Kaplan

Larry Kaplan appeals from the trial court’s judgment dismissing his medical malpractice complaint against Adam N. Mamelak, M.D. We reverse and remand for further proceedings.

FACTS AND PROCEEDINGS

Appellant Larry Kaplan suffered pain from a herniated disk in his spine. The disk, identified as T8-9, lay between the eighth and ninth thoracic (chest) vertebrae of his spinal column. Kaplan sought treatment from respondent neurosurgeon Adam Mamelak, M.D. In July 2002, respondent operated on Kaplan’s spine, intending to excise the herniated portion of disk T8-9 to relieve Kaplan’s pain. During surgery, respondent mistook the disks causing appellant’s pain and their place on Kaplan’s spinal column. He thus operated on the disks between the sixth and seventh (T6-7) and seventh and eighth thoracic vertebrae (T7-8), instead of the targeted—and correct—T8-9.

After recovering from surgery, appellant continued to suffer pain. Respondent thus ordered an MRI of appellant’s spine. The MRI showed the protrusion causing appellant’s pain from the herniation at T8-9 remained, because respondent had operated on the wrong disks.

Respondent met with appellant on September 11, 2002, to…