Doe v. Zedek

• Decision Date: 15 January 1999
• Docket Number: No. S-97-1200,S-97-1200
• Citation: 587 N.W.2d 885,255 Neb. 963
• Parties: Jane DOE Two, appellee, v. Yaron ZEDEK, M.D., appellant.
• Court: Nebraska Supreme Court

Page 885

587 N.W.2d 885

255 Neb. 963

Jane DOE Two, appellee, v. Yaron ZEDEK, M.D., appellant.

No. S-97-1200.

Supreme Court of Nebraska.

Jan. 15, 1999.

Syllabus by the Court

1. Appeal and Error. To the extent issues of law are presented, an appellate court has an obligation to reach independent conclusions irrespective of the determinations made by the court below.

2. Summary Judgment: Final Orders: Appeal and Error. A denial of a motion for summary judgment is an interlocutory order, not a final order, and therefore not appealable.

3. Summary Judgment: Appeal and Error. When adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an order specifying the facts which appear without substantial controversy and direct such further proceedings as it deems just. Otherwise, the denial of a summary judgment motion is neither appealable nor reviewable.

4. Summary Judgment. The overruling of a motion for summary judgment does not decide any issue of fact or proposition of law affecting the subject matter of the litigation, but merely indicates that the court was not convinced by the record that there was not a genuine issue as to any material fact or that the party offering the motion was entitled to a judgment as a matter of law.

5. Summary Judgment: Appeal and Error. After trial, the merits should be judged in relation to the fully developed record, not whether a different judgment may have been warranted on the record at summary judgment.

6. Directed Verdict: Evidence. A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law.

7. Malpractice: Physician and Patient: Proof: Proximate Cause. In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff's alleged injuries.

8. Negligence: Proximate Cause. A defendant's negligence is not actionable unless it is a proximate cause of the plaintiff's injuries or is a cause that proximately contributed to them.

9. Malpractice: Physician and Patient: Proof: Proximate Cause. Proximate causation requires proof necessary to establish that the physician's deviation from the standard of care caused or contributed to the injury or damage to the plaintiff.

10. Expert Witnesses. Where the character of an alleged injury is not objective, but, rather, subjective, the cause and extent of the injury must be established by expert medical testimony.

11. Expert Witnesses. Subjective injuries may only be inferred from their symptoms and, consequently, require medical expert testimony to determine the cause and extent thereof.

12. Directed Verdict: Appeal and Error. In reviewing the action of a trial court, an appellate court must treat a motion for directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.

13. Malpractice: Physicians and Surgeons: Expert Witnesses: Words and Phrases. Although expert medical testimony need not be couched in the magic words of 14. Malpractice: Physicians and Surgeons: Expert Witnesses: Words and Phrases.. Medical expert testimony regarding causation based upon possibility or speculation is insufficient; it must be stated as being at least "probable," in other words, more likely than not.

"reasonable medical certainty" or "reasonable probability," it must be sufficient as examined in its entirety to establish the crucial causal link between the plaintiff's injuries and the defendant's negligence.

15. Trial: Evidence: Proof. The burden of proving a cause of action is not sustained by evidence from which a jury can arrive at its conclusions only by guess, speculation, conjecture, or choice of possibilities; there must be something more which would lead a reasoning mind to one conclusion rather than to another.

16. Trial: Evidence: Juries. Before evidence is submitted to a jury, there is a preliminary question for the court to decide, when properly raised, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it and upon whom the burden is imposed.

17. Trial: Evidence: Juries: Appeal and Error. Where there is no basis for recovery under the evidence adduced at trial, submission to the jury constitutes error.

John R. Douglas and Terry J. Grennan, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Blaine T. Gillett, of Ruff, Nisley & Lindemeier, North Platte, for appellee.

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

HENDRY, C.J.

