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Gullickson v. Sicora9/4/2001
Appellants sued respondents for medical malpractice. At the conclusion of a five-day trial, the jury found negligence on the part of respondent Dr. Sicora, but no causation. The jury awarded $5,000 for past medical expenses, $8,000 for past pain and suffering, and $500 for loss-of-consortium damages. Appellants made motions for a new trial or judgment notwithstanding the verdict on the grounds that: (a) the jury instructions did not advise the jury properly on the burden of proof regarding a pre-existing medical condition or the duty of a doctor to refer; (b) the verdict was inherently inconsistent; and (c) the verdict was not supported by the evidence. The trial court denied appellants' posttrial motions. Because the jury instructions were not erroneous and the verdict was amply supported by the record and was not inconsistent, we affirm.
FACTS
On January 10, 1996, while vacationing in Mexico, appellant Clifford Gullickson injured himself while swimming. After returning to Minnesota on January 13, Gullickson saw his family physician, respondent Joseph J. Sicora, M.D., with whom he had been treating since 1992. Dr. Sicora took x-rays of Gullickson's neck and right shoulder and found no evidence of injury . Dr. Sicora diagnosed a concussion, neck strain, and shoulder contusion and gave Gullickson an anti-inflammatory medication. On February 5, Gullickson returned to see Dr. Sicora because his pain had not subsided. Dr. Sicora reviewed the earlier x-rays and ordered an additional x-ray from a different view, but the x-ray technician was unable to obtain an x-ray from the requested angle. Dr. Sicora then referred Gullickson to a neurosurgeon, David Danoff, M.D.
On February 14, 1996, Gullickson saw Dr. Danoff. Dr. Danoff reviewed the x rays taken by Dr. Sicora and found some vertebrae off-set at the C6-7 level and forward slippage of the C6 vertebra. Gullickson explained his symptoms to Dr. Danoff, telling him that his neck was not any more restricted than it had been since 1987.
By way of history, Gullickson fractured his T7 spinal vertebra in 1987 when he fell from a deer stand. As a result of that injury , Gullickson had surgery in 1987 to fuse his spinal column between the levels of T4 and T11. Four years later, in 1991, Gullickson stopped working due to chronic back pain. Gullickson had not made any attempt to resume work before this accident occurred in 1996, and he lived with significant physical restrictions from 1987 on.
Dr. Danoff ordered specialized x-rays called tomograms. Upon review of the tomograms, Dr. Danoff concluded that the pedicles at the C6 level were fractured. In Dr. Danoff's opinion, the fractures pre-existed the swimming accident by six months or more. Dr. Danoff sought the opinion of radiologist, Robert Pollock, M.D., who agreed that the tomogram findings represented older damage and did not reflect a recent injury . Although Dr. Danoff subsequently offered to perform spinal-fusion surgery, Gullickson declined because his neck and arm pain was improving.
On March 18, 1996, Gullickson saw orthopedist Sunny Kim, M.D. Dr. Kim determined that Gullickson had a fracture dislocation and a possible occlusion of the right vertebral artery. Dr. Kim estimated that the fracture occurred three months earlier.
Dr. Kim referred Gullickson to spine surgeon, Bruce Bartie, M.D., for consultation. Dr. Bartie recommended against surgery because Gullickson's spinal column appeared to be stable at C6, there was no evidence of spinal cord or nerve root compression, and his symptoms were improving.
Gullickson returned to see Dr. Kim in April 1997. Dr. Kim again recommended surgery and on May 12, 1997, Dr.
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