Maycock v. Hoody, S–09–944.
| Decision Date | 24 June 2011 |
| Docket Number | No. S–09–944.,S–09–944. |
| Citation | 799 N.W.2d 322,281 Neb. 767 |
| Parties | David A. MAYCOCK, as Special Administrator of the Estate of Marty A. Maycock, deceased, appellant,v.Steve HOODY, M.D., et al., appellees. |
| Court | Nebraska Supreme Court |
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence.
2. Administrative Law: Statutes: Appeal and Error. To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.
3. Statutes. Statutes relating to the same subject matter will be construed so as to maintain a sensible and consistent scheme, giving effect to every provision.
4. Limitations of Actions: Mental Competency: Words and Phrases. A person with a mental disorder under Neb.Rev.Stat. § 25–213 (Reissue 2008) is one who suffers from a condition of mental derangement which actually prevents the sufferer from understanding his or her legal rights or from instituting legal action. A mental disorder within the meaning of § 25–213 is an incapacity which disqualifies one from acting for the protection of one's rights.
5. Appeal and Error. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.
Terry K. Barber, Lincoln, of Barber & Barber, P.C., L.L.O., for appellant.Michael F. Kinney and Kathryn J. Cheatle, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee Nicole Liebentritt.David L. Welch, Omaha, and Ashley E. Dieckman, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellee Alegent Health.Michael J. Mooney, of Gross & Welch, P.C., L.L.O., Omaha, for appellee Steve Hoody.Mark E. Novotny and William R. Settles, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees James Frock et al.HEAVICAN, C.J., GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.MILLER–LERMAN, J.
This case involves a complaint alleging medical malpractice and wrongful death filed under the Nebraska Hospital–Medical Liability Act (NHMLA) by the appellant, David A. Maycock (Maycock), in his capacity as special administrator of the estate of Marty A. Maycock, against various doctors and against Alegent Health, doing business as Bergan Mercy Medical Center, based on their treatment of Marty prior to and until his death on November 22, 2005. One doctor named in the complaint was not served, and any reference to “doctors” in this opinion does not pertain to him.
The district court dismissed the case against certain doctors based on their unrebutted affidavit evidence showing that they had met the standard of care. Alegent Health was also dismissed. These rulings were affirmed by the Court of Appeals, and those doctors and Alegent Health are not involved in the proceeding now before this court.
At the district court, doctors James Frock, Louis Violi, Sylvia Rael, and James Bowers (the doctors) moved for summary judgment on the sole basis that the claims against them were barred by the statute of limitations. The district court granted the motion and dismissed the claims against the doctors based on the professional negligence 2–year statute of limitations found at Neb.Rev.Stat. § 25–222 (Reissue 2008). It is this ruling involving the doctors that is the subject of this case on appeal. The Court of Appeals determined, inter alia, that there were genuine issues of material fact whether Marty was under a mental disorder as described in Neb.Rev.Stat. § 25–213 (Reissue 2008) at the time he was treated by the doctors and that therefore, pursuant to § 25–213, the statute of limitations was tolled until the removal of his mental disorder. In a memorandum opinion filed August 3, 2010, the Court of Appeals reversed the summary judgment which had been entered in favor of the doctors. See Maycock v. Hoody, No. A–09–944, 2010 WL 3137338 (Neb.App. Aug. 3, 2010) (). The doctors petitioned for further review, which we granted. Because we agree with the reasoning of the Court of Appeals, we affirm.
Maycock brought this suit on behalf of his son, Marty, against the doctors; against doctors Nicole Liebentritt, Steve Hoody, and Thomas Connolly; and against Alegent Health, alleging that they committed medical malpractice in caring for Marty on November 17, 2005, until his death on November 22 and caused Marty's wrongful death. The district court granted summary judgment in favor of Liebentritt, Hoody, and Connolly after it concluded that these defendants had established by their affidavit evidence that they had met the requisite standard of care and Maycock had failed to rebut their prima facie case. Alegent Health was also dismissed. The Court of Appeals affirmed these decisions. Maycock petitioned for further review of these rulings, and we denied his petition.
