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Tucker v. Korpita

Florida Court of Appeal, Fourth District

November 16, 2011

Earleen TUCKER, Appellant,
v.
Patricia KORPITA, as Personal Representative of the Estate of Andrew Korpita, Appellee.

Page 717

Bradley G. Harper of Olds, Stephens & Harper, P.A., West Palm Beach, for appellant.

William T. Abel of Adams, Adams & Baca, West Palm Beach, for appellee.

LEVINE, J.

The issue in this case is whether appellant was entitled to an intervening cause jury instruction. We find, under the facts of this case, that the trial court erred by not instructing the jury as requested. We reverse and remand.

In December 2007, appellee rear-ended appellant while driving in West Palm Beach. Appellant filed a claim for negligence. Appellee admitted negligence and a trial ensued only on the issues of causation and damages.

At trial, appellant called several expert witnesses. Dr. Robert Simon testified about performing a minimally invasive discectomy on appellant. Dr. Simon started treating appellant in 2008 regarding pain in her lower back. After appellant visited Dr. Simon on several occasions with continuing neck and back pain, the doctor performed a percutaneous discectomy on appellant. Appellant responded positively to the procedure, and the doctor reduced the impairment rating from 12% to 7%.

Dr. Jane Bistline testified about performing a lumbar discogram and epidural steroid injections on appellant. The doctor diagnosed three bulging discs, as well as a herniation in the disc between the lumbar spine and sacrum. In performing the discogram, the disc between the lumbar spine and sacrum tested positive for pain. Dr. Bistline opined that appellant suffered a permanent injury. On cross-examination, appellee asked Dr. Bistline whether the spinal wand used by Dr. Simon in the discectomy had " been deemed not to be reasonable or necessary for the treatment of low back pain." Dr. Bistline stated that this particular wand was " really good" for low back pain.

An expert witness for appellee, Dr. Jordan Grabel, opined that the small abnormalities suffered by appellant were not

Page 718

caused by the 2007 car accident. Dr. Grabel testified that the accident did not cause permanent injury to appellant and that surgery was not warranted. According to Dr. Grabel, appellant suffered from spondylolisthesis in the lower lumbar spine. Dr. Grabel opined that the crash did not exacerbate any preexisting condition and that the percutaneous discectomy was entirely unnecessary.

Dr. Robert Kagan, a radiologist, reviewed appellant's MRI results. Dr. Kagan testified that on appellant's MRI from 2004, there was a " problem" between the L5 vertebra and the sacrum, as well as some " slippage" to the L5 vertebra. Dr. Kagan testified that, in his opinion, appellant's issues appeared to be " congenital." Dr. Kagan did not note any condition that would improve or benefit from a percutaneous discectomy. Dr. Kagan testified on cross-examination that a percutaneous discectomy could accelerate the degeneration in appellant's lumbar spine.

Appellee asked Dr. Kagan whether appellant would " benefit from having some type of percutaneous diskectomy performed." Dr. Kagan responded,

No, not at all. Because percutaneous diskectomy is meant for a herniated disk. Diskectomy means to remove a herniated disk. There was never a herniated disk to begin with here, so you're not going to help the situation with a percutaneous diskectomy. This is a pseudo herniation, it's not a herniation.

On cross-examination, Dr. Kagan elaborated further that the disc " looks just like a herniation, but it's not called a herniation. It's called a pseudo herniation." Dr. Kagan concluded that since appellant does not have a herniation, then a percutaneous discectomy would be " inappropriate" since " you don't do a percutaneous disconnect when someone has spondylolisthesis. Forget about the herniation. Spondylolisthesis does not respond to percutaneous diskectomy." Dr. Kagan concluded that a " [p]ercutaneous diskectomy" would be " totally contraindicated in this ...


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