Breeden v. Anesthesia West, PC

• Decision Date: 28 February 2003
• Docket Number: No. S-01-774.,S-01-774.
• Citation: 265 Neb. 356,656 N.W.2d 913
• Parties: Michael R. BREEDEN and Carilyn Breeden, husband and wife, Appellants and Cross-Appellees, v. ANESTHESIA WEST, P.C., et al., Appellees and Cross-Appellants.
• Court: Nebraska Supreme Court

656 N.W.2d 913

265 Neb. 356

Michael R. BREEDEN and Carilyn Breeden, husband and wife, Appellants and Cross-Appellees, v. ANESTHESIA WEST, P.C., et al., Appellees and Cross-Appellants.

No. S-01-774.

Supreme Court of Nebraska.

February 28, 2003.

Daniel B. Cullan, Paul W. Madgett, and Diana J. Vogt, of Cullan & Cullan, Omaha, for appellants.

David D. Ernst and Earl G. Greene III, of Gaines, Pansing & Hogan, Omaha, for appellees Wesley K. Hubka and Janet Lemonds.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

HENDRY, C.J.

I. INTRODUCTION

Michael R. Breeden and Carilyn Breeden sued appellees Anesthesia West, P.C., and its employees Dr. Wesley K. Hubka, an anesthesiologist, and Janet Lemonds, a nurse anesthetist, for medical malpractice. (Appellees are referred to collectively herein as "Anesthesia West.") The Breedens alleged that Michael Breeden (hereinafter Breeden) suffered brain damage as a result of Dr. Hubka's and Lemonds' negligence in administering general anesthesia during Breeden's gallbladder removal surgery. The Breedens appeal a jury verdict in favor of Anesthesia West.

II. FACTUAL BACKGROUND

Breeden was admitted to Methodist Hospital in Omaha, Nebraska, on August 14, 1994, to have his gallbladder surgically removed. During the evening of August 15, Dr. Doug Rennels, an anesthesiologist, conducted a preanesthetic evaluation of Breeden. Such examination disclosed, inter alia, no evidence of "peripheral neurological deficits."

During the morning of August 16, Nurse Joyce Clark, an employee of Methodist Hospital, again evaluated Breeden's condition. As a result of this evaluation, Clark made an entry in Breeden's electronic file on Methodist Hospital's computer system that Breeden was experiencing "TINGLING OF RT LEG, RT SIDE OF BODY TO MID CHEST." The entry reflected that Clark observed the symptom at 9:50 a.m.

At approximately 10:35 a.m., Breeden was taken to the preoperation holding area in order to receive general anesthesia. There, Breeden's condition was again evaluated, this time by Dr. Hubka, after which Dr. Hubka and Lemonds administered general anesthesia to Breeden. Although, according to Dr. Hubka, there were "at least three" computers in the preoperation holding area on which the nursing notes in Breeden's electronic file could have been accessed, neither Dr. Hubka nor Lemonds accessed Breeden's electronic file to read Clark's entry prior to administering anesthesia. Breeden's anesthesia was monitored throughout the surgery by Dr. Hubka and Lemonds.

The Breedens filed a medical malpractice action against Anesthesia West, alleging that Dr. Hubka and Lemonds were negligent in administering general anesthesia and that as a result, Breeden suffered brain damage. In their operative petition, the Breedens alleged, inter alia, that Dr. Hubka and Lemonds breached their duty to "[e]nsure that [Breeden's] surgery was postponed" based on the information in Clark's note.

During two pretrial depositions, Clark gave conflicting testimony regarding the time she actually entered the note regarding Breeden's "tingling" symptom into the Methodist Hospital computer system. Clark testified in her first deposition that she entered the note at 9:50 a.m. on August 16. However, in her second deposition, Clark testified she may have entered the note later in the day, after Breeden's surgery.

Prior to trial, the district court ruled, over Anesthesia West's objection, that pursuant to Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981), Clark's "earlier deposition which indicates that the entry was made at a time on or before the day of surgery or the specific words of her own testimony will be the testimony at trial as a matter of law." Such determination was ultimately incorporated into jury instruction No. 5, which provided that "[t]he Court has determined as a matter of law that the following fact exists and you must accept it as true: Nurse Joyce Clark entered her nursing note on the computer at 9:50 a.m. on August 16, 1994."

