McLaughlin v. Hellbusch

• Decision Date: 03 January 1997
• Docket Number: No. S-95-177,S-95-177
• Citation: 251 Neb. 389,557 N.W.2d 657
• Parties: Rebecca Dau McLAUGHLIN, Appellant, v. Leslie C. HELLBUSCH, M.D., Appellee.
• Court: Nebraska Supreme Court

Page 657

557 N.W.2d 657

251 Neb. 389

Rebecca Dau McLAUGHLIN, Appellant, v. Leslie C. HELLBUSCH, M.D., Appellee.

No. S-95-177.

Supreme Court of Nebraska.

Jan. 3, 1997.

Syllabus by the Court

1. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from instructions given or refused, 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 evidence, there is no prejudicial error necessitating reversal.

2. Jury Instructions: Pleadings: Evidence. As a general matter, a litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence.

3. Negligence: Jury Instructions: Proximate Cause. Irrespective of the pleadings, if the evidence is such that a jury could find that the separate independent negligent acts of more than one person combined to proximately cause the same injury or damages, the jury is to be instructed that each such act or omission is a proximate cause and that each such person may be held responsible for the entire injury or omission, even though some may have been more negligent than others.

4. Jury Instructions: Pleadings: Evidence: Appeal and Error. A trial court has the duty to instruct the jury on the issues presented by the pleadings and evidence, whether requested to do so or not, and a failure so to do constitutes prejudicial error.

5. Jury Instructions: Case Overruled. To the extent that Hopwood v. Voss, 174 Neb. 304, 117 N.W.2d 778 (1962), may be read to be inconsistent with Weiseth v. Karlen, 206 Neb. 724, 295 N.W.2d 103 (1980), with respect to when a trial court must instruct with respect to concurrent causes, it is hereby specifically overruled.

6. Jury Instructions: Appeal and Error. It is not error to refuse to give a requested instruction if the substance of the request is included in the instructions given.

7. Judgments: Appeal and Error. On questions of law, a reviewing court has an obligation to reach its own conclusions independent of those reached by the lower courts.

8. Jurisdiction: Appeal and Error. As a general matter, after an appeal has been perfected, the trial court is without jurisdiction to hear a case involving the same matter between the same parties.

9. Jurisdiction: Costs: Appeal and Error. After an appeal has been perfected, a trial court lacks jurisdiction to enter an order for costs.

Timothy K. Kelso, of Harris, Feldman, Stumpf Law Offices, Omaha, for appellant.

William M. Lamson, Jr., and David J. Schmitt, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and LIKES, D.J.

CAPORALE, Justice.

I. STATEMENT OF CASE

In this medical malpractice action, the district court, pursuant to verdict, entered judgment in favor of the defendant-appellee, Leslie C. Hellbusch, M.D. The plaintiff-appellant, Rebecca Dau McLaughlin, responded by challenging the judgment in the Nebraska Court of Appeals which, in a memorandum opinion filed July 3, 1996, reversed the district court's judgment and remanded the cause for a new trial. Hellbusch then successfully petitioned for further review by this court, asserting, in summary, that the Court of Appeals wrongly ruled that the district court (1) erred in its instructions to the jury and (2) lacked jurisdiction to award him costs. We now affirm the judgment of the Court of Appeals.

II. BACKGROUND

When McLaughlin did not recover properly from the last of two surgeries performed following two separate knee injuries she sustained a few months apart in her early teens, her then physician, a specialist in sports medicine, referred her to a neurologist, who in turn referred her to Hellbusch, a specialist in neurosurgery. Hellbusch treated McLaughlin from February 15 through August 11, 1988. Upon the initial February 15 consultation, Hellbusch discovered a cyst on McLaughlin's spine and performed surgery, during which he removed some of McLaughlin's backbone in order to drain the cyst. After the cyst recurred a few months later, Hellbusch again performed surgery to remove some of McLaughlin's backbone and the cyst.

McLaughlin, who had a normal spine prior to the surgeries, subsequently developed a progressive kyphosis (an abnormally increased convexity in the curvature of the thoracic spine), a known postsurgical risk in children undergoing the type of surgery Hellbusch performed on McLaughlin. McLaughlin has since undergone corrective surgeries, which have improved but not eliminated the condition.

