Evans v. Freedom Healthcare, LLC
| Decision Date | 08 April 2022 |
| Docket Number | S-21-494. |
| Citation | 311 Neb. 336,972 N.W.2d 75 |
| Parties | Warren EVANS, appellant, v. FREEDOM HEALTHCARE, LLC, appellee. |
| Court | Nebraska Supreme Court |
Elizabeth A. Govaerts, Lincoln, of Powers Law, for appellant.
Erin C. Duggan Pemberton and Andrew D. Wurdeman, of Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Warren Evans sued Freedom Healthcare, LLC, in the district court for Lancaster County for medical malpractice. The complaint alleged that Freedom Healthcare was negligent when it performed hemocyte tissue autograft
therapy on Evans’ knees, causing a polymicrobic infection of Evans’ right knee which ultimately required extensive treatment and hospitalization. Because the district court found that Evans had failed to introduce expert testimony of medical professional negligence, it granted summary judgment in favor of Freedom Healthcare. Evans appeals. Because the record presents genuine issues of material fact which preclude summary judgment, we reverse the order of the district court and remand the cause for further proceedings.
Freedom Healthcare in Lincoln, Nebraska, is a clinic that offers joint injection therapies to treat patients suffering from knee and joint pain. Freedom Healthcare claims that these joint injections help patients maintain their joints so they may postpone or avoid more invasive procedures, such as knee replacement. Evans had a long history of severe osteoarthritis
and knee pain, and he received injections of hyaluronic acid into his knee at Freedom Healthcare in 2017. On February 5, 2018, Evans returned to Freedom Healthcare for another set of injections. He received hemocyte tissue autograft therapy, or "PRP," a type of viscosupplementation using platelet-rich plasma. The purpose of the injection is to treat pain and inflammation.
Tana Kenley, a physician assistant, performed the procedure. She drew blood from Evans, centrifuged the blood, prepared syringes, prepared Evans, and performed the injections. Evans recalled that his left knee was injected first, then his right, and that the same needle was used for both knees. Kenley testified that prior to an injection, she would sterilize the skin with chlorhexidine
as a matter of course, and that she believed she followed this procedure when she performed the injections on Evans. Kenley testified in her deposition that she used separate syringes for each knee.
During the day following the injections, Evans began experiencing right knee pain, and it continued to worsen. He returned to Freedom Healthcare on February 9, 2018, where he was referred to an emergency room and admitted with severe septic infection in his right knee. The infection was polymicrobial, meaning that more than one infectious agent was present. Evans underwent prolonged hospitalization and multiple surgeries for his affected knee.
Evans sued Freedom Healthcare for negligence. His complaint alleged that Freedom Healthcare acted negligently by (1) failing to properly supervise its employees, (2) failing to properly train its employees, (3) failing to take appropriate steps to ensure that its equipment was sterile, (4) failing to use proper sterile techniques, (5) failing to perform the procedure appropriately, (6) failing to monitor Evans’ condition, and (7) failing to provide immediate followup care. It also alleged that in the normal course of events, an infection of this type would not happen in the absence of negligence, and it claimed that Freedom Healthcare was liable under a theory of res ipsa loquitur.
Freedom Healthcare moved for summary judgment. Evidence was received by the district court. Freedom Healthcare's expert, Dr. David Brown, testified:
An infectious disease specialist, who collaborated in Evans’ treatment while he was hospitalized, stated in his consultation note that the polymicrobial infection
was "undoubtedly sourced from the overlying skin."
Evans’ expert, Dr. Scott Swanson, is an orthopedic surgeon licensed in Nebraska. He treated Evans while he was hospitalized. Dr. Swanson's opinions were offered through deposition testimony and an affidavit that included his March 30, 2018, report. Dr. Swanson opined that the type of infection Evans developed is not considered to be common or a routine risk of the procedure performed. He testified that he had never seen or heard of a polymicrobial infection
following an injection. He stated that in his professional opinion, based on his observations as an orthopedic student and practitioner of 20 years, "this type of infection could simply not have occurred absent a significant breach in the sterile technique at some point in the process" of performing the injections. He opined that such a breach of the sterile technique is a violation of the standard of care for medical providers in the Lincoln area. In his deposition, Dr. Swanson testified that because he had not been informed regarding Freedom Healthcare's sterility protocol, if any, he was unable to form criticisms as to the sterility of the equipment used on Evans, whether Kenley followed proper sterile technique, and whether Kenley followed an appropriate procedure.
