This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Clifford Gullickson, et al.,





Joseph J. Sicora, M.D., et al.,



Robert A. Pollock, M.D., et al.,




Filed September 4, 2001


Halbrooks, Judge


Hennepin County District Court

File No. 981930



Paul A. Sortland, Sortland Law Office, 33 South 6th Street, Suite 4100, Minneapolis, MN 55402-3601 (for appellants)


Robert M. Mahoney, Geraghty, O’Loughlin & Kenney, P.A., 386 North Wabasha Street, Suite 1400, St. Paul, MN 55102-1308 (for respondents)




            Considered and decided by Hanson, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            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. 


            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. Kim fused Gullickson’s neck from C5‑T3.

In January 1998, Gullickson and his wife sued Drs. Sicora, Danoff, and Pollock, and their clinics for negligent diagnosis and treatment.  Before trial, appellants voluntarily dismissed Drs. Danoff and Pollock.  At trial, appellants claimed that Dr. Sicora was negligent in failing to diagnose and properly treat Gullickson’s injury and that this delay led to the need for the spinal-fusion surgery.

A five-day jury trial began on March 27, 2000.  The testimony at trial was dominated by medical experts.  Appellants called orthopedic surgeon, Richard Goodman, M.D., who testified that Dr. Sicora’s negligent and delayed diagnosis eliminated the possibility of a non-surgical treatment for Gullickson’s injury.  Dr. Goodman testified that, based on his review of Gullickson’s records, the January 1996 subluxation was a new injury with substantial new nerve damage and vertebral instability and if the injury had been properly diagnosed and treated earlier, it “would not have progressed from a subluxation to a dislocation.”  According to Dr. Goodman, by the time Gullickson saw Dr. Danoff on February 14, 1996, surgery was the only viable treatment option.  But Dr. Goodman conceded on cross-examination that the x-rays were consistent with an “old” injury and that his trial testimony was inconsistent with an affidavit he signed when Drs. Danoff and Pollock were still defendants that stated that nonsurgical bracing remained a viable option for a week beyond the date Gullickson first saw Dr. Danoff.

Dr. Kim testified that the best time to operate on a fracture is within a month of the injury.  He opined that if he had seen Gullickson earlier, he could have avoided surgery by the use of a halo and skeletal traction.

John Sherman, M.D., orthopedic surgeon, testified for respondents.  He stated that, in his opinion, the subluxation at C6 was caused by the pedicle fractures and that the fractures occurred “many months and probably years” before the February 15, 1996 tomograms were taken.  Because the x-ray findings represented old injuries, it was Dr. Sherman’s opinion that nonsurgical bracing would have been ineffective in January 1996.  Dr. Sherman stated that he believed Gullickson suffered a contusion to his C7 nerve when he was knocked over by the wave in Mexico, but that the subluxation was “clearly” old.              

Called as a witness by respondents, Dr. Danoff testified that he believed that the subluxation and fractures he saw in the tomograms had occurred six months or more before the accident in Mexico.  He acknowledged that there is “a time during which bone healing takes place and your ability to realign the bone is much greater before any healing has taken place,” but stated that in Gullickson’s case, “healing had taken place.”  Dr. Danoff admitted that he could not rule out a new injury to a ligament or muscle as a result of the wave incident, but that the changes seen in the x-rays “were sometime in the remote past and there was nothing to suggest that there had been any new bony changes.”  Based on what Dr. Danoff observed, he agreed with Dr. Sicora’s decision not to prescribe a rigid cervical collar. 

At the conclusion of the evidence, appellants asked the court to give CIVJIG instructions 80.19, Duty of a Doctor to Refer, and 91.40, Items of Personal Damage-Aggravation.  The trial court denied appellants’ request.  The jury found Dr. Sicora negligent, but determined that his negligence was not a direct cause of Gullickson’s injuries.  With respect to damages, the jury awarded Gullickson $5,000 for medical expenses and $8,000 for past pain, disability, disfigurement, embarrassment, and emotional distress.  Gullickson’s wife was awarded $500 for her loss-of-consortium claim.  The jury found no future damages.  

Appellants filed posttrial motions challenging the jury instructions and requesting a new trial or JNOV.  The court denied the motions, holding that the evidence and arguments at trial did not support the requested instructions.  The court noted

[t]his was not a case about whether [respondent’s] conduct aggravated a pre-existing injury.  It was principally about whether [respondent’s] failure to make a timely diagnosis of a neck injury caused Clifford Gullickson to have to undergo surgery rather than a less invasive form of treatment.


