Hamilton v. Bares
| Decision Date | 16 April 2004 |
| Docket Number | No. S-02-1475.,S-02-1475. |
| Citation | 678 N.W.2d 74,267 Neb. 816 |
| Parties | Hamako I. HAMILTON, appellee, v. Dr. Harold R. BARES, appellant. |
| Court | Nebraska Supreme Court |
Mark E. Novotny and Shun Lee Fong, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellant.
Mandy L. Strigenz and E. Terry Sibbernsen, of E. Terry Sibbernsen, P.C., Omaha, for appellee.
Hamako I. Hamilton brought this medical malpractice action against Dr. Harold R. Bares, alleging that she suffered damages resulting from Bares' treatment of her vision problems. The district court overruled motions for directed verdict made by both parties. The jury was unable to reach a verdict, and the court declared a mistrial. The court overruled Bares' motions for new trial and for judgment notwithstanding the verdict, and Bares appeals.
On a motion for judgment notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).
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. Saberzadeh v. Shaw, 266 Neb. 196, 663 N.W.2d 612 (2003).
In the summer of 1997, Hamilton sought medical attention for vision problems in her right eye. She consulted with Bares, an ophthalmologist practicing in Bellevue, Nebraska. Bares advised her that she required cataract surgery. Hamilton underwent such surgery on August 7. Bares reported that the surgery was successful and that she could expect a full recovery in approximately 6 weeks. At that time, she would be given a new prescription for eyeglasses.
Following surgery, Hamilton suffered from decreased visual clarity, abnormal drooping and closure of the eye, and excessive watering of the eye, for which Bares prescribed a pain reliever and antibiotic eye drops. He took X rays of Hamilton's eye and advised her that there was bleeding surrounding the retina which caused the decreased vision and excessive watering and that the condition would improve over time. Bares told her that laser treatment to attempt to stop the bleeding would be risky and could cause further damage to her vision.
On January 30, 1998, Hamilton went to Bares for a followup appointment, at which time Bares performed a capsulotomy. In her petition, Hamilton alleged that her right eye became more distressed and that she had diminished visual ability after the capsulotomy. She also alleged that Bares performed the procedure without proper advance notice to her, denying her the opportunity to obtain a second opinion. Hamilton continued to see Bares until November 1998, when she sought alternative medical attention.
Hamilton brought suit in August 1999, asserting that Bares had breached his duty to her. She alleged that Bares had negligently failed to conduct an adequate examination of her right eye and failed to perform diagnostic tests on her eye. She claimed that Bares failed to note and treat an existing retinal problem, negligently performed the cataract surgery and capsulotomy, and failed to advise her of the risks to her retina during cataract surgery.
At trial, Dr. Frederick Mausolf, an ophthalmologist who practices in Lincoln, Nebraska, testified as an expert for Hamilton. Mausolf had examined Hamilton in November 1998 and observed that she had "severe surface wrinkling with fibrosis at the macula on the right side," meaning that the inner layer of the retina was wrinkled. Mausolf told her that the only treatment available was surgery to remove the membrane and smooth out the retina.
From his review of Hamilton's medical records, Mausolf noted that her vision was 20/60 prior to the cataract surgery and that it decreased dramatically after the surgery. He also noted that in 1995, Hamilton had been seen at the Offutt Air Force Base hospital, and the records indicated that she had "macular pucker secondary to retina ERM, epiretinal membrane," a condition where the surface of the retina is wrinkled. Mausolf testified that he saw no mention or diagnosis of epiretinal membrane in the medical records made by Bares.
Mausolf was asked whether he had an opinion within a reasonable degree of medical certainty as to whether Bares had followed the standard of care required for an ophthalmologist practicing in Bellevue on August 1, 1997. Following a relevancy objection that was overruled, Mausolf gave his opinion that the epiretinal membrane was not seen, noted, or taken into account prior to the cataract surgery, and he opined that Hamilton "wasn't given proper informed consent regarding the epiretinal membrane in order to make an informed decision as to whether to proceed with the cataract surgery or not." Mausolf stated that the cataract was of enough clarity that the epiretinal membrane could have been seen. Mausolf testified that Hamilton should have been informed that she had two problems causing visual loss, the cataract and the epiretinal membrane, and that removing the cataract alone would not compensate for the loss of vision due to the epiretinal membrane. He found no evidence in the records he reviewed to indicate that she was informed about the epiretinal membrane.
Mausolf was asked if, in his opinion, Bares had breached the standard of care for an ophthalmologist practicing in Bellevue based on his failure to provide Hamilton with sufficient information to permit her to make an informed decision whether to have the cataract surgery. Mausolf stated that "it was required of the doctor to do a complete examination to find out the possible causes for her visual loss." Mausolf opined that Hamilton should have been informed that her visual loss was "partially due to the epiretinal membrane disease and due to the cataract." This information could have been taken into consideration in deciding whether to have the cataract removed. Mausolf said he did not see in the records that Bares discussed with Hamilton any alternative methods of treatment.
Hamilton's visual acuity was 20/80 when Mausolf saw her in November 1998 and when he saw her again in June 2001. In September 2001, her visual acuity was 20/200. Mausolf stated to a reasonable degree of medical certainty that the cataract surgery aggravated Hamilton's preexisting epiretinal membrane condition and caused her vision to further decrease.
Dr. Ira Priluck, an ophthalmologist in Omaha, Nebraska, testified for Bares. Priluck specialized in retinal problems and performed retinal surgeries. Priluck said that Hamilton came to him for a second opinion concerning her retinal problem and that he recommended additional surgery, but she refused. Priluck testified to a reasonable degree of medical certainty that he believed Bares met the standard of care in diagnosing the retinal problem before cataract surgery and in advising Hamilton as to the risks, complications, and benefits of the cataract surgery.
Priluck testified that many patients do not remember having given informed consent prior to eye surgery, an issue which he has studied and about which he has published articles. Priluck's studies showed that about 80 percent of the patients remembered being told about the positive aspects of the surgery, while almost 80 percent denied they were ever told about the possibility of a bad outcome. Priluck said that because Hamilton's macular problem existed previously, her diminished vision would not have been caused by Bares' failure to diagnose the epiretinal membrane prior to surgery or his failure to obtain informed consent.
Dr. Gerald Christensen, an ophthalmologist who also testified for Bares, said that he was familiar with the generally accepted standard of care for ophthalmologists in the Sarpy County area as to the diagnosis, treatment, and informed consent related to cataracts, macular problems, and epiretinal membranes. To a reasonable degree of probability or medical certainty, Christensen said he believed that Bares met the appropriate standard of care in advising Hamilton of her retinal problem prior to surgery and that Bares met the standard of care in advising Hamilton of the risks of cataract surgery prior to the procedure.
Both parties made motions for directed verdict during trial that were overruled by the district court. The motions were renewed at the close of all the evidence and were again overruled. The jury was unable to reach a verdict, and a mistrial was declared. Bares subsequently filed motions for new trial and for judgment notwithstanding the verdict. The motions were overruled, and Bares filed this appeal.
Bares asserts that the district court erred in overruling his motions for directed verdict, for new trial, and for judgment notwithstanding the verdict.
We first note that we have jurisdiction over this appeal pursuant to Neb.Rev. Stat. § 25-1315.02 (Cum.Supp.2002), which authorizes an appeal from the denial of a judgment notwithstanding the verdict after the jury has been discharged as the result of an inability to reach a verdict. See Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000).
In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard...
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