Long v. Hacker
| Decision Date | 05 August 1994 |
| Docket Number | No. S-91-1207,S-91-1207 |
| Citation | 246 Neb. 547,520 N.W.2d 195 |
| Parties | Robert S. LONG, M.D., Appellant, v. Robert J. HACKER, M.D., Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jury Instructions. A trial court must eliminate all matters not in dispute and
submit to the jury only the controverted questions of fact upon which the verdict must depend.
2. Jury Instructions. Jury instructions should be confined to the issues presented by the pleadings and supported by the evidence.
3. Jury Instructions: Appeal and Error. A jury instruction which misstates the issues and has a tendency to confuse the jury is erroneous.
4. Jury Instructions. It is more than mere probability that an instruction on a matter not an issue in the litigation distracts a jury in its effort to answer legitimate, factual questions raised during trial.
5. Appeal and Error. Generally, an appellate court will dispose of a case on the theories which were presented to the trial court.
6. Jury Instructions: Appeal and Error. The instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.
7. Jury Instructions: Appeal and Error. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal absent plain error.
8. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
9. Appeal and Error. Plain error may be asserted for the first time on appeal or be noted by the appellate court on its own motion.
10. Malpractice: Physicians and Surgeons: Independent Contractor: Negligence: Liability: Words and Phrases. The duty of care owed by a physician is nondelegable, which means that an employer of an independent contractor, by assigning work consequent to a duty, is not relieved from liability arising from the delegated duties negligently performed. As a result of a nondelegable duty, the responsibility or ultimate liability for proper performance of a duty cannot be delegated, although actual performance of the task required by a nondelegable duty may be done by another.
11. Jury Instructions. The trial court, whether requested or not, has a duty to instruct the jury on issues presented by the pleadings and the evidence.
12. Negligence. The doctrine of res ipsa loquitur is that the accident and resulting injuries are such that in the ordinary course of things the accident does not happen if those who have the exclusive management or control of the instrumentality or the agency proximately causing such accident or injuries use proper care.
13. Negligence. When applicable, the essence of the doctrine of res ipsa loquitur is that an inference of negligence arises without further proof and that the facts speak for themselves.
14. Negligence. If specific acts of negligence are alleged or there is direct evidence of the precise cause of the accident, the doctrine of res ipsa loquitur is not applicable. The doctrine is applicable only where the plaintiff is unable to allege or prove the particular act of negligence which caused the injury.
15. Negligence: Presumptions. An unsuccessful attempt on the part of the plaintiff to show the specific negligent act which caused his injury does not weaken or displace the presumption of negligence on the part of the defendant arising from the facts of the case by virtue of the rule of res ipsa loquitur.
16. Negligence. The introduction of some evidence which tends to show the specific acts of negligence on the part of the defendant, but which does not purport to furnish full and complete explanation of the occurrence, does not destroy the inferences which are consistent with the evidence and so does not deprive the plaintiff of the benefit of res ipsa loquitur.
Steven J. Riekes and Kevin R. Hopp, of Richards, Riekes, Brown & Zabin, P.C., for appellant.
Patrick G. Vipond, David J. Schmitt, and Raymond E. Walden, of Kennedy, Holland, DeLacy & Svoboda, for appellee.
Plaintiff-appellant, Robert S. Long, M.D., brought a medical malpractice action against defendant-appellee, Robert J. Hacker, M.D., a neurosurgeon, in the district court for Douglas County. Hacker had performed a laminectomy on Long, and it is uncontested that Hacker operated on the wrong vertebrae of Long's spine. This miscalculation was apparently due to the misinterpretation of an x ray. The jury found in favor of Hacker. The Nebraska Court of Appeals affirmed the judgment of the district court. Long v. Hacker, 93 NCA No. 42, case No. A-91-1207, 1993 WL 439952 (). Long filed a petition for further review by this court on several grounds. Long contends that the Court of Appeals erred in finding (1) that the instructions to the jury on alternative methods of surgical procedure were properly given, since alternative procedures to locate the operation site were not in issue; (2) that the trial court properly instructed on "efficient intervening cause," since the surgeon was responsible for any misreading of x rays by the radiologist; and (3) that the verdict was not clearly wrong. We reverse, and remand the cause for a new trial.
