Bolden v. Bd. of Regents of the Univ. of Neb.

Citation30 Neb.App. 767,973 N.W.2d 373
Decision Date29 March 2022
Docket NumberA-21-245.
Parties Nicole BOLDEN, individually and as Special Administrator of the Estate of NiMarah Robinson, and Marcel Robinson, appellants, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA, doing business as University of Nebraska Medical Center, and Calida Gardner, C.N.M., M.S.N. appellees.
CourtCourt of Appeals of Nebraska

Corey L. Stull, Lincoln, and Nolan J. Niehus, Senior Certified Law Student, of Atwood, Holsten, Brown, Deaver, Spier & Israel Law Firm, P.C., L.L.O., for appellants.

David D. Ernst and Kellie Chesire Olson, of Pansing, Hogan, Ernst & Bachman, L.L.P., Omaha, for appellee Board of Regents.

Robert A. Mooney, Omaha, Emily E. Palmiscno, and John A. McWilliams, Omaha, of Sodoro, Mooney & Lenaghan, L.L.C., for appellee Calida Gardner.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Nicole Bolden, individually and as special administrator of the estate of NiMarah Robinson, and Marcel Robinson (collectively Appellants) appeal the Douglas County District Court's order denying their motion for new trial or to reconsider the court's granting of summary judgment in favor of Calida Gardner, C.N.M., M.S.N.; granting the motion to dismiss filed by the Board of Regents of the University of Nebraska, doing business as University of Nebraska Medical Center (UNMC); and in overruling their motion to amend their complaint. For the reasons stated herein, we affirm in part, and in part reverse and remand for further proceedings.

II. STATEMENT OF FACTS
1. ORIGINAL AND AMENDED COMPLAINT

Appellants filed a medical malpractice action against Gardner and UNMC alleging that Gardner, in her capacity as an employee or agent of UNMC, and UNMC negligently failed to provide proper medical care to Bolden and her unborn child, NiMarah, which resulted in NiMarah's death and damages to Bolden. Appellants specifically alleged that on October 3, 2016, Bolden sought prenatal care at UNMC and was initially evaluated by Gardner, who represented that she was a certified midwife. Thereafter, Bolden alleged Gardner continued to provide ongoing care for Bolden at UNMC. On March 12, 2017, in Bolden's third trimester, she began experiencing high blood pressure

and high glucose levels. Bolden asserted that she was not informed that she presented with these symptoms by either Gardner or other medical staff. During a March 30 prenatal visit, Gardner indicated to Bolden that Bolden's baby was larger than expected. At her April 11 prenatal visit, Bolden was informed that she had gained 14 pounds in 2 weeks, had edema in her legs, and had high blood pressure. On April 23, when Bolden went to the UNMC emergency room where she expressed concern that her baby was not moving, she was admitted with high blood pressure

, headaches, pain and swelling in her legs, and protein in her urine. Although doctors diagnosed Bolden with preeclampsia, they released her the following day with instructions to return on April 28 for labor induction. However, on April 27, Bolden returned to the emergency room with extremely high blood pressure and lack of fetal movement. At that time, doctors informed Bolden that her baby suffered an intrauterine fetal death. Bolden underwent an emergency cesarean section to deliver her baby.

In sum, Appellants alleged in their amended complaint that Gardner and UNMC failed to properly document, record, assess, diagnose, and treat Bolden and NiMarah; that their conduct fell below the requisite standard of care; and that their negligence was the proximate cause of their injuries and damages. Appellants then allege they filed a tort claim pursuant to the State Tort Claims Act (STCA) directed at Gardner and UNMC on February 6, 2019. Appellants allege the State Claims Board (Board) failed to dispose of the claim within 6 months; they withdrew the claim on March 13, 2020; and they filed their complaint on March 31, which complaint was amended that same day.

