Visitor Question

Surgeon missed herniated disk?

Submitted By: Jamie (Commack, NY, USA)

I had a ‘huge’ (that was the surgeons description) herniation of the L4/L5 disk and had surgery to correct it.

After the surgery I felt the usual soreness but every day was a little better.

Four days after the surgery I started getting sudden muscle spasms that felt worse than anything I’ve ever felt.

After two days of these spasms and pain I called the doctor.

I didn’t get a call back for another 2 days and then was told to come back for another MRI. I went to the hospital and got the MRI.

They told me the disk had herniated again and I needed another surgery.

After 30 hours in the hospital, I finally had the 2nd surgery, 6 days after the first. After the surgery the surgeon told me I did nothing wrong with the recovery and he may have missed some disk that should have been taken out during the first surgery.

This caused me to pay the multiple copays (ambulance and surgery), extra time missed from work for my husband who is an hourly employee, among other tangible and intangible costs. Is this malpractice? What are my options? Thank you.

Disclaimer: Our response is not formal legal advice and does not create an attorney-client relationship. It is generic legal information based on the very limited information provided. Do not rely upon the information in our response, or anywhere else on this site, when deciding the proper course of a legal matter. Always get a personalized case review from a local attorney.


Dear Jamie,

Medical malpractice usually boils down to whether other surgeons in the “medical community” under the same circumstances might have overlooked the additional damage to your disk(s).

There is no doubt you endured substantial pain and suffering. The question is whether your additional co-pays and pain and suffering are the result of medical malpractice.

To determine whether malpractice occurred will require your case to be thoroughly examined by one or more medical experts. That’s not something you can do on your own. It’s extremely difficult to find surgeons in your area who will agree to review your case knowing the reason is to establish medical malpractice against another doctor.

Doing so makes the doctor(s) reviewing your case subject to subpoenas to testify if your case evolves into a lawsuit. Doctors, lawyers, and other professionals normally don’t like criticizing other professionals in their community.

That’s why it’s vital for you to seek legal assistance. You just can’t represent yourself in a medical malpractice case. To attempt to do so would be catastrophic. Doctors rarely, if ever will admit to having committed malpractice.

Additionally, most medical doctors have included in their malpractice insurance policy a “reservation of approval of settlement.” Unlike car accident insurance, where an insurance company can settle their insured’s case even if their insured is adamant the accident wasn’t his fault, doctor’s have a right to decide whether or not they want to settle a malpractice a case.

This means even if medical malpractice is obvious, the doctor’s insurance company can’t settle the case without express written approval from the doctor.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from a licensed attorney. Find a local attorney to give you a free case review here , or call (888) 647-2490.

Best of luck,

Published: October 19, 2013

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