Gonzales v. Neb. Pediatric Practice, Inc.

• Decision Date: 29 January 2019
• Docket Number: No. A-17-350.,A-17-350.
• Citation: 923 N.W.2d 445,26 Neb.App. 764
• Parties: Rosa GONZALES and Javier Rojas, Individually and as Parents and Next Friends of Joaquin Rojas, a Minor, Appellants, v. NEBRASKA PEDIATRIC PRACTICE, INC., et al., Appellees.
• Court: Nebraska Court of Appeals

26 Neb.App. 764

923 N.W.2d 445

Rosa GONZALES and Javier Rojas, Individually and as Parents and Next Friends of Joaquin Rojas, a Minor, Appellants,

v.NEBRASKA PEDIATRIC PRACTICE, INC., et al., Appellees.

No. A-17-350.

Court of Appeals of Nebraska.

Filed January 29, 2019

I. INTRODUCTION

Rosa Gonzales and Javier Rojas (Appellants), individually and as parents and next friends of Joaquin Rojas, appeal the district court’s order denying the motion to admit expert testimony filed by Appellants and granting the motion to strike expert testimony filed by Nebraska Pediatric Practice, Inc.; Corey S. Joekel, M.D.; and Children’s Hospital and Medical Center (Children’s) (collectively Appellees). Appellants also appeal the district court’s order granting Appellees’ motion for summary judgment. For the reasons set forth herein, we affirm in part, and in part reverse and remand for further proceedings consistent with this opinion.

II. STATEMENT OF FACTS

1. APPELLANTS’ COMPLAINT

In August 2014, Appellants sued Appellees for malpractice or professional negligence under Neb. Rev. Stat. § 44-2822 (Reissue 2010). Specifically, Appellants allege Rosa brought her son Joaquin to the emergency department at Children’s on August 5, 2012, with symptoms consistent with mononucleosis

, which is also known as the Epstein-Barr virus (EBV). The examining physician diagnosed Joaquin with mononucleosis and discharged him. On August 7, Rosa brought Joaquin back to the emergency department at Children’s because Joaquin’s symptoms were not improving and some of his symptoms seemed to be getting worse. Appellants allege that at that time, some of Joaquin’s symptoms were consistent with mononucleosis

and EBV meningoencephalitis. Encephalitis is an inflammation of the brain, and meningitis is an inflammation of the protective membranes covering the brain. Dr. Joekel, the treating emergency department physician, diagnosed Joaquin with mononucleosis and discharged him.

Three and a half hours after being discharged, Joaquin had a seizure requiring fire department emergency personnel to transport him from his home to the University of Nebraska Medical Center (UNMC) emergency department, where he was subsequently admitted. During the seizure, medical personnel administered antiepileptic drugs and performed a tracheostomy

due to a lack of oxygen during the seizure. At UNMC, Joaquin was diagnosed with EBV meningoencephalitis, which is a combination of encephalitis and meningitis, and on August 10, 2012, Joaquin underwent a decompressive craniectomy to remove sections of his skull to relieve pressure on his brain. About a month later, Joaquin underwent a cranioplasty to replace the skull sections. Joaquin was discharged from UNMC to a rehabilitation hospital, where he spent about a month receiving physical and speech therapy. Appellants allege that since returning home, Joaquin has displayed effects of brain injury caused by the August 7 seizure, including learning deficits and placement in special education classes. Appellants’ complaint alleges Dr. Joekel was professionally negligent in failing to diagnose Joaquin’s EBV meningoencephalitis and failing to admit Joaquin to Children’s for further supportive treatment and evaluation. On the dates at issue, Dr. Joekel was a pediatric emergency department physician employed with Nebraska Pediatric Practice, which had a contract with Children’s to provide emergency department services at its facility.

2. PRETRIAL MOTIONS

In February 2017, Appellants filed a motion under Neb. Rev. Stat. § 27-104 (Reissue 2016) to qualify Dr. Todd Lawrence as an expert witness on all elements of proof required for this medical malpractice claim, including standard of care, breach, causation, and damages. Appellees filed a motion to strike Dr. Lawrence as an expert witness, arguing that his proposed causation testimony amounted to speculative loss-of-chance testimony and was inadmissible under the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Schafersman v. Agland Coop , 262 Neb. 215, 631 N.W.2d 862 (2001) ( Daubert / Schafersman ). Appellees also filed a motion for summary judgment on the issue of causation, asserting Appellants could not prove causation and had not presented any evidence that Joaquin’s outcome would have been different if he had been admitted to Children’s and treated on August 7, 2012, rather than being discharged.