In addition, the court stated that the “evidence concerning [Gullickson’s] pre-existing injury related to the issue of causation, not apportioning damages.”  The court found that the verdict and damage award were supported by the evidence.  This appeal follows.



Appellants argue that the trial court erred by refusing to instruct the jury on two issues: (1) the apportionment of damages when Gullickson had a pre-existing medical condition and (2) the duty of a doctor to refer a patient to a specialist.  

A trial court has broad discretion in determining jury instructions.  State Farm Fire & Cas. Co. v. Short, 459 N.W.2d 111, 113 (Minn. 1990).  Reviewing courts will not reverse a decision concerning instructions absent an abuse of discretion.  Alhom v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986).  If the court erred in its jury instructions, this court conducts a harmless-error analysis to determine whether the defendant is entitled to a new trial.  See State v. Mullen, 577 N.W.2d 505, 512 (Minn. 1998) (finding trial court’s erroneous inclusion, without objection from defendant, of jury instruction containing provision of law never enacted was harmless error).

A.        CIVJIG 91.40

The instruction requested by appellant, 4A Minnesota Practice, CIVJIG 91.40 (1999), states:

There is evidence that (plaintiff) had a pre-existing disability or medical condition at the time of the accident.


(Defendant) is liable only for any damages that you find to be directly caused by the accident.


If you cannot separate damages caused by the pre-existing disability or medical condition from those caused by the accident, then (defendant) is liable for all of the damages.


Generally, the plaintiff has the burden of proving damages caused by the defendant by a fair preponderance of the evidence.  Carpenter v. Nelson, 257 Minn. 424, 427, 101 N.W.2d 918, 921 (1960); Restatement (Second) of Torts § 433B(1) (1965).  CIVJIG 91.40 implies that if the damages from a pre-existing injury and the injury caused by the defendant are inseparable, the defendant is liable for all the plaintiff’s injuries. 

Recently, this court questioned the accuracy of this instruction:    

CIVJIG 91.40 is an ambitious attempt to synthesize aggravation, pre-existing disability, pre-existing medical condition, and apportionment.  The terms do not all have precise definitions, and the lack of definition contributes to making the scope of the instruction too broad.  With some rewording, the instruction may be a correct statement of the law in a case apportioning damage among two or more defendants whose combined conduct causes a plaintiff harm.  But applying the instruction to aggravation of a pre-existing medical condition to apportion damage between that pre-existing condition and an at-fault defendant not only extends Minnesota law but also conflicts with existing caselaw.


Blatz v. Allina Health Sys., 622 N.W.2d 376, 391-92 (Minn. App. 2001) (citations omitted), review denied (Minn. May 16, 2001).  We agree with the analysis in Blatz and conclude that inclusion of CIVJIG 91.40 in this case would have been an incorrect statement of the law.  The trial court did not err in refusing to give it.  

            Even if CIVJIG 91.40 were a correct statement of the law, litigants are entitled to an instruction only when they present evidence supporting their theory of the case.  Lhotka v. Larson, 307 Minn. 121, 125 n.7, 238 N.W.2d 870, 874 n.7 (1976).  The focus of the testimony in this case was on causation.  In its posttrial order, the trial court found that the evidence offered on Gullickson’s pre-existing injury related only to the issue of causation.  After reviewing the record, we agree.  The experts testified about whether Dr. Sicora was negligent in failing to diagnose Gullickson’s injury from the swimming accident.  The evidence concerned whether Dr. Sicora’s alleged failure to identify Gullickson’s injury caused his current pain and disability, not how to apportion the damages between his injuries from the 1987 accident and those attributable to Dr. Sicora’s negligence.

B.        Duty to Refer

            Appellants also contend that the trial court erred in refusing to give the instruction regarding a doctor’s duty to refer a patient to a specialist if the doctor discovers or should have discovered that a patient’s condition is beyond his or her ability or skill to treat:

A physician has a duty to refer a patient to a specialist if the physician discovers or should discover that a patient’s condition is beyond his or her ability or skill to treat with reasonable success.


If the physician does not refer the patient to a specialist, he or she is held to the same standard of care that a specialist in (name of the field) would use in similar circumstances.


4A Minnesota Practice, CIVJIG 80.19 (1999).


The evidence presented in this case was that Dr. Sicora did refer Gullickson to Dr. Danoff, a neurosurgeon.  Appellants’ theory of the case was that Dr. Sicora failed to properly read the x-rays that he ordered and to diagnose the cervical injury in time to use nonsurgical measures to address the condition.  Based on this record, the trial court did not err in concluding that CIVJIG 80.19 should not be given.

