with James G. Lowe, supra note 130.
133 Apophyseal Joint Definition, supra note 67.
134 6 Clues That Your Back Pain is From Joint Problems, SPERLING MEDICAL GROUP,
http://sperlingmedicalgroup.com/6-clues-that-your-back-pain-is-from-facet-joint-
problems/#:~:text=The%20facet%20joints%20are%20small,wears%20thin%2C%20pain%20ca
n%20occur (last visited Jan 28, 2021).
135 See Telephone Interview with James G. Lowe, supra note 130.184 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
Additional structures of pathologic concern in the spine include the interlaminar
ligaments, otherwise referred to as the ligamentum flavum, that run through the spinal
canal’s posterior aspect.136 Hypertrophy of these ligaments can occur with chronic
degenerative processes and can cause stenosis, a narrowing of the spinal canal’s caliber or
area where the nerve roots exit laterally, the foramina.137 Stenosis related to ligamentum
flavum hypertrophy is often associated with bulging discs and facet hypertrophy as part
of an overall degenerative process.138 When stenosis from these processes – in an isolated
fashion or combined from all structures – is significant enough to cause neural
compression, impingement can result in radiculopathy or myelopathy, depending upon
the involved neural structures.139
b. Considerations for Surgery
Surgical indications in patients with spinal problems depend significantly upon
the extent of damage to any or all of the spinal structures, the acuity of such damage, and
the insult or disruption’s neurologic results.140 Common indications for surgery include:
1. A herniated disc causing severe, intractable discomfort and/or
neurological compromise;
2. Fractures of the spine or dislocations;
3. Symptomatic spondylolisthesis; or
4. Neurological deficits resulting from nerve root compression or
instability.141
A traumatic spinal cord injury stems from an insult causing harm to the spinal
cord that may produce short-term or permanent neurological impairment such as
paralysis.142 In the case of an acute traumatic spinal fracture with or without injury to the
spinal cord, the indication for surgery is a complex concern that involves assessment of
whether the spine is stable – able to move and function properly in support of the
associated spinal cord and nerves – and whether there is a spinal cord injury or spinal cord
compression.143 This variability occurs because spinal fractures are not created equal and
can vary from uncomfortable compression fractures, frequently detected after subtle
trauma in those with osteoporosis, to more significant injuries such as burst fractures and
fracture-dislocations that happen after motor vehicle collisions or falls from height.144
Those severe injuries often produce an unstable spine, with a high risk of spinal cord
136 HODGE & HUBBARD, supra note 8 at 440, 484.
137 Jianwei Chen et al., Hypertrophy of Ligamentum Flavum in Lumbar Spine Stenosis Is Associated with
Increased miR-155 Level, HINDAWI (May 18, 2014),
https://www.hindawi.com/journals/dm/2014/786543/.
138 Id.
139 See Teruaki Okuda et al., Morphological Changes of the Ligamentum Flavum As A Cause Of Nerve
Root Compression, 3 EUR. SPINE J. 277, 277–86 (2005).
140 See Telephone Interview with James G. Lowe, supra note 130.
141 Id.
142Traumatic Spinal Cord Injury, TEACH ME SURGERY (Oct. 1, 2020),
https://teachmesurgery.com/neurosurgery/traumatic-injuries/traumatic-spinal-cord-injury/.
143 See Telephone Interview with James G. Lowe, supra note 130.
144 Spinal Fractures, CLEVELAND CLINIC, https://my.clevelandclinic.org/health/diseases/17498-
spinal-fractures (last visited Jan. 29, 2021).2021 JOURNAL OF HEALTH & BIOMEDICAL LAW 185
trauma and pain. These factors, and the patient’s overall medical condition, will be
assessed to determine the need for spinal intervention.145
In the more routine situation of patients who present with pain or subjective
complaints of sensory or motor dysfunction in the extremities, the practitioner’s challenge
is to determine the structure generating the pain and/or the neurologic dysfunction.146 In
the cervical or thoracic region, the physician must consider whether spinal cord
dysfunction is involved.147 In the lumbar region, typically, the issue of spinal cord
dysfunction is not a concern, although impingement of one or more of the structures of
the nerve roots of the cauda equina can be worrisome.148 Additionally, impingement of
nerve roots at the neural foraminal level can occur at any region in the spine and classically
result in significant symptomatology referred to the corresponding extremity, including
pain, numbness, and weakness.149
In non-acute spinal diagnoses such as disc degeneration, stenosis, or traumatic
disc disruption, surgery indications usually depend on the course and results of prior
attempted non-surgical treatment. Most patients with radiculopathy from nerve root
compression, whether from stenosis, disc degeneration, or disc herniation, do not require
emergent surgical intervention.150 Pain relief is usually first tried through medication, pain
injections, and physical therapy.151 However, surgery may be indicated in a patient who
has continued difficulty with activities of daily living, or develops an acute weakness of an
extremity, such as a foot drop from a lumbar disc herniation.152 When patients exhibit
signs and symptoms of damage to the nerves in the cauda equina, such as the loss of
bladder or bowel control, emergent intervention is usually indicated.153
c. Surgical Intervention
If patients are identified as having significant ongoing or increasing pain or
neurologic findings despite appropriate non-surgical treatment, surgery may be indicated.
