Hoffart v. Hodge

Decision Date01 July 1997
Docket NumberNo. A-95-1328,A-95-1328
Citation567 N.W.2d 600,5 Neb.App. 838
PartiesAndrea HOFFART, Personal Representative of the Estate of C. Elizabeth Lemon, Deceased, Appellant, v. Dennis L. HODGE, Appellee.
CourtNebraska Court of Appeals

Syllabus by the Court

1. Verdicts: Juries: Appeal and Error. A jury verdict will not be set aside unless clearly wrong, and it is sufficient if any competent evidence is presented to the jury upon which it could find for the successful party.

2. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

3. Negligence: Proximate Cause. A plaintiff is contributorily negligent if (1) the plaintiff fails to protect himself or herself from injury, (2) the plaintiff's conduct concurs and cooperates with the defendant's actionable negligence, and (3) the plaintiff's conduct contributes to the plaintiff's injuries as a proximate cause.

4. Negligence: Liability: Proximate Cause. Concurrent negligent acts which may impose liability on two individuals acting separately need not necessarily occur simultaneously if they are so related as directly to contribute to the accident.

5. Malpractice: Physician and Patient: Negligence. A medical patient can be contributorily negligent in failing to see a doctor as instructed, because the failure violates the standard of care which a patient is obligated to exercise for his or her own safety.

6. Jury Instructions: Evidence: New Trial. The submission of an issue on which the evidence is insufficient to sustain an affirmative finding is generally prejudicial and results in a new trial.

7. Negligence: Jury Instructions: Juries: Appeal and Error. When contributory negligence is pled as a defense, but there is no evidence to support it, it is prejudicial error to submit to the jury the issue of contributory negligence.

8. Malpractice: Negligence: Proof. In a medical malpractice action, a defendant may raise the issue of contributory negligence as an affirmative defense, and the defendant has the burden to prove contributory negligence.

9. Malpractice: Damages: Evidence. When damages are predicated on the loss of any chance, evidence that establishes only that a person's chance of survival has increased or decreased over some period of time, without any evidence as to the amount of increase or decrease at the significant time, is not adequate.

William A. Wieland, of Healey & Wieland Law Firm, Lincoln, for appellant.

Raymond E. Walden and Mark E. Novotny, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.


HANNON, Judge.

In this action, the estate of C. Elizabeth Lemon seeks to recover for wrongful death and predeath damages upon the basis of the alleged medical malpractice of the defendant, Dr. Dennis L. Hodge. The estate maintains that Hodge negligently failed to diagnose a lump in Lemon's breast as cancer during two early visits and that when Lemon's cancer was correctly diagnosed several months later, the time for successful treatment had passed. In his defense, Hodge maintains that he was not negligent; that at the time of Lemon's first visits, Lemon's cancer had progressed past the point where Lemon could have been successfully treated; and, somewhat inconsistently, that Lemon was contributorily negligent in not returning in 2 months after the initial visits, as he had directed her to do. The jury entered a verdict for Hodge. On appeal, the estate maintains that the trial court should not have instructed the jury on contributory negligence. We conclude that the evidence does not support a finding that Lemon's failure to return, as allegedly directed by Hodge, could have been a proximate cause of her death and that, therefore, the trial court erred in instructing the jury on contributory negligence. Accordingly, we reverse, and remand for a new trial.


Lemon was a 40-year-old accountant residing and practicing in Lincoln, Nebraska, in 1989; she died on May 17, 1995, as the result of breast cancer. On September 26, 1989, Lemon contacted Hodge's office and reported to his nurse that the night before, she had found a hard, marble-sized lump in the outer middle portion of her left breast. Hodge, an obstetrician-gynecologist (OB-GYN), examined her on October 5, 1989.

At trial, Hodge could not specifically recall the visit and testified that he had only a vague recollection of Lemon. Hodge's procedure during this visit was reconstructed from his testimony about his examination of Lemon, from the records he and his staff made at the time of the examination, and from testimony about his usual practices. Hodge testified that upon examining Lemon on October 5, 1989, he found a 1-centimeter marble-sized lump. Because Lemon was menstruating, Hodge suspected that the lump was a cyst. Hodge ordered a mammogram, which was performed by a radiologist on October 9. The radiologist's report stated that the breast was "[n]egative bilateral" and that the "[p]alpable mass must still be evaluated on a clinical basis." Hodge testified that x-ray reports frequently contain this direction and that he asked Lemon to return for reevaluation.

Hodge further testified that Lemon returned for a second visit on October 26, 1989, and that he reexamined her. Hodge's office notes reflect Hodge's impression that Lemon's lump was "vague now, can't hardly feel." Hodge testified that the condition he found at that time did not disclose a definite area to either aspirate or biopsy, because when he described it as vague, he meant, "I can't hardly feel it."