The district court also dismissed the claims against the doctors as time barred based on the professional negligence 2–year statute of limitations found at § 25–222. On appeal, the Court of Appeals concluded, inter alia, that the 2–year statute of limitations under the NHMLA, Neb.Rev.Stat. § 44–2828 (Reissue 2010), controlled and that there were genuine issues of material fact regarding whether this 2–year period had been tolled pursuant to § 25–213 for the period during which Marty was suffering from a “mental disorder.” The Court of Appeals reversed the summary judgment in favor of the doctors, and it is this decision which is before us on further review.
The facts relevant to the issues on further review are recited below. On November 17, 2005, Frock, a board-certified nephrologist, saw Marty for a consultation at the request of Hoody, a defendant who has been dismissed from this case. In Frock's consultation report, he indicates that “[u]pon further questioning of [Marty] he did admit to drinking almost a whole bottle of antifreeze after it was noted that the [nasogastric] aspirate looked like antifreeze.” Frock's diagnostic impression of Marty was “[s]uspected antifreeze overdose with oliguria [diminished urine production], acute renal failure, severe increased anion gap metabolic acidosis and hyperkalemia.” Other records from November 17 indicated that at 12:35 p.m., Marty was “continu[ing] to have no verbal response to questions when asked and moving arms about in restless manner.” The nurse's notes on November 18 at 12:05 a.m. reported that Marty was “able to identify his name” but “[s]till mumble[d] unintelligibly when asked his location or the year.” On November 18 at 8 a.m., the nurse's notes stated, On November 18 at 3:05 p.m., Marty was intubated by Bowers, and ventilation was started at 3:19 p.m.
There is evidence in the record that when Liebentritt saw Marty on November 19 and 20, 2005, he “was, at all times ..., unconscious [during her observations].” From the time Liebentritt saw Marty on November 19 until his death, the basic entry in the nurse's notes at approximately hourly intervals was “assessment essentially unchanged.” Doctors' notes state that on November 22, Marty was “in septic shock and comatose with some jerking movements of his head and legs.” Marty died on November 22 at 5:30 p.m.
Given the Thanksgiving holiday, this case, filed on Monday, November 26, 2007, was effectively brought by Maycock on Friday, November 22. In their affidavits in support of their motions for summary judgment, the doctors stated that the last dates they provided treatment to Marty were as follows: November 17 for Frock and Violi, November 18 for Rael, and November 21 for Bowers. Given this evidence, the treatments provided by the doctors were rendered more than 2 years prior to the November 22, 2007, date on which the complaint was effectively filed and the cases against the doctors would appear to be time barred in the absence of tolling. The Court of Appeals determined that there were questions of fact whether Marty suffered from a mental disorder which permits tolling under § 25–213, and it reversed the summary judgment entered in favor of the doctors. The doctors petitioned for further review of the Court of Appeals' decision, and we granted further review.
The doctors claim, summarized and restated, that the Court of Appeals erred when it (1) concluded that Maycock's claim was subject to the tolling provisions found in § 25–213; (2) concluded that there were genuine issues as to when Marty was suffering from a mental disorder, where Maycock failed to present expert testimony to prove that Marty was suffering from a mental disorder at any time during his hospitalization; and (3) did not affirm the summary judgment based on the doctors' interrogatory answers.
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all favorable inferences deducible from the evidence. Schlatz v. Bahensky, 280 Neb. 180, 785 N.W.2d 825 (2010).
[2] To the extent that the meaning and interpretation of statutes and regulations are involved, questions of law are presented, in connection with which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. Davio v. Nebraska Dept. of Health & Human Servs., 280 Neb. 263, 786 N.W.2d 655 (2010).
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