In an order granting summary judgment in favor of Freedom Healthcare, the district court concluded that res ipsa loquitur failed as a matter of law and found that Dr. Swanson's deposition testimony was internally inconsistent. The district court further concluded that Evans had failed to put forward competent expert testimony that Freedom Healthcare breached the applicable standard of care.
With respect to res ipsa loquitur, the district court stated that where the overlying skin is pierced and a needle is advanced into the joint, the development of infection following an injection is not " ‘so palpably negligent’ " that negligence should be inferred as a matter of law.
The district court granted summary judgment in favor of Freedom Healthcare. Evans appeals.
On appeal, Evans assigns that the trial court erred when it granted summary judgment in favor of Freedom Healthcare on Evans’ theories of negligence and res ipsa loquitur.
An appellate court affirms a lower court's grant of summary judgment if the pleadings and admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate inferences that may be drawn from the facts and that the moving party is entitled to judgment as a matter of law. Rodriguez v. Lasting Hope Recovery Ctr. , 308 Neb. 538, 955 N.W.2d 707 (2021). In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Lombardo v. Sedlacek , 299 Neb. 400, 908 N.W.2d 630 (2018).
As to the law, the district court concluded that Evans could not advance the res ipsa loquitur doctrine because he had alleged negligence in his original complaint. This was error.
As to the facts, the district court granted Freedom Healthcare's motion for summary judgment on the bases that Evans’ expert witness, Dr. Swanson, had given inconsistent testimony and that his expert opinion regarding the standard of care was insufficient as a matter of law. Giving Evans the reasonable inferences deducible from the evidence, to which he is entitled in summary judgment proceedings, our review of the record shows that the district court erred in both respects. As outlined below, Dr. Swanson's testimony was not inconsistent and his opinion was sufficient, thus creating a genuine issue of material fact precluding summary judgment.
The grant of summary judgment requires reversal.
As an initial matter, we note that in its order on summary judgment, the district court concluded that Evans could not advance the doctrine of res ipsa loquitur "as a matter of law" because he had also alleged the theory of negligence in his complaint. As we explain below, this misapplies the evidentiary rule for res ipsa loquitur at this stage of the proceedings.
Res ipsa loquitur is a procedural tool that, if applicable, allows an inference of a defendant's negligence to be submitted to the fact finder, where it may be accepted or rejected. Anderson v. Union Pacific R.R. Co. , 295 Neb. 785, 890 N.W.2d 791 (2017). We have explained that res ipsa loquitur is " ‘not a rule of pleading, not a substantive rule of law, but a rule of evidence.’ " Id. at 792, 890 N.W.2d at 796 (quoting Ramsouer v. Midland Valley R. Co. , 135 F.2d 101 (8th Cir. 1943) ). A plaintiff alleging and offering proof of specific theories of negligence would necessarily preclude the fact finder from considering res ipsa loquitur, but the pleading stage does not warrant such particularity. See Anderson v. Union Pacific RR. Co., supra .
The district court relied on Anderson v. Union Pacific RR. Co. in its analysis. But the issue in Anderson v. Union Pacific RR. Co. was whether the trial court erred when its jury instructions submitted both negligence and res ipsa loquitur. Given the evidence of a specific act of negligence, we concluded submitting both was error. See id. The district court in this case erroneously applied the jury instruction lesson of ...
To continue reading
Request your trial
-
Elbert v. Young
...Noah's Ark Processors v. UniFirst Corp. , 310 Neb. 896, 970 N.W.2d 72 (2022).2 Id.3 Evans v. Freedom Healthcare , 311 Neb. 336, 972 N.W.2d 75 (2022).4 Id.5 Funk v. Lincoln-Lancaster Cty. Crime Stoppers , 294 Neb. 715, 885 N.W.2d 1 (2016).6 Brief for appellant at 16.7 Lindsay Internat. Sales......
-
Elbert v. Young
...v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72 (2022). [2] Id. [3] Evans v. Freedom Healthcare, 311 Neb. 336, 972 N.W.2d 75 (2022). [4] Id. [5] Funk v. Lincoln-Lancaster Crime Stoppers, 294 Neb. 715, 885 N.W.2d 1 (2016). [6] Brief for appellant at 16. [7]Lindsay Internal Sales & Serv. v. We......
-
Gen. Collection Co. v. Leaman
...to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence. Id. interpretation of an insurance policy is a question of law, in connection with which an appellate court has an obligation to reach its own conclu......
- State v. Surber