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Lama v. Borras

Citation. Lama v. Borras, 16 F.3d 473, 1994)..
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Brief Fact Summary.

Defendant operated on Plaintiff twice to cure Plaintiff’s back pain. Plaintiff developed an infection and was diagnosed with discitis. Plaintiff sued Defendant for negligence.

Synopsis of Rule of Law.

A doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing, in a similar practice, in a similar community, and under like circumstances.


Plaintiff was suffering from back pain and was referred to Defendant, a neurosurgeon. Defendant concluded that Plaintiff had a herniated disc and scheduled Plaintiff for surgery. Defendant neither prescribed nor enforced a regime of absolute bed rest prior to surgery, but did instruct Plaintiff to enter the hospital one week before the surgery in order to clean out his lungs. Plaintiff was a heavy smoker. Plaintiff was not subjected to conservative treatment. While operating, Defendant discovered that Plaintiff had an “extruded” disc and attempted to remove the extruding material. Either because Defendant failed to remove all the material, or because he operated at the wrong level, Plaintiff’s back pain returned in full force. Defendant scheduled Plaintiff for a second surgery. It is unclear if the second operation cured the herniated disc. However, shortly after the second surgery, Plaintiff began to experience severe pain in his back. Another doctor, Dr. Piazza, diagnosed Pl
aintiff with discitis (an infection of the space between discs) and initiated antibiotic treatment. Discitis is extremely painful and very slow to cure. Plaintiff alleged that Defendant was negligent in four areas: (1) failure to provide proper conservative medical treatment; (2) premature and otherwise improper discharge after surgery; (3) negligent performance of surgery; and (4) failure to provide proper management for the infection. The jury awarded Plaintiff $600,000. Defendant appealed.


Is Defendant required to use that degree of skill and learning which is normally possessed and used by doctors in good standing, in a similar practice, in a similar community, and under like circumstances?


Yes. Judgment for Plaintiff affirmed.
* To establish a prima facie case of medical malpractice (negligence) Plaintiff must demonstrate: (1) the standard of care required by Defendant; (2) proof that Defendant failed to meet this standard of care; and, (3) a causal relation between the act or omission of Defendant and the injury suffered. To establish the applicable standard of care, expert testimony is usually required. Proof of causation is also more difficult because a jury must often grapple with scientific processes that are unfamiliar and involve inherent uncertainty. By a preponderance of the evidence, Plaintiff must prove that Defendant’s act or omission to act was the factor “most probable” in causing injury to Plaintiff.
* In addressing Defendant’s claim on appeal, that Plaintiff failed to introduce relevant standards of care or a causal link, the court focuses on Defendant’s failure to provide conservative treatment prior to the first operation.
* The standard practice is for a neurosurgeon to postpone lumbar disc surgery while the patient undergoes conservative treatment, with a period of absolute bed rest as the prime ingredient. An expert testified at trial, “all neurosurgeons go for [conservative treatment] before they finally decide on an operation.” Defendant neither prescribed nor attempted to enforce a conservative regime. There was sufficient evidence for the jury to conclude that Defendant failed to provide customary conservative treatment and thus breached the applicable standard of care.
* There are two issues in the chain of causation: (1) Did the surgery cause the infection; and (2) would conservative treatment have made surgery unnecessary. If a doctor negligently exposes a patient to risk-prone surgery, he is liable for the harm associated with a foreseeable risk. In this case, discitis was a foreseeable risk. Also, almost all of the experts testified that conservative treatment would eliminate the need for surgery. The jury could have reasonably found that Defendant’s failure to administer conservative treatment was the “most probable cause” of the first operation.


This case discusses the complex issues that a plaintiff faces in a claim for negligent medical malpractice.

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