Curran v. Buser
| Decision Date | 31 March 2006 |
| Docket Number | No. S-04-1303.,S-04-1303. |
| Citation | 271 Neb. 562,711 N.W.2d 562 |
| Parties | Matthew CURRAN and Emily Curran, husband and wife, appellants, v. Kerrey B. BUSER, appellee. |
| Court | Nebraska Supreme Court |
E. Terry Sibbernsen and Andrew D. Sibbernsen, of Sibbernsen & Strigenz, P.C., Omaha, for appellants.
Joseph S. Daly and Michael G. Monday, of Sodoro, Daly & Sodoro, P.C., Omaha, for appellee.
Appellants, Matthew Curran and Emily Curran, sued Matthew's surgeon, appellee Kerrey B. Buser, for medical malpractice, because of complications arising after Buser removed Matthew's gallbladder. Before Matthew's surgery, the Department of Health and Human Services Regulation and Licensure disciplined Buser for "unprofessional conduct" and restricted his surgical privileges for 1 year. Nine days after the year had passed, Buser operated on Matthew. The Currans sued Buser, alleging both negligence and lack of informed consent. The Currans wanted to introduce evidence of Buser's disciplinary history. Buser filed a motion in limine, prohibiting mention of his disciplinary issues, which the trial court granted. The jury found for Buser on the negligence issue, and the Currans appeal only the court's ruling on the motion in limine.
The Currans ask us to apply a different standard of care to informed consent cases involving a doctor's disciplinary history. Because the Legislature adopted the professional theory as governing the standard of care in all informed consent cases, we affirm the trial court's decision.
In February 2001, after suffering abdominal pains, Matthew sought assistance from general practitioner Gregory Kloch. After an ultrasound revealed abnormalities in Matthew's gallbladder, Kloch referred Matthew to Buser. On February 13, Buser diagnosed Matthew as having an inflamed gallbladder. Buser told Matthew he needed to remove the gallbladder as soon as possible, using a procedure called laparoscopic cholecystectomy. Later on that date, Buser performed the surgery.
After the surgery, Matthew experienced complications, and Buser performed another surgery on him 6 days later. Buser discovered that a suture from the earlier surgery had come loose, so he inserted a "T-tube." When Matthew complained of bile drainage at the site of the "T-tube," Kloch recommended that Matthew go to a hospital in Omaha, Nebraska, for further treatment. While there, Matthew had numerous corrective surgeries and experienced prolonged pain, fatigue, nausea, and depression, although these conditions have gradually improved.
After the surgery, the Currans sued Buser for negligence. During discovery, the Currans obtained photocopies of the Department of Health and Human Services Regulation and Licensure disciplinary order that restricted Buser's surgical privileges. The Currans alleged that Buser negligently performed the surgeries and failed to obtain informed consent.
Before trial, Buser moved in limine to prevent the Currans from mentioning the disciplinary action. Buser claimed that the disciplinary proceedings were irrelevant and that any probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
On the motion in limine, the court admitted the following evidence: The day of Matthew's first surgery, Buser sent a letter to Kloch, stating: "The patient is aware of the [State Board of Health] issue and declines referral to another surgeon." In Buser's deposition, he explained the disclosure as follows:
A. You know, I don't know if I went into the details of the exact restrictions of [the disciplinary order]. What I more than likely told him was that I was the doctor that was accused of being a bad doctor in the newspapers and was sanctioned by the medical board.
The other thing that I said was that if any of that bothers you or anything that you've read or heard, if you want to talk about it or if you want to go to another surgeon, that's fine, we'll be happy to arrange that.
Buser also testified in his deposition that he thought he told Matthew that the State Board of Health wanted to "pull" his license. Buser said that he believed his own standard of care required that he tell Matthew about the disciplinary action, but that he was not sure that the majority of surgeons feel obligated to do so. He said he explained to Matthew "the gist" of what he thought Matthew would want to know.
By contrast, the Currans, in their depositions, refute Buser's recollection, claiming that they learned of the disciplinary issues after the surgery and that Buser never indicated they could get a second opinion. The trial court sustained Buser's motion in limine.
At the beginning of the trial, the Currans made an offer of proof regarding Buser's disclosure of his disciplinary actions. In the offer of proof, the Currans sought to admit photocopies of disciplinary actions against Buser from both Minnesota and Nebraska. The Minnesota action restricted Buser's surgical practice, finding a "clustering of major laparoscopic complications," arising from "inappropriate" practices in the treatment of 13 different patients between 1992 and 1994. In the Nebraska disciplinary action, the chief medical officer recognized the Minnesota action and found clear and convincing evidence of "unprofessional," but not negligent, conduct in four new cases.
The court denied the offer of proof, citing Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004), as requiring expert testimony about the standard of care in informed consent cases. The court stated that the Currans' evidence could still be admitted if an expert testified that the standard of care required disclosure of disciplinary proceedings. No such expert testified, and the jury never heard the disciplinary evidence. The jury returned a verdict for Buser on the negligence issue. The Currans appeal only the trial court's order sustaining Buser's motion in limine.
The Currans assign that the trial court erred by sustaining Buser's motion in limine, disallowing them to introduce evidence of Buser's disciplinary action and his failure to inform Matthew of that action.
When reviewing a question of law, an appellate court resolves the question independently of the conclusion reached by the trial court. In re Grand Jury of Lancaster Cty., 269 Neb. 436, 693 N.W.2d 285 (2005).
[2,3] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. See In re Interest of B.R. et al., 270 Neb. 685, 708 N.W.2d 586 (2005).
[4,5] Also, because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under Neb.Rev.Stat. §§ 27-401 and 27-403 (Reissue 1995), the trial court's decision will not be reversed absent an abuse of discretion. Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692, 695 N.W.2d 665 (2005). An abuse of discretion occurs when the trial judge's reasons or rulings are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Holden v. Wal-Mart Stores, 259 Neb. 78, 608 N.W.2d 187 (2000).
The Currans do not contend that Matthew was not made aware of all the risks of the procedure. The thrust of the Currans' argument is that Buser operated on Matthew without informed consent because Buser failed to inform him of his disciplinary history. The Currans urge this court to apply the material risk theory to informed consent cases when the omitted information relates to the doctor's disciplinary history. They (1) argue that the statute embraces material risk principles; (2) in the alternative, ask us to carve out a special exception; and (3) contend that the trial court improperly excluded their evidence because it was relevant, not unduly prejudicial, and admissible for impeachment purposes.
Difference Between Professional Theory and Material Risk Theory.
Informed consent concerns a doctor's duty to inform his or her patient of the risks involved in treatment or surgery. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 32 (5th ed.1984). Although initially treated as a battery action, modern courts recognize it as a negligence action hinging on the standard of professional conduct. See id. Regarding the sufficiency of the information, we have stated:
Eccleston v. Chait, 241 Neb. 961, 967, 492 N.W.2d 860, 864 (1992) (quoting Keeton et al., supra). When determining what information a patient needs to make an informed decision, jurisdictions have generally split between two different theories: the professional theory and the material risk theory. We have explained the difference between the theories as follows:
The "professional" theory holds that the duty is measured by the standard of the...
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