2. GARDNER'S MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT AND APPELLANTSMOTION TO AMEND

On May 5, 2020, Gardner filed a motion to dismiss or, in the alternative, a motion for summary judgment contending that she was not an employee of UNMC, but instead was an employee of Nebraska Medicine; that she was improperly served; and that the pleadings showed that Bolden's complaint was time barred because the alleged malpractice occurred over 3 years prior to the date of the complaint. The following month, Appellants filed a motion to amend their complaint for a second time. In the motion and proposed second amended complaint, Appellants asserted and averred that Gardner actively misrepresented her employer and that Appellants had no way of learning Gardner's actual employer. Specifically, Appellants averred that while under the care of Gardner and UNMC, Gardner was wearing a UNMC badge and UNMC scrubs and appeared to Bolden to be a UNMC employee. Appellants alleged Gardner provided Bolden with a UNMC brochure containing Gardner's picture, stated that she was "part of UNMC," spoke with Bolden about how midwives at the facility were legitimate medical providers, and stated that receiving prenatal care from midwives was a better option than receiving medical care from doctors. Bolden asserted that Gardner was listed as an instructor on the UNMC website, that Gardner was listed in UNMC's staff directory, and that Bolden had no way of knowing that Gardner was employed anywhere other than UNMC.

Additionally, Appellants averred that after filing the claim under the STCA, Appellantscounsel checked on the claim's status on five different occasions; each time, counsel received a response that the claim was still under investigation or that there was no recommendation. Appellants’ proposed second amended complaint alleged that they did not withdraw their claim on August 13, 2019, as permitted under the STCA, because they relied upon representations by the State that the claim was still under investigation. After receiving no disposition of the claim, on March 13, 2020, Appellants withdrew their STCA claim and filed a complaint against Gardner and UNMC on March 31, which complaint was amended that same day. Appellants served Gardner via certified mail using Gardner's address as listed in the UNMC staff directory. The certified mail return receipt showed that the complaint was signed on April 4 by an agent, who was the mail carrier for UNMC.

In connection with their motion to amend, Appellants sought to add Nebraska Medicine as a party and add three additional UNMC doctors as parties. Appellants argued that the additional information and parties sought to be included in the proposed second amended complaint arose out of the same transaction and occurrence of Gardner's negligence and that, had Gardner not misrepresented her employer information, Appellants would have timely sued Nebraska Medicine. Further, Appellants asserted that Nebraska Medicine received notice of the claim against Gardner and UNMC and that Nebraska Medicine would not be prejudiced by being brought into the action.

(a) Evidence in Support of Summary Judgment and Motion to Amend

The court heard the motions in mid-June 2020. The court took judicial notice of the court file, including the complaint and the return of service concerning Gardner, and accepted evidence on the condition that it would not be considered unless the motion was converted to summary judgment. Gardner offered into evidence affidavits by Gardner and David Poppert, a risk manager at UNMC. In response, Appellants objected that Gardner did not properly submit her motion for summary judgment, since Gardner did not file an undisputed statement of facts or an index of evidence as required by Neb. Ct. R. § 6-1526 (rev. 2018) and Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020). Appellants offered into evidence an affidavit by Bolden and two affidavits by her attorney with attachments. The attachments included Appellants’ completed and signed STCA claim form and a typed statement; emails indicating the STCA claim was still under review; Gardner's employee information on UNMC's website showing Gardner was a UNMC instructor; a profile at UNMC that listed Gardner as UNMC's "new midwife faculty member"; the signed certified return receipt for service on Gardner; and the UNMC staff directory.

In connection with Appellantsmotion to amend, the court again took judicial notice of the court file; evidence previously received, including the exhibits offered by Appellants; and the motion for leave to amend with the attached proposed second amended complaint. The court also received and considered, over Appellants’ objection, Gardner and UNMC's exhibit consisting of a supplemental affidavit by Poppert, including the following attachments: a photograph of Gardner's employee badge and copies of Bolden's medical bills from Nebraska Medicine.

(b) District Court Order

In August 2020, the court granted summary judgment in favor of Gardner due to Appellants’ claim being barred by the statute of limitations and improper service. The court found that Gardner was an employee of Nebraska Medicine, not UNMC; Appellants’ attempt to serve Gardner at UNMC was improper; there was no genuine issue of material fact as to Gardner's employment; Appellants’ claim was barred by the statute of limitations; and no amendment could be made to the complaint to cure the statute of limitations bar to the action. The court denied Appellantsmotion to amend, finding that the proposed amendment to add additional parties would be futile due to the expiration of the statute of limitations.

3. BOLDEN'S MOTION FOR NEW TRIAL OR MOTION TO RECONSIDER AND UNMC'S MOTION TO DISMISS

Appellants timely filed a motion for new trial or to reconsider, and thereafter, UNMC filed a motion to dismiss. At the hearing on these motions, Appellants argued that summary judgment was improper because Gardner had not met her burden of proof or followed proper...

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