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January 19, 1990.

DONNIE D. SLEDD, Appellant,
WILLIAM O. REED, JR., M.D., Appellee.

The opinion of the court was delivered by

Donnie D. Sledd, the plaintiff in a medical malpractice action, appeals from a jury verdict finding no negligence on the part of the defendant, Dr. William O. Reed, Jr. The single issue on appeal is whether certain statements made by defense counsel in closing argument constitute reversible error.

The underlying facts are not in dispute. On November 13, 1984, the plaintiff fell from a tree and severely injured his back. He was taken to the emergency room at Providence-St. Margaret Hospital, Kansas City, Kansas. The emergency room doctor contacted Dr. Robert Beatty, a neurosurgeon, who examined plaintiff's x-rays and concluded plaintiff incurred a compression or burst fracture of the first lumbar vertebrae. Dr. Beatty also conducted a neurological and physical examination and found plaintiff had normal sensation in his lower extremities, normal muscle strength, and no sign of spinal cord injury reflected in his deep tendon reflexes. In his progress reports of November 14-19, Dr. Beatty noted plaintiff had no neurological deficit, observing only a tingling in the left instep on November 15. Plaintiff was neurologically

[246 Kan. 113]

      normal in his lower extremities and no neurological changes occurred during this time.

  On November 15, 1984, Dr. Beatty contacted the defendant, Dr. Reed, an orthopedic specialist, for an opinion on whether plaintiff's fracture was unstable and required surgery. On November 16 or 17, Dr. Reed informed Dr. Beatty that plaintiff's fracture was unstable and recommended surgery. Dr. Beatty discontinued seeing plaintiff and turned him over to Dr. Reed's care for surgery. On November 23, 1984, Dr. Reed performed surgery on the plaintiff consisting of an anterior decompression of the spine and the application of a Dunn fixation apparatus or device. Shortly after surgery, while plaintiff was still in the recovery room, it was discovered that the plaintiff was suffering a significant neurological deficit, including weakness and loss of sensation in the lower extremities and an inability to move his legs normally.

  On November 27, 1989, Dr. Reed asked Dr. Beatty to examine plaintiff. After doing so, Dr. Beatty immediately recommended a myelogram, which revealed an obstruction of the spinal cord. Dr. Beatty performed a laminectomy upon the plaintiff and removed a blood clot which was pressing upon the spinal cord. However, the plaintiff still suffers from disability to his legs.

  Dr. Reed's treatment of plaintiff from the time he recommended surgery until Dr. Beatty performed the myelogram and laminectomy was the subject of this malpractice suit. Plaintiff claimed Dr. Reed was negligent in two respects: "In choosing to carry out an `anterior approach with decompression and Dunn fixation apparatus, or device' for injury without neurological deficit when other safer options were available"; and "[i]n failing to properly monitor plaintiff's neurological deficits postoperatively and take timely appropriate treatment measures."

  As in most malpractice cases, there was expert testimony on behalf of both parties. Dr. Fries, plaintiff's expert, testified that Dr. Reed deviated from acceptable medical practice by utilizing an anterior surgical approach, from the front and side of the body, to the damaged spinal area rather than a posterior approach from the back. Defendant's expert, Dr. Dunn, testified that, while he personally preferred the posterior approach in cases such as plaintiff's, the anterior approach was an acceptable procedure that did not deviate from acceptable medical standards. Dr. Reed testified

[246 Kan. 114]

      at length describing his reasons for electing the anterior approach to the surgery.

  Dr. Fries also found a deviation from acceptable medical practice in the delay between the time of the operation and the decision to do the myelogram to ascertain the cause of the neurological deficit. He was of the opinion that the delay in discovering and removing the blood clot caused permanent injury to the spinal column, resulting in permanent damage to the lower extremities. On the other hand, the defendant's expert found the delay to be proper medical procedure.

  The jury, after hearing all the expert testimony and other evidence presented during a five-day trial, returned a verdict finding no negligence on the part of the defendant, Dr. Reed. This appeal followed.

  Plaintiff asserts four issues on appeal, which all overlap and intertwine, being essentially based upon certain statements made by defense counsel during closing argument and the trial court's rulings on objections to them. The controlling issues are whether the statements were improper argument and, if so, whether reversible error occurred. The statements deemed objectionable by the plaintiff occurred during the summation of defense counsel's argument. The record of defense counsel's closing argument reads in pertinent part:
"One last comment on some of the evidence you heard, and that is, is you've heard that only a few orthopedic surgeons in each community tackle these kinds of complicated spine cases. Doctor Reed in 1984 was the only one at either one of our two local hospitals that did so, and that remains true today. This case I'm sure points out to you the reason why only a few do and only a few answer those kinds of calls.
"MR. KANCEL: Objection, Your Honor. Unfair argument.
"MR. McCAMISH: What?
"THE COURT: Overruled. It is closing argument.
  "MR. McCAMISH: Okay. And that that reason is, is that these are terrible injuries, these spine injuries. They have many, many, many less than favorable outcomes. They have many, many, as you've heard everyone describe potentials for complications. If we hold Doctor Reed responsible and other doctors ...

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