Gonzales v. Neb. Pediatric Practice, Inc.
| Decision Date | 05 March 2021 |
| Docket Number | No. S-20-253.,S-20-253. |
| Citation | 308 Neb. 571,955 N.W.2d 696 |
| Parties | Rosa GONZALES and Javier Rojas, individually and as parents and next friends of Joaquin Rojas, a minor, appellants, v. NEBRASKA PEDIATRIC PRACTICE, INC., and Corey S. Joekel, M.D., appellees. |
| Court | Nebraska Supreme Court |
Greg Garland, of Garland Medmal, L.L.C., Tara DeCamp, of DeCamp Law, P.C., L.L.O., Omaha, and Kathy Pate Knickrehm, Lincoln, for appellants.
Sarah M. Dempsey, Patrick G. Vipond, and Michael L. Storey, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Appellants Rosa Gonzales and Javier Rojas are the parents of Joaquin Rojas, a minor who suffered a brain injury. Alleging that Joaquin's brain injury was caused by Dr. Corey Joekel, M.D., when he misdiagnosed and failed to treat Joaquin's condition, appellants brought a malpractice action against appellees Joekel and his employer, Nebraska Pediatric Practice, Inc.
Based on appellees’ objection, the district court found the expert testimony of appellants’ key witness inadmissible. After excluding that testimony, the district court granted summary judgment to appellees.
For the reasons set forth herein, we reverse the district court's order granting summary judgment and remand the cause for further proceedings consistent with this opinion.
On August 5, 2012, Joaquin, who was then 5 years old, was exhibiting symptoms consistent with mononucleosis, a common condition frequently caused by the Epstein-Barr virus (EBV). Gonzales brought Joaquin to the emergency department at Children's Hospital and Medical Center (CHMC) in Omaha, Nebraska. After an examination, an emergency department physician diagnosed Joaquin with mononucleosis and discharged him.
Over the next 2 days, Joaquin continued to exhibit many of the same symptoms.
Concerned that some of Joaquin's symptoms might be worsening, Gonzales returned Joaquin to the emergency department at CHMC the morning of August 7, 2012. Joekel, the attending emergency department physician, examined Joaquin and diagnosed him with mononucleosis. Joekel ordered Joaquin discharged at 8:44 a.m.
Approximately 3½ hours later, Joaquin began to seize. Gonzales called the 911 emergency dispatch system, and Joaquin was transported by ambulance to the University of Nebraska Medical Center (UNMC) in Omaha. At 12:39 p.m., Joaquin was admitted to the emergency department at UNMC. He was unresponsive and exhibiting decreased respirations. After UNMC staff administered antiepileptic medication, Joaquin began to gradually regain consciousness. Joaquin was diagnosed with EBV meningoencephalitis, a serious infection of the brain and surrounding tissue that can arise as a complication of mononucleosis.
Joaquin also experienced brain swelling and oxygen loss. On August 10, 2012, surgeons at UNMC performed a decompressive craniectomy, removing sections of Joaquin's skull to relieve pressure on his brain. On September 5, UNMC surgeons performed a cranioplasty to replace the sections of Joaquin's skull that they had removed.
On September 10, 2012, Joaquin was transferred to a rehabilitation center for physical and speech therapy. He was discharged home on October 13. Joaquin's parents allege that when Joaquin then attended school, he displayed symptoms of a brain injury, including learning deficits that required his placement in special education classes.
On August 1, 2014, appellants filed a complaint in the district court for Douglas County, asserting that Joaquin's injuries were attributable to Joekel's professional negligence. On behalf of themselves and Joaquin, appellants sought damages from appellees under the Nebraska Hospital-Medical Liability Act.1
As the case progressed toward trial, a dispute arose concerning the admissibility of certain expert testimony. Pursuant to Neb. Rev. Stat. § 27-702 (Reissue 2016), appellants moved to admit the testimony of Dr. Todd Lawrence, a family and emergency room physician, "on all elements of proof required to prove a prima facie case of medical malpractice." Lawrence planned to opine that Joaquin's medical outcome would have been better if, on August 7, 2012, Joekel would not have misdiagnosed Joaquin and failed to admit him for further treatment at CHMC.
Appellees moved to prevent Lawrence from testifying to this opinion. Their basis for objecting to Lawrence's testimony was, in part, Schafersman v. Agland Coop ( Schafersman I ),2 the case in which we adopted the framework set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. ,3 and its progeny4 for evaluating whether to admit expert testimony.