145 Id.
146 See Telephone Interview with James G. Lowe, supra note 130.
147 See Peter Ullrich, Spinal Cord Compression and Dysfunction from Cervical Stenosis, SPINE HEALTH (Oct. 1,
2009), https://www.spine-health.com/conditions/spinal-stenosis/spinal-cord-compression-and-
dysfunction-cervical-stenosis.
148 Peter Ullrich, Cauda Equina Syndrome, AMERICAN ASS’N OF NEUROLOGIC SURGEONS (Oct. 1,
2009), https://www.aans.org/en/Patients/Neurosurgical-Conditions-and-Treatments/Cauda-
Equina-
Syndrome#:~:text=Cauda%20equina%20syndrome%20(CES)%20occurs,incontinence%20and
%20even%20permanent%20paralysis.
149 See Fact Sheet, Cauda Equina or Lower Motor Neuron Injuries, QUEENSLAND SPINAL CORD
INJURIES SERV., https://www.health.qld.gov.au/__data/assets/pdf_file/0025/426571/lmn-
injuries.pdf (last visited Jan. 29, 2021).
150 Anne Asher, Should You Have Surgery for Cervical Radiculopathy?, VERYWELL HEALTH (May 10,
2020), https://www.verywellhealth.com/neck-surgery-for-cervical-radiculopathy-297091.
151 Do I Need Surgery for Spinal Stenosis?, WEBMD, https://www.webmd.com/back-pain/surgery-for-
spinal-stenosis#1 (last visited Jan. 29, 2021).
152 Id.
153 Cauda Equina Syndrome, THE SPINE HOSPITAL,
https://www.columbiaspine.org/condition/cauda-equina-syndrome/ (last visited Jan. 29, 2021).186 JOURNAL OF HEALTH & BIOMEDICAL LAW VOL. XVII NO. 2
However, surgery would be suggested only if the physician feels reasonably comfortable
that the pain generator has been identified.154 Interventions to address non-symptomatic
anatomic findings, such as ongoing asymptomatic arthritic abnormalities in the aging
patient, should not be performed.155
The urgency of surgery may vary based upon the extent of the symptomatology
and the degree of concern about continued or worsening neurologic function in the
absence of surgical correction.156 The preoperative patient should be clearly advised of
their diagnosis, the surgeon’s opinion about the pain generator, and the types of surgery
available to address the anatomic or clinical problem.157 The surgeon is often faced with
several treatment options, and the patient should be advised of the risks, possible benefits,
and drawbacks of each option.158 Whichever surgical procedure is recommended, the
patient must be educated about the risks and potential complications associated with that
option and the perioperative course expected. The patient should also be advised about
the desired surgical outcome and the expected result of non-surgical treatment choices.159
d. Surgical Procedures
The type of surgical procedure is primarily driven by the anatomic structure
involved and the spine’s region. Because of the spinal cord’s presence in the cervical and
thoracic areas, certain forms of surgery are more technically limited.160 For example,
traditional posterior approaches for disc surgery, such as is commonly done in the lumbar
spine, are limited in the cervical and thoracic regions due to the spinal cord’s presence
within the spinal canal, which obscures a significant portion of the disc structure. In these
two areas, the surgery is often performed from an anterior (cervical) or anterolateral
(thoracic) approach.161
Perhaps the most common surgical procedure for a cervical disc herniation is an
anterior cervical microdiscectomy and fusion. The suffix “ectomy” refers to the “removal
of,” so a laminectomy is removing that part of the vertebra dubbed the lamina.
Conversely, “otomy” deals with making an opening, so a laminotomy is a procedure that
creates an opening in the lamina.162 These interventions permit access to the spinal cord
or nerve roots surrounded by bone, and allow the physician to remove a herniated disc,
free up nerve root compression resulting from degenerative changes, or access a spinal
154 Top 3 Reasons to Have Spine Surgery, VIRGINIA SPINE INSTITUTE (Jan. 17, 2017),
https://www.spinemd.com/top-3-reasons-to-have-spine-surgery/.
155 Jordan Cloyd, Frank. Acosta, Jr. & Christopher Ames, Complications and Outcomes of Lumbar
Spine Surgery in Elderly People: A Review of the Literature, Progress in Geriatrics, July 2008–Vol. 56,
No. 7, at 1320 - 21.
156 Three Signs You Need Back Surgery, UNIVERSITY ORTHOPEDIC ASSOCIATES (Oct. 16, 2019),
https://www.uoanj.com/three-signs-you-need-back-surgery/.
157 See Telephone Interview with James G. Lowe, supra note 130.
158 Id.
159 See Brian Murray, Informed Consent: What Must a Physician Disclose to a Patient?, AMA JOURNAL OF
ETHICS, https://journalofethics.ama-assn.org/article/informed-consent-what-must-physician-
disclose-patient/2012-07 (last visited Jan. 29, 2021).
160 See Telephone Interview with James G. Lowe, supra note 130.
161 Id.
162 See HODGE & HUBBARD, supra note 8, at 435-36.You can also read
