Bittner v. Miller

• Decision Date: 14 August 1987
• Docket Number: No. 85-601,85-601
• Citation: 226 Neb. 206,410 N.W.2d 478
• Court: Nebraska Supreme Court
• Parties: Janet BITTNER and Duane Bittner, Appellants, v. Otis W. MILLER, M.D., Appellee.

Page 478

410 N.W.2d 478

226 Neb. 206

Janet BITTNER and Duane Bittner, Appellants, v. Otis W. MILLER, M.D., Appellee.

No. 85-601.

Supreme Court of Nebraska.

Aug. 14, 1987.

Syllabus by the Court

1. Pleadings: Appeal and Error. A request to amend pleadings is addressed to the sound discretion of the trial court; absent an abuse of that discretion, the trial court's decision will be affirmed.

2. Pleadings: Proof. At certain stages of a proceeding a pleading may not be amended so as to change the issues and quantum of proof as to any issue.

3. Pleadings: Statutes. The statute concerning amendments should be liberally construed and amendments permitted where they are proposed at an opportune time and will be in the furtherance of justice.

4. Trial: Appeal and Error. An abuse of discretion exists when a ruling of the trial court is untenable such as to deprive a party of a substantial right and deny that party a just result.

5. Venue: Appeal and Error. The Nebraska Supreme Court will not disturb the ruling of the trial court on a motion to change venue in a civil action unless an abuse of discretion is shown.

6. Juror Qualifications. A party who fails to challenge prospective jurors for disqualification and passes them for cause waives any objection to their selection as jurors.

7. Juror Qualifications: Physician and Patient: Medical Malpractice. A past or present patient of a physician defending a malpractice action is not, by that reason alone, disqualified from jury service and may serve when the patient-physician relationship will not interfere with impartial assessment of the evidence and voir dire examination fails to demonstrate any factual basis for rejecting a protestation of neutrality.

8. Actions: Negligence: Damages. Negligence is actionable only when it results in damages.

Debra R. Nickels and Robert V. Roach of Welsh, Sibbernsen & Roach, Omaha, for appellants.

Richard E. Gee, Grand Island, for appellee.

BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

CAPORALE, Justice.

This is a medical malpractice case in which the plaintiffs-appellants, Janet and Duane Bittner, wife and husband, allege that the defendant-appellee, Dr. Otis W. Miller, negligently performed a surgical procedure in that he failed to properly tie Mrs. Bittner's fallopian tubes, thus permitting them to bleed after the incision was closed, and in that during the course of the procedure, he left a surgical sponge in Mrs. Bittner's body. The Bittners also allege that as a proximate result of that negligence Mrs. Bittner suffered extreme shock and required blood transfusions and further surgery, as the result of all of which both she and Mr. Bittner sustained damages. The Bittners appeal from the judgment of dismissal entered pursuant to the jury's verdict and assign as error the trial court's failures to (1) permit them to amend their petition and (2) grant them a change of venue. We reverse and remand for a new trial.

The Bittners' motion to change venue was based on the claims that the smallness of the community, coupled with Dr. Miller's prominent standing in it, the paucity of physicians in the community, the fact that a great number of the jury panel were past or present patients of Dr. Miller, and the fact that a former mistrial of the case had been reported in the local press, established that a fair and impartial jury could not be selected for a trial at Ord in Valley County.

The Bittners "provisionally" passed for cause the 40 members of the jury panel remaining from the 90 originally summoned, "subject to [their] earlier discussions." The discussions referred to, however, are not preserved in the record. In any event, the jury as ultimately empaneled contained nine persons who were past or present patients of Dr. Miller, each of whom had said that such relationship would not interfere with his or her duty to impartially decide the case. The Bittners exercised their six peremptory challenges so as to remove from the jury's composition two past patients of Dr. Miller, one present patient, one who was slightly acquainted with Dr. Miller, one who considered Dr. Miller a friend, and one who had no relationship with Dr. Miller.