Lemon's deposition was introduced at trial. By this deposition, she testified that when she saw Hodge on October 26, 1989, he told her that "the results were negative, of the mammogram. And that he didn't see any further followup at that time; to see him in a couple of months." Hodge testified, "Um, I would have said, we need to check this in two months and make an appointment and tell the girls out front that we need an appointment to check in two months." Lemon testified that she asked Hodge what she should be watching for "in this period of time" and that he told her that if the lump changed in size or became painful or sensitive to "the touch," she should notify him. Lemon also testified that when she left the office that day, she had no further anxiety and that she felt she had nothing to worry about unless there was a change in the size or sensitivity of the lump. She continued to personally check her breast "often." She also testified that on previous occasions involving an appointment for a pap smear or other concerns, Hodge's office initiated the appointment by waiting for her with an appointment card as she came out of his office or by calling her on the telephone. This practice was not followed on this occasion.

In late April, Lemon began to feel pain in her breast, and she called Hodge's office on April 27, 1990. She returned for further examination on May 21. Upon examination, Hodge noted, "still lump, same she says." Hodge then referred Lemon to a surgeon for a biopsy. On June 4, 1990, the surgeon removed a 1.5-centimeter mass, which was found to be malignant. Lemon underwent a modified radical mastectomy, radiation therapy, chemotherapy, and cell harvesting for a possible bone marrow transplant. Lemon died of breast cancer on May 17, 1995; her personal representative, Andrea Hoffart, maintains this action.

At trial, expert witnesses were introduced both by Lemon's estate and by Hodge on the issues of negligence and contributory negligence. Most of the controversy concerned whether the alleged negligence of Hodge or the alleged contributory negligence of Lemon was a proximate cause of Lemon's death. The estate called two OB-GYN's, Dr. Manford M. Oliphant, Jr., and Dr. William H. Hindle, and an oncologist, Dr. William A. Robinson, to testify as expert witnesses. Dr. Guy M. Schropp, an OB-GYN, and Dr. David W. Bouda, an oncologist, testified for Hodge. Since none of the witnesses' qualifications were questioned, we shall not summarize their qualifications.

Oliphant testified with a reasonable degree of medical certainty that Hodge had failed to meet the standard of care on both October 5 and 26, 1989. Oliphant testified that on both occasions, Hodge needed to determine whether the mass in Lemon's breast was cancerous, and that in order to do this, the standard of care required Hodge to aspirate or biopsy the mass. Oliphant also testified that in October, the lump was "a solid cancer," which stays the same size or grows larger, and that Hodge was incorrect when he noted that the lump had become smaller on October 26.

Oliphant further testified that if Hodge had wanted Lemon to come back in 2 months, Hodge had the responsibility to make sure Lemon made an appointment and that she returned as directed.

Hindle agreed that Hodge had not met the standard of care. He testified that on October 5 and 26, 1989, Lemon had "an undiagnosed dominant breast mass which in all cases may possibly be a cancer so it [was] imperative" that it be definitively diagnosed by "[a]spiration or biopsy." Hindle testified that the x-ray report referring to a "palpable mass" meant there was something in Lemon's breast which could be identified and which needed to be evaluated clinically. Hindle also testified that a doctor cannot tell whether a lump is cancerous by feeling it and that waiting 2 months, or "[w]atchful waiting[,] is not appropriate." Hindle testified that there was no evidence in the record that Lemon had a cyst on October 5 which got smaller by October 26 and then went away, and that then the cancer appeared, as claimed by Hodge.

Robinson, the oncologist, testified that in June 1990, Lemon's cancer had spread to 4 of 16 lymph nodes. Based on this fact and the size of Lemon's tumor, Robinson testified that in his opinion, had the...

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3 cases
  • Hoffart v. Hodge
    • United States
    • Nebraska Court of Appeals
    • 18 Abril 2000
    ...in this court of this medical malpractice action involving the diagnosis of breast cancer. In our earlier opinion, Hoffart v. Hodge, 5 Neb.App. 838, 567 N.W.2d 600 (1997), we reversed a jury verdict for the defendant, Dr. Dennis L. Hodge. Hodge had offered evidence to support his claim that......
  • Petersen v. Bitters
    • United States
    • U.S. District Court — District of Nebraska
    • 2 Noviembre 2018
    ...See Neb. Rev. Stat. § 25-21,185.08 (defining noneconomic damages available where contributory negligence is a defense); Hoffart v. Hodge, 567 N.W.2d 600, 607 (Neb. 1997) (finding contributory negligence can apply in professional negligence cases). Moreover, after dismissing the negligence c......
  • Gernstein v. Allen, A-00-233.
    • United States
    • Nebraska Court of Appeals
    • 29 Mayo 2001
    ...the evidence is insufficient to sustain an affirmative finding is generally prejudicial and results in a new trial. Hoffart v. Hodge, 5 Neb.App. 838, 567 N.W.2d 600 (1997). In the present case, in his motion for new trial-reconsideration, Allen asserted that the court's decision, in grantin......

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