At trial, the Breedens' expert, Dr. Richard Fields, opined that Clark's note indicating Breeden complained of "tingling" in his right side and right leg might have reflected a transient ischemic attack, or "TIA," a condition during which the brain receives insufficient oxygen. Dr. Fields opined that administering general anesthesia to a patient suffering a TIA "puts [the patient] at extreme risk of producing a permanent bad result or aggravating — extending the problems that he has."

Dr. Hubka agreed that if Breeden was suffering from a TIA prior to surgery, his anesthesia should have been postponed. Dr. Hubka asserted, however, that he acted within the prevailing standard of care by relying on Clark to verbally report to him if, in her view, the "tingling" symptom was significant. Dr. Hubka stated that "[n]urses will always call us and give us reports on significant findings that they've made." In Dr. Hubka's view, the fact that Clark did not verbally communicate to him concerns about the "tingling" symptom suggested that Breeden probably was not suffering from a TIA prior to surgery. Similarly, Anesthesia West's expert, Dr. Myrna Newland, an anesthesiologist and member of the faculty at the University of Nebraska Medical Center, opined that Dr. Hubka acted within the prevailing standard of care by relying on nurses to verbally report "significant" symptoms to him. Dr. Newland stated that in her practice, "we depend on the preoperative nurse and the nurse taking care of the patient to communicate any significant change that should be brought to our attention."

The jury returned a verdict in favor of Anesthesia West and against the Breedens. The Breedens moved for a new trial, which was overruled by the district court. The Breedens appealed. We moved the case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

III. ASSIGNMENTS OF ERROR

The Breedens assign, rephrased, that the district court erred in (1) "fail[ing] to give Instruction No. 12A [which provided] that the duties of an anesthesiologist [are] nondelegable"; (2) giving jury instruction No. 9 regarding the applicable standard of care because it "violated Due Process, misstated the law, was misleading, and was not supported by the evidence"; (3) "fail[ing] to modify Instruction 9. to correctly state the law"; (4) failing to grant the Breedens' motion for a mistrial; and (5) denying the Breedens' motion for a new trial.

IV. CROSS-APPEAL

Anesthesia West assigns on cross-appeal that the district court erred (1) "[w]hen it ruled as a matter of law that the inconsistent, nonparty witness statement made by Clark constituted changed testimony for the exigencies of trial pursuant to Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981)," and (2) "[b]y the giving of Jury Instruction No. 5 because the court gave the instruction based on its erroneous application of Momsen to the testimony of the witness Joyce Clark."

V. STANDARD OF REVIEW

Whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular case. Fu v. State, 263 Neb. 848, 643 N.W.2d 659 (2002); Sharkey v. Board of Regents, 260 Neb. 166, 615 N.W.2d 889 (2000).

To establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction. Malone v. American Bus. Info., 264 Neb. 127, 647 N.W.2d 569 (2002); Springer v. Bohling, 263 Neb. 802, 643 N.W.2d 386 (2002).

Whether the jury instructions given by a trial court are correct is a question of law. Malone, supra; Springer, supra.

When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Smith v. Fire Ins. Exch. of Los Angeles, 261 Neb. 857, 626 N.W.2d 534 (2001); Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001).

VI. ANALYSIS

1. JURY INSTRUCTION NO. 12A

The Breedens first assign that the district court erred by refusing to give the Breedens' tendered jury instruction No. 12A. Instruction No. 12A provided:

The duty to read the nursing notes from the period immediately after the Pre Anesthesia Evaluation through the period immediately before surgery is a duty owed by the anesthesiologists. It is a nondelegable duty. That means the anesthesiologist by assigning to another the duty to read such nursing notes is not relieve[d] from liability arising from the delegated duties if they are negligently performed.

Since the duty to read such nursing notes is a non-delega[ble] duty, the responsibility and ultimate liability for the proper performance of that duty cannot be delegated, although the actual performance of the task may be done by another.

To establish reversible error from a court's failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction was warranted by the evidence, and (3) the appellant was prejudiced by the court's failure to give the requested instruction. Malone, supra; Springer, supra.

(a) Correct Statement of Law and Warranted by the Evidence

Whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular case. Fu, supra; Sharkey, supra.

This court has previously held that in certain circumstances, the ultimate responsibility for the performance of duties owed by a physician to his or her patient is nondelegable. Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997); Long v. Hacker, 246 Neb. 547, 520...