Fackler v. Genetzky

• Decision Date: 01 February 2002
• Docket Number: No. S-00-758.,S-00-758.
• Citation: 638 N.W.2d 521,263 Neb. 68
• Parties: Howard S. FACKLER and Patricia A. Fackler, husband and wife, Appellants, v. Roger M. GENETZKY, Appellee.
• Court: Nebraska Supreme Court

638 N.W.2d 521

263 Neb. 68

Howard S. FACKLER and Patricia A. Fackler, husband and wife, Appellants, v. Roger M. GENETZKY, Appellee.

No. S-00-758.

Supreme Court of Nebraska.

February 1, 2002.

Dorothy A. Schinzel for appellants.

Charles T. Patterson and Patrick L. Sealey, Sioux City, IA, of Heidman, Redmond, Fredregill, Patterson, Plaza, Dykstra & Prahl, L.L.P., for appellee.

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

WRIGHT, Justice.

NATURE OF CASE

Howard S. Fackler and Patricia A. Fackler sued Roger M. Genetzky, D.V.M., for alleged professional negligence that resulted in the deaths of two horses owned by the Facklers. In Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999), we reversed the trial court's decision to grant summary judgment on the professional negligence claims and remanded the cause for further proceedings. At the close of the Facklers' evidence, the trial court directed a verdict in favor of Dr. Genetzky, and the Facklers appeal.

SCOPE OF REVIEW

The party against whom a verdict is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. Steele v. Sedlacek, 261 Neb. 794, 626 N.W.2d 224 (2001), modified 262 Neb. 1, 626 N.W.2d 224.

In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion 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. Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996).

FACTS

In June 1995, the Facklers owned horses named "Indian Magic" and "Patricia Gold." Both horses were kept at Atokad racetrack, where Dr. Genetzky was the practicing veterinarian.

Dr. Genetzky has been a licensed veterinarian for more than 28 years. He received his doctor of veterinary medicine degree from Kansas State University in 1972. In June 1995, he was licensed in both Nebraska and South Dakota. His practice involved mostly large animals, with an emphasis on equine species.

In their petition, the Facklers alleged that on June 17, 1995, they had requested that Dr. Genetzky give Indian Magic an injection of Lasix and an injection of "Bute," two commonly used equine medicines. On June 19, Howard Fackler noticed that the horse had swelling in its neck. The horse died during the night of June 19. The Facklers alleged that the death of Indian Magic was caused by an infection and that the infection was the result of Dr. Genetzky's practice of nonsterile procedures while giving the injections.

By videotape deposition, Vickie Cooper, D.V.M., stated that she had performed a necropsy on Indian Magic and that at the time, the horse was in an advanced state of decomposition. Dr. Cooper did not find any evidence in the major organs that could have caused the death. Her report stated that clostridial myositis (bacterial infection) was found in the neck area where the injections had been given. She opined that the bacterial infection could possibly have resulted from the contamination of a wound. She noted that clostridial bacteria are found in a horse's gastrointestinal tract, are ubiquitous within a horse's environment, and proliferate throughout the body during decomposition.

Dr. Cooper could not state that the death of Indian Magic was caused by the injections or a bacterial infection, but that a number of factors could have caused the horse's death. The degree of decomposition masked any changes that could have led to a more distinctive diagnosis.

The Facklers further alleged they requested that Dr. Genetzky administer a lubricating injection to one of Patricia Gold's knees. On June 4, 1995, Dr. Genetzky administered a substance called Vetalog, which the Facklers claimed is not a lubricant, but, instead, acts to "freeze" an animal's joint. The Facklers claim they were not told of the possible side effects of Vetalog.

Howard Fackler claimed that Patricia Gold was not having any trouble using her knee but that it was "just warm." He stated that the leg "supposedly shattered" when the horse raced 2 or 3 days after the injection was administered. After the injury, Patricia Gold was confined to a small area in an attempt to facilitate healing of the knee. However, in November 1995, the horse escaped from the confined area and while running "snapped the leg clean off." The following day, the Facklers had the horse destroyed.

A jury trial began on June 14, 2000, and at the close of the Facklers' evidence, Dr. Genetzky's motion for directed verdict was sustained by the trial court.

ASSIGNMENTS OF ERROR

The Facklers assign as error that the trial court erred in (1) granting a directed verdict to Dr. Genetzky, (2) failing to permit the Facklers to prepare and submit as evidence charts regarding the expected earnings of the horses, and (3) "not permitting [them] to submit all of the report Witness Dan Sweetwood had with him."

ANALYSIS

In an action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized professional 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. Fackler v. Genetzky, 257 Neb. 130, 595 N.W.2d 884 (1999). 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. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). 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. Id. 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. Id. Subjective injuries may be inferred only from their symptoms and, consequently, require medical expert testimony to determine the cause and extent thereof. Id.

The party against whom a verdict is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. Steele v. Sedlacek, 261 Neb. 794, 626 N.W.2d 224 (2001), modified 262 Neb. 1, 626 N.W.2d 224. In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion 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. Traphagan v. Mid-America Traffic Marking, 251 Neb. 143, 555 N.W.2d 778 (1996).

At trial, the Facklers asserted that Dr. Genetzky was negligent because he failed to have Indian Magic held properly while the injections were administered and either failed to clean the area of the neck where the injections were given or failed to use a new needle.

Dr. Cooper and Harald Boschult, D.V.M., testified regarding the standard of care for administering an injection to a horse. Dr. Boschult stated that the area should be cleaned of debris as much as possible and that it would be advisable to have someone restrain the horse while the injection is given. Dr. Boschult noted that the State Racing Commission requires veterinarians to use single-use disposable needles.

Dr. Cooper testified that if she were to give an injection, she would make sure there was not excessive gross contamination at the site of the injection. Dr. Cooper stated that reusing a needle could increase the potential for contamination of that needle.

Giving the Facklers the benefit of all reasonable inferences from such testimony, we conclude that the testimonies of Drs. Boschult and Cooper were sufficient to establish the generally recognized medical standard of care required for giving a horse an injection.

Next, the Facklers were required to prove that Dr. Genetzky deviated from this standard. John Loghry, a horse owner, testified that when Dr. Genetzky gave injections to Loghry's horses, he did not wipe down the area. Another horse owner, Ron Brockert, testified that he had seen Dr. Genetzky use the same needle on more than one horse and that on one occasion, he witnessed Dr. Genetzky wash his equipment with a garden hose.

Patricia Fackler was present when Dr. Genetzky administered the injection of Lasix to Indian Magic. Although she saw Dr. Genetzky grab a syringe from his pocket, she turned away because she does not like needles. She did not see Dr. Genetzky brush or clear the area prior to removing the syringe from his pocket. Howard Fackler testified that he held Indian Magic when Dr. Genetzky administered the injection of Bute. Howard Fackler said that Dr. Genetzky placed his finger on the horse's neck, the vein popped up, and the injection was administered. After he pulled out the needle,...