Rice v. Adam
| Decision Date | 13 March 1998 |
| Docket Number | No. S-96-899,S-96-899 |
| Citation | 254 Neb. 219,575 N.W.2d 399 |
| Parties | Christine L. RICE, formerly known as Christine L. Hitzemann, Appellant, v. George M. ADAM, M.D., and Mary Lanning Memorial Hospital, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Jurisdiction: Appeal and Error. The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court.
2. Pleadings. The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made.
3. Actions: Parties: Standing. In determining if a party is the real party in interest, the focus of the inquiry is whether the party has standing to sue because the party has some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.
4. Actions: Parties: Standing. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.
5. Jurisdiction: Words and Phrases. Subject matter jurisdiction is a court's power to hear and determine a case of the general class or category to which the proceedings in question belong and to deal with the general subject involved in the action before the court.
6. Jurisdiction. Parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties.
7. Summary Judgment: Jurisdiction. A summary judgment motion based on jurisdictional grounds is treated as and serves the same purpose as a demurrer on jurisdictional grounds.
8. Pleadings: Summary Judgment: Jurisdiction: Demurrer. For purposes of applying the rule regarding pleadings, a summary judgment motion based on a jurisdictional defect is treated the same as a demurrer based on a jurisdictional defect.
9. Summary Judgment: Jurisdiction: Pleadings. After a summary judgment motion on jurisdictional grounds has been granted, but where there is a reasonable possibility that the jurisdictional defect may be cured by amendment, denying the plaintiff the opportunity to replead is an abuse of discretion.
10. Demurrer: Pleadings. After a demurrer is sustained, leave to amend is to be given, unless it is clear that no reasonable possibility exists that the plaintiff will be able to correct the deficiency.
Daniel J. Thayer, of Lauritsen, Brownell, Brostrom, Stehlik & Thayer, Grand Island, for appellant.
Mark E. Novotny, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee Adam.
Robert W. Wagoner, Grand Island, for appellee Hospital.
Prior to commencing this malpractice action against the defendants, George M. Adam, M.D., and Mary Lanning Memorial Hospital, the plaintiff, Christine L. Rice, formerly known as Christine L. Hitzemann, filed a chapter 7 bankruptcy which was still
pending when Hitzemann commenced this action. The district court sustained the defendants' motion for summary judgment, finding that Hitzemann was not the real party in interest.
The determination of a jurisdictional issue which does not involve a factual dispute is a matter of law which requires an appellate court to reach its conclusions independent from a trial court. State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997).
The decision whether to allow or deny an amendment to any pleading lies within the discretion of the court to which application is made. Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998).
The plaintiff-appellant in this case is Christine L. Rice, who was formerly known as Christine L. Hitzemann. Because the briefs filed herein refer to the plaintiff as Hitzemann, we shall do so also. Hitzemann brought this malpractice action against the defendants-appellees, George M. Adam, M.D., and Mary Lanning Memorial Hospital. On May 5, 1991, Adam performed a diagnostic laparoscopy on Hitzemann at the hospital. Allegedly, Adam was also to have performed a tubal sterilization, but he did not perform the procedure because the hospital did not inform him that Hitzemann had given her consent. After Hitzemann was discharged, Adam allegedly made attempts to inform her of the omission, but he was unable to communicate this information until June 27. On July 24, it was determined that Hitzemann was pregnant and that the date of conception was early to mid-June 1991. On April 10, 1992, Hitzemann filed for bankruptcy. Her lawsuit was filed against the defendants on July 1.
This is the second time that this matter has appeared before us. Hitzemann's original petition alleged that the defendants negligently failed to perform a tubal sterilization procedure she had authorized during her hospitalization in May 1991. The defendants' demurrers to the original petition were sustained on the basis that Hitzemann had failed to properly allege a cause of action for medical malpractice and had failed to properly allege a cause of action for breach of contract.
On appeal, we reversed the judgment and remanded the cause for further proceedings, stating that although the district court had correctly sustained the demurrers, it had erred in dismissing the action without leave to amend, because "it may be possible for the plaintiff to state a cause of action for medical malpractice against the defendants in an amended petition." Hitzemann v. Adam, 246 Neb. 201, 206, 518 N.W.2d 102, 106 (1994). We concluded that damages for prenatal and delivery medical expenses; for emotional distress, loss of wages, pain and suffering, and loss of consortium caused by the failed sterilization, pregnancy, and childbirth; and for any costs associated with a second corrective sterilization procedure, if proved could be recovered.
Hitzemann subsequently filed a third amended petition. In response to this petition, the defendants denied they were negligent and alleged that Hitzemann was contributorily negligent, more than slight in degree, so that her claim was barred as a matter of law.
During discovery, the defendants learned that Hitzemann had filed a chapter 7 bankruptcy on April 10, 1992. Schedule B, which was filed with Hitzemann's petition for bankruptcy, required that she identify "[o]ther contingent and unliquidated claims of every nature," but Hitzemann's claim against the defendants was not listed. The bankruptcy was discharged on July 30.
After learning of the bankruptcy, the defendants moved for summary judgment, and the district court concluded that upon Hitzemann's filing for bankruptcy, all of Hitzemann's assets became the property of the bankruptcy estate. The district court entered summary judgment in favor of the defendants because it concluded that Hitzemann was not the real party in interest and dismissed the action without prejudice so that the real party in interest could file suit.
Hitzemann filed a timely appeal with the Nebraska Court of Appeals, and we moved this case to our docket pursuant to our authority to regulate the caseloads of the Court of Appeals and this court.
In summary, Hitzemann claims the district court erred (1) in finding that this lawsuit should have been listed as an asset on her bankruptcy schedule, (2) in addressing the real-party-in-interest issue on a motion for summary judgment instead of a demurrer, and (3) in not providing Hitzemann with an opportunity to amend her petition to reflect the real party in interest.
We first address the issue of Hitzemann's standing to commence this action against the defendants. The activities which gave rise to Hitzemann's alleged cause of action occurred on May 5, 1991. Hitzemann filed for chapter 7 bankruptcy on April 10, 1992, and subsequently filed this lawsuit on July 1.
In Pappas v. Sommer, 240 Neb. 609, 483 N.W.2d 146 (1992), we noted that the plaintiff's negligence claim against an attorney which accrued prior to the client's bankruptcy filing became the property of the trustee of the bankruptcy estate. We held that the district court had correctly concluded that once the plaintiff filed bankruptcy, she lacked standing to bring the lawsuit in her own name and on her own behalf.
Brief for appellant at 12. In summary, she argues that because wrongful pregnancy was an issue of first impression in Nebraska at the time she filed bankruptcy, she was not required to list the potential lawsuit against the defendants as an asset on her bankruptcy schedule.
We find Hitzemann's claim that her malpractice action was outside the reach of the bankruptcy statutes because she sued under a novel legal theory to be without merit. Although it is true that this court had never decided a wrongful pregnancy action prior to this action, Hitzemann's claim against the defendants is simply one for medical...
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