One of the most common injuries that our experienced injury lawyers deal with are victims suffering either a herniated, protruding or bulging disc/disk. Spinal injuries involving an abnormal disc injury, often do not lead to surgery by the time we attempt to settle these injury cases, or by the time we go to a jury trial. How do we present the evidence in order to obtain maximum compensation for a victim of another person's negligent act or carelessness? Read on.
First, virtually every client with disc injury is being treated by an orthopedic doctor or surgeon or general practitioner and sometimes a pain management or rehabilitation specialist (there are even time they get treated by their family/general practitioner). No matter who the treating doctor is, usually a disc injury to the low back (lumbar spine) or neck (cervical spine) is objectively diagnosed by a magnetic resonance imaging study (MRI). MRI's are generally the best test for looking at the soft tissues called discs that are like shock absorbers or spacers between each of the spinal vertebral bones. The discs in the back/neck/spine are what allow us to have fairly good and free movement without pain in our back.
When you suffer a personal injury, the jelly-like spinal disc is at risk of being smashed or damaged so that either the disc bulges, protrudes, or "herniates" meaning that there's actual damage to the outer coating of the disc and there is an outward, abnormal portion of the jelly from the disc squeezed out. MRI's show with some clarity what's going on with that disc material and whether it is pressing on any nerve or other structure of the body, which often causes pain. Typically, there is not a confirmed disc injury without the MRI which shows the soft tissues. Clearly, injury attorneys are not doctors, but we must be experienced at working with doctors in their court depositions or with the testimony they offer.
Innumerable medical studies show that doing back surgery to either remove a part of the disc or remove the entire disc, have many risks and complications which of course are completely ignored by the defense attorneys representing insurance companies or companies that are being sued. On the one hand, they want to talk about a surgery being a piece of cake and they want to minimize the pain and rehabilitation, and on the other hand, they never want the jury to think about the risks or complications, or whether those risks or complications occurred in the actual personal injury victim we represent.
The rehabilitation from back or neck surgery can be incredibly difficult and with all respect to surgeons that do a great job on these surgeries, let's face it - no one wants to highlight the fact that the person who is already in intractable pain will suffer even more pain during the course of rehabilitation after the surgery either; especially, when the doctor is explaining the benefits of the surgery to the patient. Yes, the medical professional needs to go over those risks and complications but they don't want to focus the person suffering extreme pain on what the rehabilitation course will be like.
This is just one of the medical tradeoffs from being in a personal injury lawsuit that was not your fault. This tends to be infuriating to our clients especially when we get into a lawsuit and the attorney for the insurance company or defendant tries to put all of the burden and guilt on the personal injury client who is just trying to get compensation back for what they never would have been going through but for the carelessness of the other party.
Because of many medical studies that show avoiding surgery is the first and best course of action, most doctors will suggest to their patient that they go through a series of epidural steroid injections in their back or neck to try to reduce pain and inflammation without actual disc surgery. We have had numerous clients that have been in similar circumstances and gone through this type of epidural steroid injection management before disk surgery is done.
Many clients ask us as injury attorneys, should I have back or neck surgery? Honestly, all a lawyer can do is explain what the legal implications will be if the client undergoes surgery versus not undergoing surgery. We must avoid ever trying to supplant the medical surgeon's advice to a patient.
In the other hand, we do have a role in advising clients on questions they may have about whether the surgeon who is giving them advice, may later give a fair report or opinion about the connection between the surgery and the underlying accidental injury. By this, I mean clients sometimes ask about the reputation of a surgeon that they have been referred to. We may have had to conduct that doctor's deposition in a previous case or our colleagues may have done so. Most consumers are completely unaware of the reputation of their surgeon not only as far as their skill, but as to whether that surgeon is willing to give a court deposition about what the patient has gone through, and whether the surgery was brought about by the car accident or other accidental injury suffered.
Amazingly, there are some consumers that have no idea the surgeon they selected may testify at the request of insurance companies every month of the year and routinely testify that consumers and patients only had a minimal injury and that the fact that they suffered disc injury is no big deal or was a pre-existing condition that has little or nothing to do with a car accident.
In other words, some of these doctors are "hired guns" of the insurance companies and this is not just a suspicion in some cases. We have conducted depositions of some orthopedic surgeons in the local community that have admitted earning $200,000 or $300,000 from doing orthopedic examinations at the routine request of insurance companies. That is a lot of money to do evaluations...that is not active treatment at all. In some cases, attorneys have required the doctors to produce an IRS Form 1099 showing $200,000 or $300,000 paid from an insurance company on an annual basis. Should a consumer with a personal injury caused by another person's carelessness care about whether their orthopedic surgeon is banking $300,000 a year from one or more of the car insurance companies? Obviously the answer is "yes." Most consumers have no idea that their doctors may be biased against personal injury victims simply by virtue of their massive income from insurance companies or big corporations.
In every community, there are hired guns that consumers need to know about before selecting a surgeon. In our local community of Hampton Roads, Virginia (VA) there is one particular orthopedic surgeon who sees patients every week and has a decent general reputation. On the other hand, consumers have no idea he is making $300,000 a year from doing examinations for insurance companies and testifying that the claimant almost never had anything wrong with them. If you were referred to this particular doctor for a herniated disc that you suffered in a car accident, would you want your personal injury attorney to tell you about what we know? I think you get the point.
It is important to obtain experienced injury attorneys that have been to court and have tried jury trials and understand how to present medical evidence of injuries to the back and neck. Our firm has written about the importance of presenting medical evidence in personal injury cases. Lining up the medical professionals, occasionally obtaining appropriate medical illustrations to show the jury the magnitude of the disc injury, calling and exploring the client's course of physical therapy with a therapist, about the extent of rehabilitation, all of these pieces are important in presenting personal injury cases to juries. When you consider surgery for a herniated or bulging disc, as a personal injury claimant in a lawsuit, make sure that you have done your homework about the surgeon, and make sure you consult with your personal injury lawyer about all aspects of your medical case.
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