Hitzemann v. Adam, S-92-1013
| Decision Date | 24 June 1994 |
| Docket Number | No. S-92-1013,S-92-1013 |
| Citation | 518 N.W.2d 102,246 Neb. 201 |
| Parties | Christine L. HITZEMANN, Appellant, v. George M. ADAM, M.D., and Mary Lanning Memorial Hospital, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Demurrer: Pleadings: Appeal and Error. When reviewing a ruling on a general demurrer, an appellate court is required to accept as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader.
2. Actions: Malpractice. A cause of action arising while a patient and health care provider are subject to the Nebraska Hospital-Medical Liability Act is to be adjudicated in accordance with the provisions of the act.
3. Demurrer: Pleadings. When a demurrer to a petition is sustained, the trial court must grant the plaintiff leave to amend the petition unless it is clear that no reasonable possibility exists that by repleading the plaintiff will be able to correct the defective petition. After the demurrer has been sustained, but where there is a reasonable possibility that the defective petition may be cured by amendment, denying the plaintiff the opportunity to replead is an abuse of discretion.
4. Malpractice: Physicians and Surgeons Parent and Child: Damages. Parents of a healthy, normal child born after an unsuccessful sterilization operation may not recover child-rearing costs, but may recover damages for such child for prenatal and delivery medical expenses; for emotional distress, loss of wages, pain and suffering, and loss of consortium caused by the failed sterilization, pregnancy, and childbirth; and for any costs associated with a second corrective sterilization procedure.
5. Malpractice: Damages: Proof. Because of the speculative nature of the damages, the cost of rearing a healthy, normal child born as the result of medical malpractice cannot be recovered. However, damages for such child for prenatal and delivery medical expenses; for emotional distress, loss of wages, pain and suffering, and loss of consortium caused by the failed sterilization, pregnancy, and childbirth; and for any costs associated with a second corrective sterilization procedure if proven, may be recovered.
Daniel J. Thayer, of Lauritsen, Brownell, Brostrom & Stehlik, Grand Island, for appellant.
Mark E. Novotny, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee Adam.
Robert W. Wagoner, Grand Island, for appellee Mary Lanning Memorial Hosp.
The plaintiff, Christine L. Hitzemann, filed this action against the defendants, George M. Adam, M.D., and Mary Lanning Memorial Hospital (Hospital), for medical malpractice under the Nebraska Hospital-Medical Liability Act and for breach of contract. The trial court sustained the defendants' demurrers to the plaintiff's second amended petition and dismissed the plaintiff's cause of action without prejudice. The plaintiff has appealed to this court assigning as error the trial court's sustaining the defendants' demurrers.
When reviewing a ruling on a general demurrer, an appellate court is required to accept as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the conclusions of the pleader. Lawyers Title Ins. Corp. v. Hoffman, 245 Neb. 507, 513 N.W.2d 521 (1994).
On May 4, 1991, the plaintiff was admitted to the Hospital complaining of pain in her lower abdomen. At that time, she was seen by Dr. Adam, and after consultation with Dr. Adam, he recommended that the plaintiff undergo a procedure to remove cysts from her ovaries and sterilization, both through a laproscopic surgical procedure. The plaintiff verbally consented to both procedures, the latter to prevent conception. The plaintiff signed a permit authorizing Dr. Adam to perform both procedures.
The operation was performed the next day by Dr. Adam at the Hospital; however, the sterilization procedure was never completed. Subsequent to the surgery, the plaintiff received postoperative information and counseling regarding her sterilization procedure.
Subsequent to the plaintiff's surgery, the plaintiff resumed marital relations with her husband. Approximately 8 weeks after the surgery, the plaintiff's husband was informed by Dr. Adam's office that the sterilization procedure had not been performed.
The plaintiff claimed that as a result of Dr. Adam's and the Hospital's (1) failing to perform the tubal sterilization, (2) counseling of the plaintiff as to the postoperative consequences of the tubal sterilization, and (3) failing to timely inform the plaintiff of the omission to perform the tubal sterilization, the plaintiff and her husband resumed marital relations without the use of birth control procedures.
On July 20, 1991, the plaintiff was informed that she was pregnant. The child was conceived between May 14 and 30, 1991. On February 5, 1992, the plaintiff's son was born as a result of the pregnancy.
For her second cause of action, the plaintiff alleged that she entered into a contract with Dr. Adam and the Hospital whereby the defendants agreed to perform a tubal sterilization. The plaintiff further alleged that the defendants breached the contract by failing to perform the sterilization and that the breach was the cause of the pregnancy and birth of her son.
The plaintiff claimed damages for prenatal and birthing expenses and sought child-rearing expenses up to and beyond her son's age of majority. The plaintiff also claimed physical pain and suffering, mental and emotional pain and suffering, loss of consortium, and loss of wages.
In her second amended petition, the plaintiff alleged the defendants were qualified as health care providers under the Nebraska Hospital-Medical Liability Act, Neb.Rev.Stat. § 44-2801 et seq. (Reissue 1988 & Cum.Supp.1990). She affirmatively waived her right to a medical review panel pursuant to § 44-2840(4).
Section 44-2821 provides in part:
(2) If a health care provider shall qualify under the Nebraska Hospital-Medical Liability Act, the patient's exclusive remedy against the health care provider or his or her partner, employer, or employees for alleged malpractice, professional negligence, failure to provide care, breach of contract relating to providing medical care, or other claim based upon failure to obtain informed consent for an operation or treatment shall be as provided by the Nebraska Hospital-Medical Liability Act unless the patient shall have elected not to come under the provisions of such act. Unless the patient or his or her representative shall have (a) elected not to be bound by the terms of the Nebraska Hospital-Medical Liability Act, (b) filed such election with the director in advance of any treatment, act, or omission upon which any claim or cause of action is based, and (c) notified the health care provider of election as soon as is reasonable under the circumstances that such patient has so elected, it shall be conclusively presumed that the patient has elected to be bound by the terms and provisions of the Nebraska Hospital-Medical Liability Act.
The plaintiff did not allege an election on her part not to be bound by the provisions of the act. Accordingly, the provisions of the act provide the plaintiff's exclusive remedy against the defendants.
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