Scoliosis correction surgery – a lawyer’s perspective.

Most children and teenagers with scoliosis do not suffer with pain or obvious symptoms. Sometimes changes in posture will be noticeable, or it may be observed that the tops of the shoulders are uneven, or that one shoulder blade is more prominent than the other. As scoliosis progresses, it may become more obvious, and also lead to significant back pain.

Sometimes the diagnosis is missed by medical professionals, and this may be important because delay in diagnosis may limit some of the available treatment options. The diagnosis may be made “accidentally”, through a child having a chest x-ray for example in which abnormalities of the spine are visible. In a young child the appearance of a vertebral segmentation anomaly may be suggestive of a scoliosis or another form of curvature developing as the spine grows.

A claim for medical negligence may arise in circumstances where a medical professional has reason to suspect scoliosis or a similar abnormality but fails to make a referral to a spinal specialist. It is of course not usually the case that urgent surgery is required, but it is important that a child is referred to a specialist and kept under review. Paediatric spinal growth is not linear but has two rapid deterioration periods, the first being between birth and six years, and the second being in the year leading up to and a year and a half after the start of menarche in a girl. These “spurts” make it very important to keep children under review, and to be aware of when a curve may be accelerating and becoming more severe.

Timing is also important because of something termed “growing rod technology”. This is instrumentation placed in the spine which allows the spine to continue to grow but controls the curve. While it involves fusion at the level of the spine where the most significant deformity is present, the remainder of the spine is not fused, to allow it to continue to grow, but in a manner which controls and lessens the curvature. “Growing rod technology”, however is not appropriate usually after a child passes the age of nine or ten; or at least after that age the technology is of marginal benefit and technically more challenging.

If a child misses out on the opportunity to have “growing rod technology”, where it is indicated, the only option available will be definitive fusion surgery. This can result in a degree of coronal imbalance, disproportionate trunk to limb growth, as well as reduced overall height. Foreshortened thoracic spine and chest cage development can also lead to reduced lung capacity, which can ultimately impact upon mortality.

A negligent failure to diagnose or properly manage the course of scoliosis treatment in a child can have very significant consequences, and we have seen claims where these consequences have arisen through poor management by the surgeons.

As with most surgery, planning in scoliosis correction surgery is crucial. In seeking to correct a lumbar curve, for example, extending the fusion too far down the spine will lead to a loss of flexibility and mobility, especially when extending from L3 to L4, and on to L5 ad there is a significant increase in stiffness with each additional level fused. The choice of the Lowest Instrumented Vertebra (LIV) is therefore of crucial importance in pre-operative planning.

The surgeon is seeking to correct the spine and prevent progression of the curve, but also to preserve mobility. It will be seen therefore that a certain amount of discretion is allowed to the surgeon, but if a patient ends up with very poor flexibility and mobility, the judgment of the surgeon may be called into question. On the other hand if the surgeon goes “too short” further surgery may be required because the curve has not been fully corrected.

We have successfully pursued claims on behalf of claimants where it has been alleged that the surgeon selected an inappropriate LIV, resulting in the need for further corrective surgery.

Successful pre-operative planning involves carrying out “bending” x-rays or “traction” x-rays pre-operatively to assess flexibility and mobility; failure to carry out such x-rays might give rise to a claim in negligence in the event of a poor outcome.

Scoliosis correction surgery is dangerous because it involves operating in close proximity to the spinal cord. The greatest risk, apart from death, is of course paralysis, arising from direct injury to the spinal cord, or in other ways. There is also a risk of excessive blood loss, which can lead to hypotension and anaemia, which may again be contributory causes to catastrophic spinal cord injury. There are a number of important safeguarding mechanisms which can and should be used during scoliosis correction surgery.

To reduce the risk of paralysis, the spinal cord is monitored during surgery with several simultaneous methods.

The first method is somatosensory evoked potentials (SSEPs), which are electrical signals created by stimulation to the peripheral nerves. The signals should remain constant throughout the surgery, and if they begin to slow at any point, this can indicate compromise to the spinal cord or its blood supply.

The second method is motor evoked potentials (MEPs), which are similar to SSEPs, but which monitor electrical signals from muscles rather than nerves.

MEPs and SSEPs are used together in the course of scoliosis correction surgery, with the aim of monitoring the anterior and posterior spinal cord. If only one of the modalities is used, it risks missing any damage to the spinal cord not being monitored, since SSEPs effectively monitor the posterior spinal cord, and MEPs more effectively monitor the anterior spinal cord.

Prior to the use of SSEPs and MEPs, the Stagnara wake-up test was commonly used. This involved waking the patient during the surgery and asking them to move their feet. Due to improvements in the electrical monitoring methods, the wake-up test is now rarely used.

The purpose of these tests is to provide an “early warning signal” of any spinal cord complication. If too much compression, or too much loss of blood, is compromising the spinal cord, the surgery can be stopped and the surgical team can instead concentrate on restoring as much of the spinal cord’s health as is possible.

It is obviously also vital to accurately measure blood loss and blood pressure throughout the procedure, as hypotension significantly increases the risk of spinal cord injury.
Following surgery, it is important to ensure that the patient has normal sensation as soon as possible, as if the spinal cord has been damaged or compromised, remedial surgery (in the first instance to remove the metalwork) will be required urgently to maximise the chances of recovery or at least some improvement in function.

We have successfully pursued claims on behalf of claimants who have, tragically, been paralysed, when there was a failure to employ all of the safeguarding measures set out above, including failing to properly monitor the functioning of the spinal cord during scoliosis correction surgery.

Scoliosis correction surgery is highly technical surgery carried out by skilled and experienced surgeons. Of course it rarely goes wrong. Sadly it has been our experience, however, that claims for negligence do arise from the circumstances of such surgery in a variety of different ways, which this article has tried to elucidate.