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Romero Lama (P) was suffering from back pain and was referred to Dr. Borras (D) a neurosurgeon. D concluded that P had a herniated disk and scheduled surgery. D neither prescribed nor enforced a regime of absolute bed rest prior to surgery but did instruct, P to enter the hospital one week before the surgery in order to clean out his lungs, as P was a heavy smoker. P was not subjected to conservative treatment. D operated, but it was not successful. D operated again five weeks later and did not order pre or post-operative antibiotics. After the second operation, there were signs that an infection had set in. P's discomfort became severe, and eventually, a diagnosis of infection was made, and medicine was given. Because the infection was labeled as Discitis, P was hospitalized for several months while treatment for the infection took its course. P sued D for malpractice. P won a verdict of $600,000. Motions for judgment as a matter of law and a new trial were rejected by the trial court. D appealed.

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