Cerny v. Longley
| Decision Date | 30 May 2003 |
| Docket Number | No. S-02-633.,S-02-633. |
| Court | Nebraska Supreme Court |
| Parties | Melvin R. CERNY et al., appellants, v. Michael LONGLEY, M.D., et al., appellees. |
James D. Sherrets and Theodore R. Boecker, Jr., of Sherrets & Boecker, L.L.C., Omaha, for appellants.
Mark E. Novotny and William M. Lamson, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee Immanuel Medical Center, doing business as Alegent Health Immanuel Medical Center.
P. Shawn McCann, of Sodoro, Daly & Sodoro, and, on brief, Patrick W. Meyer Omaha, for appellees Michael Longley, M.D.; Eric Phillips, M.D.; Nebraska Spine Surgeons, P.C.; Nebraska Spine Center, L.L.C.; and Nebraska Spine Center, L.L.P.
This is an appeal from an order of the district court for Douglas County granting a motion for new trial and entering summary judgment in favor of the defendants in a civil action after the court had previously denied, in part, a motion for summary judgment filed by the defendants. We conclude that because there was no final judgment which could be the subject of a motion for new trial, the appeal must be dismissed for lack of jurisdiction and the cause remanded for further proceedings.
Melvin R. Cerny, one of the plaintiffs below, alleges in this action that various health care providers were negligent in treating him for an injury to his spine sustained in a motor vehicle accident. The named defendants included Michael Longley, M.D.; Eric Phillips, M.D.; Nebraska Spine Surgeons, P.C.; Nebraska Spine Center, L.L.C.; and Nebraska Spine Center, L.L.P. (collectively the surgeons) as well as Immanuel Medical Center, doing business as Alegent Health Immanuel Medical Center (the hospital). The operative amended petition alleged that the surgeons were negligent in various aspects of Cerny's care, including failing to obtain his informed consent to a surgical procedure performed on September 2, 2000. The amended petition also alleged that the hospital was liable for its own negligence and vicariously liable for the alleged negligence of the surgeons. Additional plaintiffs included Cerny's wife, Linda Cerny, who asserted a claim for loss of consortium, and Cerny's employer, Geotechnical Services, Inc., joined for the purpose of workers' compensation subrogation pursuant to Neb.Rev.Stat. § 48-118 (Cum.Supp.2002).
After filing separate answers in which they denied liability, the surgeons and the hospital filed separate motions for summary judgment. Both motions were heard by the court at a single hearing on March 7, 2002, during which each of the parties offered evidence. In an order dated March 28, 2002, the district court granted the motions for summary judgment as to some claims but denied the motions as to others. Specifically, the court determined that there was no evidence to rebut the surgeons' showing that they exercised reasonable care in stabilizing Cerny's spine and performing the surgery. However, the court determined that the surgeons failed to make a prima facie showing in support of their motion with respect to the informed consent allegations because the affidavits of their experts did not demonstrate a familiarity with the applicable standard of care in Omaha, Nebraska. The court therefore denied the surgeons' motion with respect to the informed consent claim. With respect to the hospital, the court determined that the plaintiffs had presented no evidence to rebut the showing that the surgeons were not agents of the hospital and determined that the hospital had no independent duty to obtain informed consent. Although the court concluded that the hospital was entitled to summary judgment with respect to those claims, it determined that the hospital had failed to make a prima facie showing that it was entitled to summary judgment on the claim that it failed to "stabilize" Cerny, and the court therefore denied the hospital's motion with respect to that issue. Thus, the court directed that the case should
On April 2 and April 4, 2002, the surgeons and the hospital filed separate motions for new trial pursuant to Neb.Rev.Stat. § 25-1142 (Cum.Supp.2002), asserting "[a]ccident or surprise, which ordinary prudence could not have guarded against," and asserting that "the decision of the Court [was] not sustained by sufficient evidence and is contrary to law." Although the surgeons' motion for new trial refers to submission of additional affidavits of their experts "outlining in more detail the fact that the standard of care for informed consent for the surgery undergone by [Cerny and] performed by the [surgeons] is the same in any locality throughout the United States," no such affidavits were filed with that motion for new trial.
A hearing on both motions for new trial was held on April 22, 2002. When the surgeons offered additional evidence, the plaintiffs objected on several grounds, including an argument that a motion for new trial under § 25-1142 was inappropriate in the procedural posture of the case. The objection was overruled, and the evidence was received. Additional evidence offered by the hospital was also received over the objection of the plaintiffs. After receiving evidence from the prior hearing which was reoffered by the plaintiffs, the court continued the hearing to May 2 in order to allow the surgeons to offer further additional evidence. The court stated that the plaintiffs would also be permitted to offer additional evidence at the continued hearing.
After making a similar finding with respect to the hospital, the court concluded, "Based on the foregoing, and the Court's findings set out in its order of March 28, 2002, the motions for summary judgment of the Defendants are granted in their entirety, and Plaintiffs' Amended Petition should be dismissed, at Plaintiffs' cost."
The plaintiffs perfected a timely appeal from this order, which appeal we moved to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995). Prior to oral argument, the appeal with respect to the claims against the hospital was dismissed by agreement of the parties pursuant to Neb. Ct. R. of Prac. 8E (rev.2000). Accordingly, we address only those issues raised on appeal with respect to the claims against the surgeons.
Although the plaintiffs assert several assignments of error, the issue upon which we base our disposition relates to their contention that the district court erred in granting the surgeons' motion for new trial.
The order which we review in this case is unusual in that it simultaneously grants the surgeons' motion for new trial and enters summary judgment in their favor. However, the only motion on behalf of the surgeons which was pending before the court at the time of the order was their motion for new trial. Accordingly, we treat the order as a ruling on that motion for the purpose of appellate review.
A motion for new trial in a civil action is governed by § 25-1142, which defines a "new trial" as a "reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee, or a trial and decision by the court." The words "trial and" were inserted before the word "decision" in the last phrase of this sentence by an amendment enacted in 2000. 2000 Neb. Laws, L.B. 921. § 5 The same legislation authorized a "motion to alter or amend a judgment" which, like a motion for new trial, must be filed no later than 10 days after the entry of the judgment and operates to terminate the running time for filing a notice of appeal. 2000 Neb. Laws, L.B. 921, §§ 7 and 15, codified at Neb.Rev.Stat. §§ 25-1329 and 25-1912(3) (Cum.Supp.2002) respectively. See Neb.Rev.Stat. § 25-1144.01 (Cum.Supp.2002).
The plaintiffs argue that a motion for new trial was procedurally improper in this case because there...
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