Under our Schafersman I jurisprudence, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion.5 A Schafersman I evaluation generally consists of four factors, including a determination of (1) whether the witness is qualified to testify as an expert, (2) whether the witness’ testimony is supported by scientifically valid and reliable methodology or reasoning, (3) whether the reasoning or methodology has been properly applied to the facts in issue, and (4) whether the testimony's probative value is not substantially outweighed by danger of unfair prejudice.6
Appellees also moved for summary judgment, claiming that without Lawrence's testimony, appellants could not prove causation, an essential element in a medical malpractice case.7
After an evidentiary hearing, the district court agreed with appellees that Lawrence's testimony was inadmissible. The court excluded the testimony on two bases: first, that under Schafersman I , Lawrence was unqualified to testify about causation as an expert; and second, that under our line of cases concerning the relevance of expert testimony,8 Lawrence's opinions amounted to inadmissible loss-of-chance testimony. In a separate order, the district court granted appellees’ motion for summary judgment.
On the first appeal of this case, the Nebraska Court of Appeals affirmed in part, and in part reversed and remanded for further proceedings.9 All three of the panel's judges agreed that a portion of Lawrence's opinions amounted to loss-of-chance testimony, "which, in Nebraska, is insufficient to establish causation."10
Yet as to the portion of Lawrence's opinions that the court found was not loss-of-chance testimony, the panel divided on whether Lawrence was qualified to render such opinions. After a thorough analysis applying the relevant Schafersman I factors, a majority of the Court of Appeals concluded that Lawrence was qualified and that therefore, the district court had abused its discretion in excluding Lawrence's testimony,11 with one judge concurring in part, and in part dissenting.12 The Court of Appeals then remanded the cause "for further proceedings in compliance with [its] opinion."13
On remand, appellees renewed their objection that Lawrence's testimony was inadmissible under Schafersman I . They moved to amend the scheduling order to name an additional expert witness, Dr. Daniel Bonthius, a neurologist and pediatrician who specialized in viral encephalitis.
Then, supported by live video testimony from Bonthius, affidavits from two other physicians who specialized in pediatric epilepsy and infectious disease, and three articles from medical journals, appellees challenged Lawrence's testimony under the second and third Schafersman I factors. To wit, appellees contended that Lawrence's testimony would depend on invalid "methods or scientific knowledge" and would not properly apply valid methods or reasoning to the facts in issue. Further, on the condition that their motion to exclude Lawrence's testimony was granted, appellees moved again for summary judgment.
At a hearing on appellees’ motions, appellants objected to the form of Bonthius’ testimony. But because appellees had provided nearly 4 months’ notice of their intent to offer Bonthius’ testimony by live video, and because appellants had only begun objecting to Bonthius’ testimony in that form on the day before the hearing, the district court concluded that appellants had "implicitly agreed" to such testimony by their conduct. The district court thus received Bonthius’ testimony by live video pursuant to Neb. Rev. Stat. § 24-734(4) (Reissue 2016).14
The district court then granted appellees’ motion to exclude Lawrence's testimony from trial. Despite finding that Lawrence was qualified as a physician and entitled to give "medical opinions," the district court found that his testimony "with regard to the causation of seizures and the extent and longevity thereof are not within his skill set and[,] based on the testimony of [Bonthius], are not consistent with current medical knowledge in the area." Accordingly, the district court ordered that "causation opinions regarding any relationship between [EBV meningoencephalitis ] and seizures offered by Dr. Lawrence must be stricken." Because appellants’ argument for causation depended for support on Lawrence's testimony, the district court also granted summary judgment to appellees.
Appellants filed a timely notice of appeal.15 While the appeal was pending, appellees requested a supplemental bill of exceptions containing the records from two hearings. The court reporter averred that she was unable to produce a record for one of the hearings because no stenographic record had been made.
Appellees moved for an order nunc pro tunc to augment the bill of exceptions with an affidavit from their attorney that had allegedly been received at that hearing but not included in the record. Finding that the affidavit had been properly received as evidence but "inadverten[tly]" left out of the record due to "clerical error" by the court reporter, the district court granted appellees’ motion and ordered the affidavit included in the bill of exceptions.
We moved the appeal to our docket.16
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