The evidence established that on August 13, 1981, Dr. Miller, a physician engaged in family practice at Ord, delivered the Bittners' fourth child at the Valley County Hospital. The next morning Dr. Miller performed sterilization surgery on Mrs. Bittner. Later that afternoon Mrs. Bittner's blood pressure dropped, and she went into a deep and severe shock. To treat the shock she was given at least three units of blood, administered a drug which temporarily raises the blood pressure, and placed on shock blocks, which elevate the body's extremities so that less blood will travel to them and more blood will reach the heart and other vital organs. Mrs. Bittner's condition stabilized later that evening so that, in Dr. Miller's opinion, surgery to determine the cause of the complications was not necessary.

The next day, Mrs. Bittner felt ill, had fetid breath, and produced no bowel sounds. Dr. Miller diagnosed a paralytic ileus, that is, a paralysis of the intestinal tract. Dr. Miller's treatment of the ileus was unsuccessful, and 2 days later he ordered an x ray. The x ray revealed an abnormally small amount of bowel gas, the presence of fluid, almost certainly blood, and the presence of a surgical sponge which had to have been inserted during the surgery which Dr. Miller had performed, as Mrs. Bittner had not undergone any prior surgeries. Dr. Miller failed to note the presence of the sponge when he examined the x rays, but he nonetheless recommended additional surgery to treat the ileus. Mrs. Bittner's family requested that a specialist be called in for that purpose.

The specialist operated and found bleeding at the site of the earlier surgery, removed the blood which had accumulated, stopped the bleeding, and retrieved the surgical sponge which had been left behind. The specialist told the family Mrs. Bittner's problems were caused by "a bleeder [which had been] left open." Mrs. Bittner then improved and was ultimately discharged from the hospital.

The Bittners' expert witness testified that in his opinion Dr. Miller rendered "sub-standard care post-operatively" (that is, following the sterilization surgery) and that the surgical sponge should have been "removed by somebody." It was his opinion, however, that leaving the sponge in Mrs. Bittner was not "integral to [her] problems." Dr. Miller's expert witness was also of the opinion that leaving the sponge behind did not cause Mrs. Bittner any injury.

The Bittners' expert opined that Mrs. Bittner's complications were caused by bleeding at the site of the sterilization surgery performed by Dr. Miller. Again, Dr. Miller's expert shared this opinion. However, no witness testified that the bleeding resulted from Dr. Miller's failure to exercise the generally accepted and recognized standard of care or skill in Ord and similar communities.

When the Bittners' expert was asked whether Dr. Miller's management of the shock Mrs. Bittner experienced following the sterilization surgery was appropriate under the circumstances, Dr. Miller objected. He did so on the grounds that "the pleadings say [Dr. Miller] improperly ligated the tube and there is [sic] not pleadings here calling for [alleging] his improper treatment of shock and the question is not relevant," and also because the issue was a "complete and severe surprise" to Dr. Miller. The trial court sustained Dr. Miller's objection, and the Bittners thereupon requested leave to amend their petition by adding the claimed improper management of the shock as an independent and additional specification of negligence. The trial court denied the request on the ground the proposed amendment constituted a substantial change of the Bittners' prior claims. However, the trial court also observed that the "claim is probably included in the present pleadings in the form that you have it.... [T]he jury could very well find either way with the pleadings you presently have."

In spite of the denial of leave to amend the petition, Dr. Miller's expert was permitted to testify on direct examination, over the Bittners' objection, that the quality of medical care Dr. Miller rendered to Mrs. Bittner had been "excellent," including his management of the shock.

At the close of all the evidence, the Bittners moved for a directed verdict on the issue of liability. The trial court overruled the motion and submitted to the jury the issues of whether Dr. Miller negligently tied Mrs. Bittner's fallopian tubes and left a sponge in her and the amount of damages resulting therefrom. The jury, by a vote of 10 to 2, returned a verdict in favor of Dr. Miller. One of the two dissenting jurors had been a patient of Dr. Miller over 20 years earlier; the other dissenting juror did not previously know Dr. Miller.

We begin our analysis of the Bittners' first assignment of error, that the trial court erred in overruling their motion to add mismanagement of Mrs. Bittner's shock as an additional specific act of...