In October 1987, Long experienced a sudden onset of severe back and leg pain. Long first met with Hacker, a neurosurgeon, in December 1987. Hacker diagnosed Long with spinal stenosis and nerve root entrapment. Spinal stenosis is a narrowing of the spinal canal which can eventually cause pressure on the nerve roots. Nerve root entrapment is the squeezing of the nerve root as it comes out of the spine.
Hacker initially performed a diskectomy, which failed to provide significant relief from the pain. Hacker recommended that Long undergo a laminectomy. In a laminectomy, bony elements of the component parts of the vertebrae, i.e., spinous processes, facets, and laminae, are removed. The laminectomy was to be performed at the L4-5 level, i.e., the segment of the spine located between the fourth and fifth lumbar vertebrae. The surgery was performed on January 14, 1988. It is uncontroverted that Hacker operated at the L3-4 level of Long's spine, rather than at L4-5 as intended.
According to the record, the procedures used by Hacker to localize the appropriate level at which to operate were as follows: Hacker approximated the correct level at which L4-5 would be found by locating anatomical landmarks such as scars from the diskectomy and puncture marks from a myelogram. Hacker made an incision at the spinal area approximated as L4-5, where he visually checked for abnormalities and probed the structures with his finger. Thereafter, a needle was placed at what Hacker believed to be the L4-5 level and an x ray was taken of that area. The purpose of this procedure is to ensure, before any important spinal structures are removed, that the surgeon is indeed at the appropriate level of the spine. The needle in the x ray serves as a reference landmark in relation to the desired area of the spine to be operated upon.
After the x ray was processed, it was taken to the operating room by an x-ray technician and placed on a view box. Hacker found the x ray too dark to allow him to see the structures he needed to see in order to localize the operative site. Hacker stated " 'That film's awfully dark' " and asked " 'Where are we?' " An x-ray technician then responded, " 'The radiologist says you're at [L]4-5.' " Based upon that statement by the technician, Hacker then performed the laminectomy at what proved to be L3-4.
After the surgery, Long continued to suffer from back pain. Subsequently, he discovered the operation had been performed at the L3-4 level, rather than at the intended
L4-5. Long initiated a medical malpractice action against Hacker in the district court. The jury found in favor of Hacker. The Court of Appeals affirmed the district court's judgment in favor of Hacker. We granted Long's petition for further review.
Long claims the Court of Appeals erred in finding that (1) the instructions to the jury on alternative methods of surgical procedure were properly given, (2) the trial court properly instructed on efficient intervening cause, and (3) the verdict was supported by sufficient evidence.
Long first claims that the Court of Appeals' finding that the jury instructions on alternative methods of surgical procedure were proper is in error. The questioned instruction on alternative methods of surgical procedures stated:
If, among physicians in the community or similar communities more than one method of procedure is recognized as proper, it is not negligence for a doctor to follow a certain method if the method actually employed was one of several which met the required standard of care. However, it is negligence if the method actually employed by the doctor failed to meet the required standard of care.
Long argues that the instruction erroneously implies that more than one method of localization was at issue, when in fact, the only issue was whether Hacker met the required standard of care in implementing the particular method chosen. The Court of Appeals found that the instruction properly stated the law and "clearly indicates that, when choosing among a number of alternative methods, a physician must meet the required standard of care in his or her performance of the method selected." Long v. Hacker, 93 NCA No. 42 at 30, case No. A-91-1207 (...
To continue reading
Request your trial
-
Reavis v. Slominski, S-94-288
...presented to the trial court. Sunrise Country Manor v. Neb. Dept. of Soc. Servs., 246 Neb. 726, 523 N.W.2d 499 (1994); Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994). Restated, Slominski argues that Reavis had to prove that Slominski knew she lacked the capacity to consent in order for......
-
Breeden v. Anesthesia West, PC
...owed by a physician to his or her patient is nondelegable. Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997); Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994); Swierczek v. Lynch, 237 Neb. 469, 466 N.W.2d 512 In Hawkes, supra, this court held that "the surgeon in charge" of performing......
-
Kellner v. Kellner
...a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. Id.; Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994); Katskee v. Nevada Bob's Golf of Neb., 238 Neb. 654, 472 N.W.2d 372 In this case, the order of sale gives Nancy the broad......
-
Stahlecker v. Ford Motor Co.
...cause of the accident, the doctrine of res ipsa loquitur is not applicable. Bargmann v. Soil Oil Co., supra; Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994). Because the Stahleckers have alleged specific acts of negligence on the part of both Ford and Firestone, the doctrine of res ipsa......