Ourada v. Cochran, 87-973

• Decision Date: 22 December 1989
• Docket Number: No. 87-973,87-973
• Court: Nebraska Supreme Court
• Parties: Rieda OURADA, Appellant and Cross-Appellee, v. Robert COCHRAN II, M.D., and Nebraska Methodist Hospital, Appellees and Cross-Appellants.

Page 211

449 N.W.2d 211

234 Neb. 63

Rieda OURADA, Appellant and Cross-Appellee, v. Robert COCHRAN II, M.D., and Nebraska Methodist Hospital, Appellees and Cross-Appellants.

No. 87-973.

Supreme Court of Nebraska.

Dec. 22, 1989.

Syllabus by the Court

1. Malpractice: Limitations of Actions: Time. In medical malpractice cases a period of limitations or repose begins to run when the treatment rendered after and relating to the act or omission complained of is completed.

2. Malpractice: Notice: Jurisdiction. The provision in Neb.Rev.Stat. § 44-2840(4) (Reissue 1988) that requires, upon waiver of the panel review, service of a copy of a petition or complaint upon the Director of Insurance at the time the action is filed in court is merely a notice requirement and neither confers nor denies jurisdiction of the court.

3. Malpractice: Negligence: Jury Instructions: Appeal and Error. In a medical malpractice action where the plaintiff's evidence establishes a prima facie case of negligence against a physician for failure to use methods of procedure in accordance with the standard of care, it is prejudicial error to give the jury an instruction from which the jury may infer that such evidence, standing alone, does not establish that the physician used an improper method of procedure.GENERATED DIVIDER LINE OF TYPE 01

Ronald J. Palagi of Law Offices of Ronald J. Palagi, P.C., Omaha, and Martin E. Spellman of Spellman Law Offices, for appellant and cross-appellee.

Patrick G. Vipond of Sodoro, Daly & Sodoro, Omaha, for appellees and cross-appellants.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ.

WHITE, Justice.

Rieda Ourada, the plaintiff below, appeals from a jury verdict in favor of Robert Cochran II, M.D., and Nebraska Methodist Hospital, the defendants below, in her action for medical negligence.

Appellant Ourada assigns as error (1) that the trial court gave several instructions which were prejudicial to the appellant and misleading to the jury and (2) that the verdict is not supported by the evidence. The appellees have cross-appealed, claiming that the trial court erred in failing to find that the action was barred by the statute of limitations and in failing to dismiss for lack of subject matter jurisdiction. We reverse and remand on the basis that instruction No. 13 was prejudicially erroneous.

The record discloses the following facts. Ourada was injured in a sledding accident on December 2, 1983, in which she suffered a fracture of the first lumbar vertebra. She was taken to the emergency room at Nebraska Methodist Hospital and was subsequently admitted there as a patient under the care of Dr. Cochran. On December 9, an operation to decompress and stabilize Ourada's spine was performed by Drs. Cochran, Hacker, and Waters.

Appellant alleges negligent care, diagnosis, and treatment by the appellees from December 2, the time that appellant entered the emergency room, until the morning of December 9, the day on which the operation was performed. There is no allegation of negligence regarding the operation itself, nor regarding any time thereafter. Appellant alleges that as a result of appellees' negligence she developed permanent cauda equina syndrome, which causes her to suffer loss of bladder control, numbness, weakness in her legs, and sexual dysfunction.

We will first examine appellees' cross-appeal. Appellees were both subject to the provisions of the Nebraska Hospital-Medical Liability Act, Neb.Rev.Stat. §§ 44-2801 et seq. (Reissue 1988). The act provides that a medical review panel shall review all malpractice claims against those covered by the act in advance of filing such actions. However, § 44-2840(4) allows for waiver of the panel:

The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court. If the claimant waives the panel review, the claimant shall serve a copy of the petition or complaint upon the director [of insurance] personally or by registered or certified mail at the time the action is filed in court.

Appellant chose to waive the panel and filed her petition with the court on December 6, 1985. A copy of the petition, postmarked December 10, 1985, was received by the Department of Insurance on December 11.

In medical malpractice cases a period of limitations or repose begins to run when the treatment rendered after and relating to the act or omission complained of is completed. Barry v. Bohi, 221 Neb. 651, 380 N.W.2d 249 (1986). Therefore, the statute of limitations began to run on December 9, 1983. Appellees admit this in their brief. Appellant filed her petition 3 days before the 2-year statute ran, thus conferring subject matter jurisdiction on the district court.

Appellees contend that appellant is barred by her failure to serve a copy of the petition on the director of the Department of Insurance by ...