INTRODUCTION

In this appeal, Dr. Yaron Zedek, appellant, challenges the Lincoln County District Court's denial of his motion for a directed verdict. This is a medical malpractice action originally filed by "Jane Doe Two" (Doe), appellee, against North Platte Nebraska Hospital Corporation, doing business as Great Plains Regional Medical Center (Great Plains), and Zedek.

Doe was admitted to Great Plains by Zedek for psychiatric treatment and was a patient at the time she was sexually assaulted by an employee of the hospital. The case against Zedek was tried on a theory of professional negligence, and in accordance with the jury verdict, judgment was entered in favor of Doe. The main issue on appeal is whether Doe satisfied her burden of establishing Zedek's negligence as a proximate cause of her alleged injuries of mental suffering.

FACTUAL AND PROCEDURAL BACKGROUND

Doe is a mildly retarded, 52-year-old female who has an IQ of 64. Prior to hospitalization, Doe had been suffering from recurrent, nonpsychotic major depressive episodes. Doe was admitted to the psychiatric unit at Great Plains on September 8, 1993, pursuant to the recommendation of Zedek. On September 27, Doe left the hospital on a day pass with her caseworker, Jean Risseeuw. During this excursion, Doe told Risseeuw that Doe had had sex with someone on the unit. Upon their return to the hospital, Risseeuw informed the nursing staff of what Doe had told her. The next day, during morning report, Zedek was notified of what Doe had reported to Risseeuw. After morning report, Zedek and the nurse manager met with Doe privately and discussed the incident. Doe told Zedek that approximately 8 days earlier a "black man" had come into her room to take her vital signs. Doe alleged that this man took her into the bathroom and had sex with her. At trial, Doe testified that what she had meant by a black man was a man dressed in "black pants and a black shirt."

Zedek testified that he did not believe Doe for many reasons. Zedek believed that Doe was probably relating a dream, because she was on antidepressant medications. He also testified that he believed the sexual assault was highly unlikely because Doe had a roommate After Zedek learned of Doe's assault, he continued to see Doe every day during her hospitalization. During these visits, Zedek would ask Doe general questions about how she was doing and if she had any concerns. In response to these questions, Doe never mentioned the sexual assault. After Doe's discharge from the hospital on October 6, 1993, she continued to see Zedek on an outpatient basis for another year. Based on hospital records, nurses' notes, and Zedek's own notes, Doe never asked for, nor was she ever offered, psychiatric counseling or therapy to treat any potential trauma or harm she may have experienced from the assault. After hospitalization, Doe did receive professional counseling for the sexual assault from Mary Muller, a therapist with a master's degree in clinical psychology. This therapy, however, was independent of any offered by Zedek or Great Plains.

she was on a locked psychiatric unit, she was checked every 10 to 15 minutes by the staff, and there were no black employees or patients on the unit. Although Zedek did not believe Doe, he told the nurse manager to notify the appropriate sources to investigate the matter. The police were notified the same day and began an investigation. The investigation eventually revealed a suspect who was an employee of the hospital, and charges were filed against him.

On May 17, 1995, Doe filed this action against Great Plains and Zedek. Great Plains settled with Doe and was dismissed from the litigation. Zedek then filed a motion for summary judgment, which was denied. A jury trial followed, and the case against Zedek was tried on the theory that he was professionally negligent in failing to properly evaluate and treat Doe after she informed him of the sexual assault and that, as a result, Doe experienced mental suffering.

At the end of Doe's case, Zedek moved for a directed verdict on several grounds, most notably the reason that there was no competent evidence that Doe sustained any damage as a result of any of Zedek's alleged acts of negligence. The motion was overruled, and the trial proceeded. At trial, Zedek presented evidence that he had not been negligent in the care of Doe, after which he renewed his motion for a directed verdict on the same grounds. The jury returned a verdict against Zedek in the amount of $100,000. Zedek then filed a motion for judgment notwithstanding the verdict or in the alternative a new trial. The district court denied both...