Darrah v. Bryan Memorial Hosp.

• Decision Date: 09 January 1998
• Docket Number: No. S-95-1391,S-95-1391
• Citation: 571 N.W.2d 783,253 Neb. 710
• Parties: Robert J. DARRAH, Appellant, v. BRYAN MEMORIAL HOSPITAL, Appellee.
• Court: Nebraska Supreme Court

Page 783

571 N.W.2d 783

253 Neb. 710

Robert J. DARRAH, Appellant, v. BRYAN MEMORIAL HOSPITAL, Appellee.

No. S-95-1391.

Supreme Court of Nebraska.

Jan. 9, 1998.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but, rather, whether any real issue of material fact exists.

3. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.

4. Summary Judgment: Negligence. When the doctrine of res ipsa loquitur is utilized, the examination of whether there is a genuine issue of material fact must be related solely to the issues under the required elements of the doctrine. If the doctrine of res ipsa loquitur is applicable, the inference of negligence itself presents a question of material fact, and summary judgment is improper. If, however, the doctrine of res ipsa loquitur is inapplicable as a matter of law and there is no material question of fact regarding actionable negligence, summary judgment is proper.

5. Negligence: Evidence. When an instrumentality under the exclusive control and management of the alleged wrongdoer produces an occurrence which would not, in the ordinary course of things, come to pass in the absence of the negligence of the one having such management and control, the occurrence itself, in the absence of explanation by the alleged wrongdoer, affords evidence that the occurrence arose as a result of the alleged wrongdoer's negligence.

6. Negligence. The exclusive control requirement is satisfied if the injury resulted from an external force applied while the plaintiff was in the control of the defendants, even though, by subsequent explanation, some of the defendants are exonerated from the charge of negligence.

7. Negligence: Proof. Control is exclusive if it is shown that there was no possibility that a third party--not a defendant--could have caused the injury.

8. Health Care Providers: Negligence: Liability: Agents. Hospitals are generally responsible for the acts of their agents via vicarious liability and respondeat superior.

9. Malpractice: Physicians and Surgeons: Negligence: Liability. During surgery, the head surgeon has a nondelegable duty to provide health care and assumes exclusive control of the patient.

10. Malpractice: Physicians and Surgeons: Health Care Providers: Negligence: Liability. Surgeons are not liable for the failure of hospital employees to execute reasonable instructions left for the treatment of the patient.

11. Pleadings. Amendment to a petition is not a matter of right.

12. Pleadings. A decision to grant or deny an amendment to a pleading rests in the discretion of the trial court.

13. Pleadings: Summary Judgment. Absent some mitigating factor which justifies raising new issues by a party after a motion for summary judgment has been heard and submitted, denying a motion to amend pleadings is not an abuse of discretion.

14. Pleadings: Evidence. Unless evidence or testimony exists in the record indicating that a proposed claim or defense was newly discovered or that counsel was unaware of the claim or defense prior to the pending action, the proposed amendment is merely a belated effort to inject issues of material fact into a proceeding where previously the pleadings revealed none.

Denzel R. Busick, of Luebs, Leininger, Smith, Busick & Johnson, Grand Island, and Robert J. Parker, Jr., of Brock, Seiler & Parker, Hastings, for appellant.

Brett W. Berg and, on brief, Kenneth C. Stephan, of Knudsen, Berkheimer, Richardson, Endacott & Routh, Lincoln, for appellee.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and McCORMACK, JJ., and FAHRNBRUCH, J., Retired.

WHITE, Chief Justice.

This is a medical malpractice action brought by Robert J. Darrah against Bryan Memorial Hospital (BMH) for injuries he allegedly sustained while hospitalized at BMH. The district court granted BMH's motion for summary judgment and dismissed Darrah's petition. Darrah appealed, and we removed this case to our docket pursuant to our power to regulate the caseload of the Nebraska Court of Appeals. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

In January 1991, Darrah injured his lower back while attempting to push a disabled vehicle. Darrah's family physician diagnosed the injury as a "ruptured disc" and recommended back surgery. On March 27, Dr. Eric Pierson, a neurologist; Dr. Samuel Smith, an orthopedic surgeon; and Dr. Richard Petersen, Jr., an anesthesiologist, performed surgery on Darrah's back. The record reflects that all three doctors had staff privileges at BMH, but none were considered agents or employees of BMH.

