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Kuespert v. Treloar3/9/2000
Dr. Richard Treloar implanted a Steffe stabilizing plate and screws in Dennis Kuespert's back during lumbar fusion surgery. After the screws broke, Mr. Kuespert sued, alleging, among other things, that Dr. Treloar should have informed him that his weight created a material risk of breakage. The superior court dismissed this claim. On appeal, Mr. Kuespert argues that the manufacturer's warnings for the plate and screws and the testimony of a biomedical engineer concerning the risk were sufficient to take this issue to the jury. Mr. Kuespert also contends the court erred when it prohibited him from calling two former patients of Dr. Treloar to testify he did not inform them of other material risks presented by the procedure. We affirm.
FACTS
AcroMed Corporation manufactures Steffe plates and screws for orthopedic uses. A surgeon can implant this device in the patient's lower vertebrae to hold the vertebrae stable. AcroMed includes with its product a brochure indicating that patient weight is a factor that may affect the success of the plates. Under the heading 'WARNINGS, PRECAUTIONS, AND ADVERSE EFFECTS CONCERNING TEMPORARY METALLIC INTERNAL FIXATION DEVICES' the brochure states:
Following are specific warnings, precautions, and adverse effects which should be understood by the surgeon and explained to the patient.
4. PATIENT SELECTIONS. In selecting patients for internal fixation devices, the following factors can be of extreme importance to the eventual success of the procedure:
A. The patient's weight. An overweight or obese patient can produce loads on the device which can lead to failure of the appliance and the operation.
Mr. Kuespert filed this action against Dr. Treloar in October 1994. In it, he alleged Dr. Treloar did not inform him 'of a material fact or facts relating to the treatment and implantation of the Steffe plates and screws.' Specifically, Dr. Treloar had performed a lumbar fusion on him in October 1991 with internal fixation provided by a Steffe plate and screws. Dr. Treloar did not tell him that his weight might adversely affect the success of his surgery or inform him of any other risk associated with the device. And Dr. Treloar did not advise Mr. Kuespert that two of his patients had experienced failure of the screws. Both of Mr. Kuespert's screws broke within three months of his surgery.
Dr. Treloar testified he had read AcroMed's brochure, but he did not consider the patient's weight to be a material risk. In his experience, some thin patients had broken the devices, and some overweight patients had not. Other medical doctors in the field of orthopedics testified to similar experiences. None of them believed the patient's weight was a material risk in using this appliance. To the contrary, they believed it was generally accepted in the field of orthopedic surgery that thin as well as overweight people break screws. Dr. Paul Anderson testified for the defense. He had performed 400 to 500 similar surgeries. He agreed with the other doctors that it was not accepted that overweight people break more screws. He also agreed with Dr. Edgar Dawson, another defense expert, that the risk of breakage, overall, was only 4 to 6 percent.
Mr. Kuespert presented the testimony of Dr. Harold Alexander, a biomedical engineer. Dr. Alexander explained that an overweight or obese patient produces loads on the Steffe plate and screws that may lead to failure of the appliance. In his opinion, Mr. Kuespert was too heavy for the device. Mr. Kuespert weighed 220 to 225 pounds, about 50 pounds over what Dr. Alexander believes is appropriate for a candidate of his height using this orthopedic implant. He
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