Lauer v. Golden Living Ctr. - Hartington

• Decision Date: 18 August 2020
• Docket Number: No. A-19-181.,A-19-181.
• Citation: 947 N.W.2d 883,28 Neb.App. 729
• Parties: Betty Lou LAUER, appellant, v. GOLDEN LIVING CENTER - HARTINGTON, appellee.
• Court: Nebraska Court of Appeals

28 Neb.App. 729

947 N.W.2d 883

Betty Lou LAUER, appellant,

v.GOLDEN LIVING CENTER - HARTINGTON, appellee.

No. A-19-181.

Court of Appeals of Nebraska.

Filed August 18, 2020.

Christopher P. Welsh, of Welsh & Welsh, P.C., L.L.O., Omaha, for appellant.

Charles E. Wilbrand, Jeanelle R. Lust, Lincoln, and Sydney C. Aase, of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., for appellee.

Pirtle, Riedmann, and Welch, Judges.

Pirtle, Judge.

INTRODUCTION

Betty Lou Lauer appeals from an order entered by the district court for Cedar County granting summary judgment in favor of Golden Living Center - Hartington (GL-Hartington). We conclude the district court erred in granting summary judgment in favor of GL-Hartington, and we reverse the court's order and remand the cause for further proceedings.

BACKGROUND

Lauer had knee replacement surgery on June 29, 2015. Following the surgery, Lauer was transferred on July 2 to GL-Hartington, a skilled nursing facility in Hartington, Nebraska, where she remained until July 5. On July 3, Lauer's family informed the GL-Hartington nursing staff that Lauer had increased confusion and was not her normal self. The GL-Hartington nursing staff sent Lauer's treating physician a fax regarding Lauer's cognition. On July 4, the GL-Hartington nursing staff again contacted Lauer's doctor with concerns about a bowel movement. The doctor "prescribed Milk of Magnesia and Dulcolax

." On July 5, the GL-Hartington nursing staff noted further changes in Lauer's mental status and again notified the doctor. The doctor then called the GL-Hartington facility and ordered Lauer transferred to a hospital in Yankton, South Dakota. Lauer was admitted to the intensive care unit for treatment of severe hyponatremia, hypokalemia, hypochloremia, both metabolic and respiratory alkalosis, anemia, and metabolic encephalopathy. Lauer remained in the hospital for 2 weeks.

On January 4, 2017, Lauer filed a complaint against GL-Hartington, alleging that it was negligent in her treatment and care and that it did not use ordinary care under the circumstances. The complaint further alleged that as a direct and proximate result of the negligence of GL-Hartington, Lauer was seriously and permanently injured.

GL-Hartington filed its answer to the petition on March 15, 2017. On May 30, the matter was transferred from the district court for Douglas County to the district court for Cedar County. On August 22, GL-Hartington filed a motion for summary judgment. At the time the motion for summary judgment was filed, discovery had not yet begun in earnest. No progression order had yet been filed nor had experts yet been designated. The summary judgment was argued on December 18. GL-Hartington offered two exhibits: an affidavit of Amy Dickes, the GL-Hartington director of nursing and interim executive director, with attached medical records, and the affidavit of GL-Hartington's attorney, with the attached responses of Lauer to GL-Hartington's requests for admission. Both exhibits were received without objection.

During argument on the motion for summary judgment, counsel for Lauer made clear to the court that of the five specific acts of negligence alleged in her complaint, Lauer was proceeding only on her allegation that GL-Hartington failed to use ordinary care under the circumstances in the treatment of Lauer prior to her transfer to the hospital in Yankton and that the facility failed to properly instruct and train its employees. In support of her position, Lauer offered an affidavit from Sheryl Deaconson, a certified legal nurse consultant and administrative nursing supervisor licensed in Minnesota, Florida, and California. Deaconson identified specific instances of GL-Hartington's failure to "adhere to the acceptable standards of care" and concluded those failures "were the direct and proximate cause of ... Lauer's damages." The court admitted Deaconson's affidavit with the exception of a portion of paragraph 10, because the court did not believe nurses are qualified to offer direct and proximate causation opinions. Following additional briefing, the matter was ripe for decision on January 16, 2018.

Nearly a calendar year later, the district court granted GL-Hartington's motion for summary judgment on January 10, 2019. Lauer then filed a motion to alter or amend the judgment, which was denied on February 14. No discovery or any other trial readiness efforts were made between August 2017 and January 2019. Lauer's notice of appeal was filed February 20, 2019.

ASSIGNMENTS OF ERROR

Lauer assigns three errors: (1) The district court erred as a matter of law in holding her legal nursing consultant expert did not state the applicable standard of care in her affidavit, (2) the court improperly decided a factual issue instead of determining whether any issues of material fact existed, and (3) the court improperly placed the burden on Lauer to produce evidence that there was a genuine issue of material fact in dispute as to proximate cause.

STANDARD OF REVIEW

Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Thone v. Regional West Med. Ctr. , 275 Neb. 238, 745 N.W.2d 898 (2008).

A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming the evidence went uncontested at trial, would entitle the party to a favorable verdict. Id. If the moving party makes such a case, the burden then shifts to the nonmoving party to produce admissible contradictory evidence which raises a genuine issue of material fact. If it cannot, summary judgment should be granted. Id.

In reviewing a summary judgment, we view the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. Id. In conducting our review, we are mindful of the fact that on questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. Id.

ANALYSIS

Medical malpractice or professional negligence means that a health care provider, in rendering professional services,

failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities. In determining what constitutes reasonable and ordinary care, skill, and diligence on the part of a health care provider in a particular community, the test shall be that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.

Neb. Rev. Stat. § 44-2810 (Reissue 2010). A nursing home, a skilled nursing facility, and a rehabilitation hospital are all considered "health care provider[s]" under Nebraska law. See Neb. Reb. Stat. § 44-2803 (Reissue 2010). GL-Hartington is also considered a hospital under Nebraska law, because it provides nursing care on an inpatient basis for a period of more than 24 consecutive hours for persons receiving convalescent care. See Neb. Rev. Stat. § 71-419 (Reissue 2018).

To establish a prima facie case of medical malpractice, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff's harm. Hemsley v. Langdon , 299 Neb. 464, 909 N.W.2d 59 (2018).

Standard of Care.

Lauer first assigns that the district court erred as a matter of law in finding that her expert witness did not state the applicable standard of care in her affidavit. To establish the customary standard of care in a particular case, expert testimony by a qualified medical professional is normally required. Id. Often, such testimony is premised on the expert's personal knowledge of, and familiarity with, the customary practice among medical professionals in the same or similar locality under like circumstances. Id.

GL-Hartington, as the party moving for summary judgment, offered the affidavit of Dickes, the nursing director at the facility, to show that it met the standard of care. Dickes is a registered nurse, having received her license in 2008. Dickes states all the nurses, medication assistants, and nursing ...