Even if failure to give the instruction was error, an erroneous jury instruction is prejudicial only if the outcome would likely have been different with a proper instruction.  Lewis v. Equitable Life Assurance Soc’y of the U.S., 389 N.W.2d 876, 885 (Minn. 1986).  Here, the jury found Dr. Sicora negligent but then determined that his negligence was not a direct cause of Gullickson’s injuries.  Had the jury been given the duty-to-refer instruction it would not have influenced the issue of causation.  Without a finding of causation, appellants’ medical-malpractice claim fails.  Thus, any error in the instructions regarding Dr. Sicora’s duty did not prejudice appellants.



            Appellants argue that the jury verdict is inconsistent and, therefore, a new trial is required.  On appeal from the denial of a motion for a new trial, “the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.”  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992).  A jury’s answers on a special-verdict form will be disturbed only if they cannot be reconciled under any theory.  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 198 (Minn. 1986) (holding a jury verdict will be sustained on any reasonable theory based on evidence); Nihart v. Kruger, 291 Minn. 273, 276, 190 N.W.2d 776, 778 (1971) (holding reviewing court need only examine record to determine whether a jury’s verdict is consistent on any theory).

Appellant argues that the jury’s finding of negligence but not causation results in an inconsistent verdict.  We disagree.  The jury concluded that Dr. Sicora negligently treated Gullickson, but that his negligence did not cause Gullickson’s injuries.  The issue of the “age” of Gullickson’s cervical injuries was hotly contested throughout trial.  Respondents’ experts testified that the injuries predated the accident in Mexico by months if not years.  The jury also heard evidence about Gullickson’s 1987 accident and surgery; his inability to work since 1991; his longstanding inability to sit or stand for more than 30 minutes as a result of the 1987 accident; and his on-going treatment for back pain from 1991-1995.  Thus, the jury could have reasonably believed respondents’ experts and found that Dr. Sicora breached his duty, but that, despite this negligence, Gullickson’s pain and disability stemmed from his pre-existing condition and not any error on Dr. Sicora’s part. 

Appellants also argue that the nominal damage award indicates that the jury was improperly “attempt[ing] to keep the damages artificially low.”  Again, we note that the jury found no causation.  The Minnesota Supreme Court has held that  

where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict perverse.


Wefel v. Norman, 296 Minn. 506, 508, 207 N.W.2d 340, 341 (1973) (quotation omitted).  Here, the jury was not informed of the effect of its answers and was told to answer all of the damages questions, regardless of its conclusion on negligence or causation.  See Rosenthal v. Kolars, 304 Minn. 378, 383, 231 N.W.2d 285, 288 (1975) (jury must answer negligence and damage questions without regard to one another and must determine what amount of damages would fairly and adequately compensate plaintiff without regard to any of the other special-verdict answers).  Because there is sufficient evidence to support the jury’s decision on causation, the claim of “inadequate damages” does not demonstrate prejudice to appellants.       



Finally, appellants argue that the trial court erred in not awarding a new trial because the verdict was not supported by the evidence.

It is within the trial court’s discretion to grant a new trial, and a reviewing court will not disturb the trial court’s decision in the absence of a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990); LaValle v. Aqualand Pool Co., 257 N.W.2d 324, 329 (Minn. 1977) (trial court in better position than appellate court to determine whether verdict is contrary to preponderance of evidence).

As previously stated, the record contains significant evidence to support the jury’s finding of no causation.  Drs. Danoff and Sherman testified that Gullickson’s neck injury predated the accident in Mexico and that, because the injury was “old,” any potential negligence of Dr. Sicora in not diagnosing the injury was of no consequence to Gullickson’s recovery.  Even appellants’ expert, Dr. Goodman, could not rule out an “old” injury from the x-rays.  Although Drs. Goodman and Kim testified that they believed non-surgical options would have been available if Dr. Sicora had correctly diagnosed Gullickson on his first visit, it was the jury’s task to determine credibility.  See Krueger v. Knutson, 261 Minn. 144, 159, 111 N.W.2d 526, 536 (1961) (concluding that the jury must determine the weight to give to medical expert opinions).  The jury was presented with conflicting expert testimony about causation and believed respondents’ witnesses.  St. Paul Fire & Marine Ins. Co. v. Honeywell, Inc., 611 N.W.2d 51, 59 (Minn. App. 2000) (“It is within the province of the jury to weigh conflicting testimony and determine witness credibility.” (citation omitted)).  Because the evidence in the record reasonably supports the jury verdict, the trial court did not err in denying the posttrial motions.