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Anderson v. Nussbaum11/14/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Joe A. Anderson appeals from a judgment entered for the defense following a trial by jury in a medical malpractice case. Plaintiff's sole argument on appeal is that the trial court erred in denying his motion for a new trial. He contends that (1) the trial judge applied the wrong standard in denying his motion and (2) there was not sufficient evidence to support the jury's verdict that the defendant Richard E. Nussbaum, M.D., was not "negligent in his medical diagnosis, care and treatment of plaintiff."
We have reviewed this record and it is clear that plaintiff is wrong in both arguments. The trial court applied the proper standard in ruling on plaintiff's new trial motion and there was substantial credible evidence supporting the jury's verdict. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January of 1998, plaintiff, who was 50 years old at the time, saw Dr. Nussbaum, a board certified orthopedic surgeon, about his nearly two year history of severe low back pain. His complaints included not only intense back pain but also pain shooting down his right leg and in his right testicle. Before seeing Dr. Nussbaum he had tried (1) chiropractic care, (2) his family physician who prescribed Vicodin, and (3) physical therapy. In spite of these medical interventions, his pain only became progressively worse.
Plaintiff advised Dr. Nussbaum that 13 years earlier he had sustained broken ribs and a broken left clavicle in a motorcycle accident. This collarbone fracture had apparently healed and he had no complaints with respect to his left shoulder or in the area of the left clavicle; as far as he was concerned he had fully recovered. He never had occasion to report any problem with his left clavicle or shoulder to a physician. Indeed, he described his general health, prior to the surgery that is the subject of this litigation, as follows: "Other than my back problem, I was in great shape . . . everything was going great . . . ." He regularly did a full-body workout at the gym, including 750 pound leg presses and 100 pound arm curls.
Dr. Nussbaum took x-rays of plaintiff's low back on January 30, 1998; those pictures reflected certain abnormalities. A subsequent MRI and discography revealed that plaintiff had abnormal discs at L3-L4 and L5-S1 that were separated by a normal disc at L4-L5. Dr. Nussbaum recommended a surgical procedure called an Anterior Lumbar Interbody Fusion (ALIF) procedure with a BAK device. This procedure uses a retroperitoneal surgical approach around the abdominal contents to expose the lumbar spine in order to fuse the abnormal disc space by insertion of the BAK device (a hollow titanium cylinder). BAK cages were state of the art. Dr. Nussbaum had performed between 200-250 such ALIF surgeries, and had implanted approximately 100 BAK cages into his own patients before plaintiff's surgery. However, he had never performed such an operation on non-contiguous levels before. He therefore decided to call one of the co-inventors of the BAK device, a Stephen Kuslich, M.D., of Minneapolis, Minnesota. Dr. Kuslich later testified at trial that he recalled the conversation and that he advised Dr. Nussbaum that it was appropriate to use a BAK cage at noncontiguous levels. He also opined at trial, as an expert orthopedist, that Dr. Nussbaum had complied with the
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