The evidence as to what McLaughlin and her mother were told about the risks attendant to the Hellbusch surgeries is in conflict, as is the evidence concerning the followup care given and recommended by Hellbusch and other physicians consulted by McLaughlin after the back surgeries. Also in conflict is the extent to which McLaughlin and her mother acted upon the followup care recommended by Hellbusch and other physicians and whether earlier corrective surgery would have produced a better result.

McLaughlin testified that because of the pain resulting from her condition, she cannot engage in heavy lifting, has resigned from employment as a nurse's aide, and has decided not to continue with her planned course of study in physical therapy. McLaughlin also testified that her condition interferes with her current employment as a hotel employee.

III. ANALYSIS

With that background, we turn our attention to the errors Hellbusch assigns to the Court of Appeals, supplying such additional facts as the analyses of those claims require.

1. JURY INSTRUCTIONS

Hellbusch first claims the Court of Appeals incorrectly ruled that the district court erred in failing to instruct the jury, as requested by McLaughlin, concerning the law of concurrent causes and the loss of future earning capacity. Our review of these claims is controlled by the rule that in reviewing a claim of prejudice from instructions given or refused, 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 evidence, there is no prejudicial error necessitating reversal. Sedlak Aerial Spray v. Miller, 251 Neb. 45, 555 N.W.2d 32 (1996).

(a) Concurrent Causes

As a general matter, a litigant is entitled to have the jury instructed only upon those theories of the case which are presented by the pleadings and which are supported by competent evidence. Farmers & Merchants Bank v. Grams, 250 Neb. 191, 548 N.W.2d 764 (1996); Burns v. Metz, 245 Neb. 428, 513 N.W.2d 505 (1994). Here, McLaughlin alleged that Hellbusch's negligence, including his alleged failure to provide appropriate followup care, "was a substantial factor and/or proximate cause" of her injuries and damages; Hellbusch denied the allegation. Thus, neither party specifically alleged that McLaughlin's injuries and resulting damages were caused by the negligence of a third person.

Nonetheless, McLaughlin asserts that, as she requested, she was entitled to a concurrent causes instruction, because there is evidence that her mother knew of her need for followup x rays, asked Hellbusch if McLaughlin could receive such care from her original physician, and then failed to take McLaughlin to that physician. The evidence also suggests that a physician told McLaughlin and her mother that the original physician should continue followup care. In addition, there is evidence that this physician failed to diagnose McLaughlin's condition.

A concurrent causes instruction advises a jury that where the independent negligent acts or omissions of more than one person combine to proximately cause the same injury or damages, each such act or omission is a proximate cause, and each such person may be held responsible for the entire injury or omission, even though some may have been more negligent than others.

In Barry v. Moore, 172 Neb. 57, 108 N.W.2d 401 (1961), Barry, a passenger in an automobile operated by Gitt, pled that Moore's negligence caused a collision between the Gitt and Moore vehicles, and as a result, Barry was injured. Moore pled that he was not negligent and that the collision was caused by Gitt's negligence. Neither party requested an instruction on concurrent causes. We held that " '[t]he trial court has the duty to instruct the jury on issues presented by the pleadings and evidence, whether requested to do so or not, and a failure so to do constitutes prejudicial error,' " id. at 64, 108 N.W.2d at 405, and concluded that the trial court should have given the concurrent negligence instruction. In that regard, we wrote:

[Barry's] claim was based on the broad ground of negligence for which [Moore] was required to respond in damages. If he was guilty of negligence which solely, or in concurrence with Gitt, or which proximately contributed to the accident, [Barry] being in nowise responsible for it, [Barry] was entitled to a recovery of her damages, if any, from him. The jury was entitled to be so informed, and a failure so to do by the court was prejudicial error.

Id.

However, we seem to have confused the issue in Hopwood v. Voss, 174 Neb. 304, 117 N.W.2d 778 (1962). Therein, the plaintiff argued that the district court erred in failing to give a sufficient concurring causes instruction. The court had...