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Promen v. Ward12/11/1990
REILLY, Presiding Judge.
Plaintiff, Shirley A. Promen, appeals from a jury verdict and judgment in favor of defendant, Richard M. Ward, M.D., rendered in the Franklin County Court of Common Pleas and asserts the following assignments of error:
"I. The trial court erred by failing to enter judgment notwithstanding the verdict or to order a new trial since a surgeon of ordinary skill, care and diligence would have operated where he intended to operate, which defendant admitted he did not do.
"II. The judgment is contrary to the manifest weight of the evidence."
The facts relevant to this appeal are generally both undisputed and uncomplicated. Plaintiff slipped and fell on some ice in a parking lot in 1981, injuring her back. Suffering from severe pain and decreased mobility, she was referred to defendant, a board certified orthopedic surgeon, for further treatment in 1984. After performing a number of tests, defendant diagnosed a ruptured disk in plaintiff's lower back located at L5-S1.
The testimony of the two expert witnesses presented at trial explained that the lower spinal column consists of five separate segments called lumbar vertebrae. Directly below the last of these segments, LS, is the sacrum or S1. Located between each segment is a disk composed of cartilage and surrounded by fibrous tissue which serves as a cushion. Each of these disks is identified in terms of the interspace it occupies. Thus, the disk located between the lowermost lumbar vertebra, L5, and the sacrum, S1, is known as L5-S1.
As a result of a back injury , a disk may bulge or rupture and thereby impinge on an adjacent nerve, causing pain. One of the recognized treatments for this condition is a laminectomy, in which the surgeon removes that part of the disk impinging on the nerve. Defendant testified that his tests revealed a normal disk at L4-L5, and a ruptured disk at the next interspace, L5-S1. Based on the testimony of plaintiff and defendant, and the hospital records admitted into evidence, it is uncontested that defendant intended to perform surgery on the disk previously diagnosed and located at L5-S1. It is also uncontested that defendant performed the procedure on the L4-L5 disk, leaving the L5-S1 disk untouched.
Defendant testified that, upon making his incision and finding a ruptured disk, he assumed that this disk was the L5-S1 disk previously diagnosed. It is assumed that the disk on which defendant operated was ruptured, even though this did not appear in the preoperative tests, as the evidence established that this is not an uncommon occurrence. Defendant also testified that nearly two months after the surgery, he discovered that he had operated on the disk located at L4-L5, and not the disk at L5-S1, and that he informed plaintiff of this fact.
Defendant's office record, written in his own hand and made at the time, indicates that he explained to plaintiff that he "was at the wrong level." Defendant also offered to perform a second operation at no cost to plaintiff.
Following the surgery, plaintiff's symptoms persisted. During the next two years, she consulted three different doctors who recommended various courses of treatment. Nevertheless, defendant continued to recommend surgery on the L5-S1 disk. He testified that he "* * * always felt that she had a ruptured disk at the L5-S1 level and that it should be removed." Eventually, in 1987, plaintiff sought treatment from Dr. Peek, an orthopedic surgeon practicing in California. Dr. Peek also diagnosed a ruptured disk at L5-S1 and performed a laminectomy on that disk. Since that operation, plaintiff reported excellent progress a
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