Darrah asserts that while he was recovering from surgery, an intravenous line (IV) was inserted into his right arm to supply him with various medications. Darrah alleges the nurse had difficulty transferring and inserting the IV from his right to his left arm, and claims the nurse made several unsuccessful attempts to insert the IV and eventually had to contact a supervising nurse. Darrah conceded he was uncertain whether the IV was switched to his right or his left arm. In addition, Darrah's medical chart indicates the IV was started in the left arm and later moved to the right, not right to left as Darrah contends. Moreover, the evidence does not reflect that any specific problems occurred with Darrah's IV.

The record reflects that neither arm pads nor arm boards were used before, during, or after surgery. Darrah's arms were not strapped down but were merely lying at his sides on the bed or gurney. The record is also devoid of any evidence indicating Darrah was dropped or that his ulnar nerve was exposed to overflexion.

Darrah remained hospitalized at BMH until April 4, 1991. Several days after surgery, Darrah noticed "tingling" and numbness in his left hand and arm. After leaving the hospital, Darrah experienced pain and loss of strength in his left hand and arm. On May 3, Darrah's family physician diagnosed him as having "ulnar neuritis."

As a result of the ulnar neuritis or ulnar neuropathy allegedly sustained at BMH, Darrah brought a medical malpractice action against BMH based on res ipsa loquitur. In response, BMH filed a motion for summary judgment. In ruling on the motion, the district court noted that the doctrine of res ipsa loquitur applies only when an instrumentality under the exclusive control of the alleged wrongdoer produces an injury which would not ordinarily occur in the absence of negligence by the alleged wrongdoer. The district court found that the damage to Darrah's ulnar nerve could have occurred during or after surgery while he was hospitalized at BMH. The district court stated:

Putting aside the particular nature of the injury, it is clear that the requirement of exclusive control cannot be satisfied in view of the absence of the operating surgeons and the anesthesiologist as party defendants. These are parties who control the activities during surgery and they are neither agents [n]or employees of the defendant hospital.

Accordingly, the district court granted BMH's motion for summary judgment. Darrah filed a motion for reconsideration and new trial or leave to amend, which was also overruled by the district court. Darrah filed a notice of appeal on October 31, 1996.

Darrah contends the district court erred in (1) sustaining BMH's motion for summary judgment, (2) incorrectly analyzing the law governing hospitals' nondelegable duty of care to patients, (3) incorrectly analyzing the law governing joint tort-feasors and concurrent causes of injury, and (4) denying Darrah the opportunity to amend his petition.

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997); Brown v. Wilson, 252 Neb. 782, 567 N.W.2d 124 (1997). On a motion for summary judgment, the question is not how a factual issue is to be decided, but, rather, whether any real issue of material fact exists. Kime v. Hobbs, 252 Neb. 407, 562 N.W.2d 705 (1997); Vilcinskas v. Johnson, 252 Neb. 292, 562 N.W.2d 57 (1997). Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment. Stones v. Sears, Roebuck & Co., 251 Neb. 560, 558 N.W.2d 540 (1997).

Darrah initially argues that merely pleading res ipsa loquitur precludes summary judgment. Motions for summary judgment have been repeatedly granted in cases based on res ipsa loquitur. See, Chism v. Campbell, 250 Neb. 921, 553 N.W.2d 741 (1996); Anderson v. Service Merchandise Co., 240 Neb. 873, 485 N.W.2d 170 (1992); McCall v. St. Joseph's Hospital, 184 Neb. 1, 165 N.W.2d 85 (1969). When the doctrine of res ipsa loquitur is utilized, the examination of whether there is a genuine issue of material fact must be related solely to the issues under the required elements of the doctrine. McCall, supra. If the doctrine of res ipsa loquitur is applicable, the inference of negligence itself presents a question of material fact, and summary judgment is improper. Anderson, supra. If, however, the doctrine of res ipsa loquitur is inapplicable as a matter of law and there is no material question of fact regarding actionable negligence, summary judgment is proper. Id. Therefore, merely...