During a hearing on the motions, the court first heard argument and received exhibits on Appellants’ motion to qualify their expert and Appellees’ motion to strike Appellants’ expert. Appellants offered the following exhibits which were received without objection: Dr. Lawrence’s curriculum vitae, Appellants’ designation of Dr. Lawrence as an expert witness, Dr. Lawrence’s deposition, and Dr. Joekel’s deposition. Appellees offered Dr. Ivan Pavkovic’s deposition, Dr. Pavkovic’s affidavit, Dr. Archana Chatterjee’s affidavit, and various published medical literature explaining EBV, encephalitis

, meningitis, and seizures. Appellants objected to Appellees’ exhibits, with the exception of the deposition of Dr. Pavkovic. Specifically, Appellants’ counsel stated:

[Counsel]: ... We object to [the affidavits of Drs. Pavkovic and Chatterjee] on 402, 403, 702, Schafersman 1 and 2, Kuhmo Tire, and ... the reason for [the objections to the affidavits of Drs. Pavkovic and Chatterjee] —

THE COURT: ... [I]f you have an objection, make it. ... I don’t need argument.

[Counsel]: Those are the numbers. And on [the published medical literature], we object on 402, 403 and 803.17. As there’s been no showing that those are reliable documents by any medical witness since they’re going to be used in a dispositive motion ....

....

[Counsel]: ... Would the court entertain a comment on [the objections to the affidavits of Drs. Pavkovic and Chatterjee]?

THE COURT: No. For the purposes of this hearing, the exhibits will be received.

After discussion on the motions concerning Dr. Lawrence’s testimony, the court then moved to the motion for summary judgment and asked for argument and additional exhibits other than what had already been received. Neither party offered any additional exhibits. Appellees noted that the motion for summary judgment turned on the question of whether Dr. Lawrence’s testimony on causation would be permitted. Appellees argued that Dr. Pavkovic indicated, in his opinion, that nothing could have been done to prevent the outcome in this case and that without Dr. Lawrence’s testimony, Appellants have no causation opinion. Appellants conceded Appellees’ argument and stated: "If you determine that we don’t have causation, then [Appellees’ motion for summary judgment] needs to be granted."

3. EXHIBITS RECEIVED DURING HEARING

(a) "Designation" of Dr. Lawrence

Appellants’ "[d]esignation" of Dr. Lawrence provided that Dr. Lawrence specialized in family and emergency medicine. The designation indicated that, in preparation for this case, Dr. Lawrence reviewed Joaquin’s medical records from a health clinic, the fire department transport, Children’s, UNMC, and an eye consultant, as well as the complaint, answers, and depositions in this case. The designation listed various methodologies which Dr. Lawrence used in his analysis, including the "Case Study Method," the "SOAP Process," the "Differential Diagnosis Method," and the "Differential Etiology Method."

The designation offered Dr. Lawrence’s opinion that Dr. Joekel was required by the applicable standard of care to properly monitor, treat, and diagnose Joaquin during his emergency department visit to Children’s on August 7, 2012, including putting EBV encephalitis

and meningitis on the differential diagnosis; ordering laboratory work, including a complete blood count test, a white blood count test, a C-reactive protein test, and a urine test; ordering a lumbar puncture ; diagnosing and treating EBV encephalitis

or meningitis ; ordering intravenous (IV) fluids, IV antivirals, and aggressive fever medications; and admitting Joaquin to the hospital to provide supportive care, treatment, and monitoring, including, but not limited to, providing care, treatment, and monitoring of Joaquin’s EBV meningoencephalitis. The designation provided Dr. Lawrence’s opinion that Dr. Joekel breached this standard of care in failing to perform these functions and that this failure directly caused Joaquin’s injuries.

(b) Dr. Lawrence’s Deposition

In Dr. Lawrence’s deposition, he testified he has been employed with a medical center in Waterloo, Iowa, since 2003, where he has served as a medical director and staff physician for the emergency department. Dr. Lawrence is board certified in family practice, but he is not board certified in pediatrics, pediatric neurology, or pediatric infectious disease. Although he serves as an administrator, the majority of his time was spent working as an emergency department physician. In this role, Dr. Lawrence testified that 30 to 40 percent of his patients are pediatric patients; he treats an average of two patients per month with mononucleosis

; and of those individuals, he has performed probably four to five total spinal taps and hospitalized an average of two or three of the diagnosed patients each year. Although he has not diagnosed a patient with EBV encephalitis or meningitis, he has treated patients with viral meningitis. As to seizures and their link to brain injury, Dr. Lawrence testified that he has "seen plenty of patients in [his] career with brain injuries related to seizures not related to infections."

Dr. Lawrence testified he was not sure when Joaquin’s mononucleosis

turned into EBV meningoencephalitis, but that he believes Joaquin had EBV meningoencephalitis when he was treated by Dr. Joekel on August 7, 2012. In general, Dr. Lawrence provided that the treatment for EBV meningoencephalitis"is supportive care typically, so IV fluids, aggressive fever medications, [and] aggressive...