Preexisting injury relates to causation, not to damages
In the Courts. Oct. 15, 2001.


--------------------------------------------------------------------------------

In an appeal of a medical malpractice judgement, patient Clifford Gullickson sought additional relief against family physician Joseph J. Sicora, MD.

The appellate court affirmed a Minnesota trial court verdict that found while Dr. Sicora was negligent, his negligence was not a direct cause of the patient's injuries. The jury limited the damage award to $5,000 for past medical expenses, $8,000 for past pain and suffering and $500 to Gullickson's wife for loss of consortium.

Gullickson's appeal of the trial court's verdict was based in part on the claim that the trial judge erred in not advising the jury properly on the burden of proof regarding a preexisting medical condition or the duty of the doctor to refer.

At trial, the Gullicksons claimed that Dr. Sicora was negligent in failing to diagnose and properly treat Gullickson's injury and that this delay led to the need for spinal fusion surgery.

Whether Gullickson's injuries resulted from a swimming mishap that occurred while he was on vacation in Mexico or were the result of undetected damage from another incident years earlier was a question of fact before the trial court.

Dr. Sicora, who saw Gullickson after his return from Mexico, took x-rays of his neck and right shoulder and found no evidence of injury. He diagnosed a concussion, neck strain and shoulder contusion and gave Gullickson an anti-inflammatory medication. When the patient returned to see Dr. Sicora about a month later because his pain had not subsided, he reviewed earlier x-rays, ordered additional ones and referred him to a neurosurgeon.

Shortly after that, the patient saw a neurosurgeon who reviewed the x-rays taken by Dr. Sicora and found some vertebrae off-set and forward slippage of another vertebra. Gullickson explained his symptoms to the neurosurgeon, telling him that his neck was not any more restricted than it had been since 1987 when he had spinal surgery after fracturing a spinal vertebra.

Gullickson had stopped working in 1991 due to chronic back pain and he had not made any attempt to resume work before this latest injury occurred in 1996. He lived with significant physical restrictions from 1987 onward.

The neurosurgeon ordered tomograms, which revealed further damage. In his opinion, though, these fractures preexisted the swimming mishap by six months or more. The neurosurgeon subsequently offered to perform spinal fusion surgery. Gullickson declined because his neck and arm pain was improving.

Gullickson then saw an orthopedist who determined that he had a fracture dislocation and a possible occlusion of the right vertebral artery. The orthopedist estimated that the fracture occurred three months earlier. She referred Gullickson to an orthopedic surgeon who recommended against surgery because Gullickson's spinal column appeared to be stable, there was no evidence of spinal cord or nerve root compression, and his symptoms were improving.

Gullickson returned to the orthopedist a year later. The orthopedist recommended spinal fusion surgery, which was performed a month later.

The trial court testimony was dominated by medical experts.

The Gullicksons' expert, an orthopedic surgeon, testified that Dr. Sicora's negligent and delayed diagnosis eliminated the possibility of a nonsurgical treatment for Gullickson's injury. Based on his review of the medical records, the expert said the subluxation evident in those first x-rays taken after the swimming mishap was a new injury with substantial new nerve damage and vertebral instability. If the injury had been properly diagnosed and treated earlier, it "would not have progressed to a dislocation."

According to the expert witness, by the time Gullickson saw the neurosurgeon that Dr. Sicora referred him to, surgery was the only viable treatment option. But he also conceded that the x-rays were consistent with an "old" injury and that his trial testimony was inconsistent with an affidavit he signed earlier that stated that nonsurgical bracing remained a viable option for a week beyond the date Gullickson saw that first neurosurgeon.

The surgeon who ultimately operated testified that the best time to operate on a fracture is within a month of the injury. It was his opinion that if he had seen Gullickson earlier, he could have avoided surgery by the use of a halo and skeletal traction.

Another medical expert, an orthopedic surgeon, testified for Dr. Sicora. He stated that, in his opinion, the subluxation was caused by pedicle fractures and that the fractures occurred "many months and probably years" before the tomograms were taken. Because the x-ray findings represented old injuries, it was his opinion that nonsurgical bracing would have been ineffective at the time Dr. Sicora first saw the patient.

The neurosurgeon Dr. Sicora referred Gullickson to testified that he believed that the subluxation and fractures he saw in the tomograms had occurred six months or more before the accident in Mexico.

He acknowledged that there is "a time during which bone healing takes place and your ability to realign the bone is much greater before any healing has taken place," but he stated that in Gullickson's case, "healing had taken place."

The neurosurgeon admitted that he could not rule out a new injury to a ligament or muscle as a result of the wave incident, but that the changes seen in the x-rays "were sometime in the remote past and there was nothing to suggest that there had been any new bony changes." Based on what he observed, he agreed with Dr. Sicora's decision not to prescribe a rigid cervical collar.

The county district court noted that this "was not a case about whether [Dr. Sicora's] conduct aggravated a preexisting injury. It was principally about whether [his] failure to make a timely diagnosis of a neck injury caused Clifford Gullickson to have to undergo surgery rather than a less invasive form of treatment."

In addition, the court stated that the "evidence concerning [Gullickson's] preexisting injury related to the issue of causation, not apportioning damages."

The appellate court affirmed the trial court's finding that the evidence and arguments at trial did not support the jury instructions sought by Gullickson -- Duty of a Doctor to Refer and Items of Personal Damage-Aggravation -- and that the verdict was amply supported by the record and was not inconsistent.


--------------------------------------------------------------------------------

This column is provided by Ornel Inc., a Massachusetts-based firm that provides legal summaries. (781) 340-9683 Ornel Inc. (http://www.ornel.com/)

Back to top.


--------------------------------------------------------------------------------

Copyright 2001 American Medical Association. All rights reserved.

==============================
"It was once written "To thine own self be true". But how do we know who we really are? Every man must confront the monster within himself, if he is ever to find peace without. .." Outer Limits(Monster)