Schindler v. Walker, S-97-073
| Decision Date | 23 April 1999 |
| Docket Number | No. S-97-073,S-97-073 |
| Citation | 256 Neb. 767,592 N.W.2d 912 |
| Parties | Mary E. SCHINDLER, Individually and as Personal Representative of the Estate of Gerald R. Schindler, Appellant and Cross-Appellee, v. Richard WALKER, M.D., Appellee and Cross-Appellant, and Douglas M. Monasebian, M.D., et al., Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Jurors. The decision to retain or reject a juror is a matter of discretion with the trial court.
2. Trial: Jurors: Appeal and Error. The trial court's decision to retain or reject a juror is reviewed for an abuse of discretion.
3. Judges: Words and Phrases. An abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
4. Appeal and Error. Appellate review of a district court's use of inherent power is for an abuse of discretion.
5. Trial: Appeal and Error. Generally, an appellate court will dispose of a case on the theories which were presented in the trial court.
6. Rules of the Supreme Court: Pretrial Procedure. Neb.Ct.R. of Discovery 26(e) (rev.1996) provides that a party has a duty to seasonably supplement his or her discovery responses as to any question addressed to the identity of an expert and the subject matter and substance of an expert's testimony and as to any prior responses that he or she knows were incorrect when made or, although correct when made are no longer true, and under the circumstances, the failure to amend would be in substance a knowing concealment.
7. Rules of the Supreme Court: Pretrial Procedure.. As a general rule, the range of sanctions imposed for violations of the discovery rules is a matter within the discretion of the trial court.
8. Courts: Pretrial Procedure: Evidence. While there is no applicable rule or statute governing a trial court's exclusion of evidence, a trial court's exclusion of evidence can be sustained as an exercise of a trial court's inherent powers.
9. Courts: Pretrial Procedure. A district court's inherent powers include the broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial; without such inherent power, a court would be powerless to deal with discovery violations that do not specifically involve a court order.
10. Courts. When rules alone do not provide courts with sufficient authority to protect their integrity and prevent abuses of
the judicial process, the courts' inherent power fills the gap.
11. Courts: Appeal and Error. Appellate review of a district court's use of inherent power is for an abuse of discretion.
12. Appeal and Error. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.
13. Appeal and Error.. Errors which are argued but not assigned will not be considered by an appellate court.
Daniel B. Cullan and Paul W. Madgett, of Cullan & Cullan, Omaha, for appellant.
John P. Mullen and Lisa M. Meyer, of Gaines, Mullen, Pansing & Hogan, Omaha, for appellees University of Nebraska Medical Center and Monasebian.
Joseph F. Bataillon and Kelly K. Brandon, of Sodoro, Daly & Sodoro, Omaha, for appellee Walker.
William M. Lamson, Jr., and William R. Settles, of Lamson, Dugan & Murray, Omaha, for appellee Patil.
This is an action for wrongful death as a result of alleged medical negligence and for negligent infliction of emotional distress brought by appellant, Mary E. Schindler (Schindler), as personal representative of the estate of Gerald R. Schindler, and Schindler, individually, against appellees Richard Walker, M.D.; Douglas M. Monasebian, M.D.; Arun Angelo Patil, M.D.; and the University of Nebraska Medical Center (UNMC) (collectively appellees) for failure to properly treat a C1 neck fracture sustained by Gerald following a diving accident at an Omaha swimming pool. We affirm.
On July 10, 1992, Schindler and her husband, Gerald, and their children were swimming at the Field Club swimming pool in Omaha. Gerald dove into the pool and hit his head, resulting in a neck injury. Gerald remained conscious, walked himself to the car, and was driven to the hospital. Gerald arrived at UNMC conscious and alert, and spoke with the treating staff in the emergency room concerning the diving accident.
In the emergency room, Gerald was treated by Walker. Walker ordered X rays and diagnosed Gerald's injury as a "Jefferson fracture" of his neck. Walker contacted Monasebian, a resident in the neurosurgery department, for a neurological opinion. Monasebian conducted a neurological examination and had Gerald admitted to a patient room in the hospital. Monasebian then contacted Patil for another neurological opinion.
After being admitted, Gerald became drowsy and dozed off. According to Schindler's testimony, Gerald was a restless sleeper. As Gerald fell asleep, he started moving his arms and legs, and family members attempted to hold him still to prevent movement. Gerald then stopped breathing. After being revived, he was taken to the intensive care unit, where it was concluded that he had suffered a stroke. Gerald remained alive on respirators for approximately 1 week before he died.
Walker is a medical doctor in the emergency department at UNMC and is also an assistant professor in the department of surgery. Patil is a neurosurgeon and a full-time professor of neurosurgery at UNMC. Monasebian is described as a resident in the neurosurgery department and, therefore, as a resident, is employed by UNMC.
Juror David Smith is an associate professor of pharmacology employed at UNMC. Smith said he did not have a professional relationship with Walker, Patil, or Monasebian, but does serve on committees with physicians at UNMC. Smith said he could be a fair and impartial juror.
In Schindler's fifth amended petition, which the case proceeded on, she alleged that appellees had deviated from the standard of
care by failing to properly stabilize and protect Gerald's spinal cord. On this basis, Schindler sought recovery for wrongful death and negligent infliction of emotional distress.
Pursuant to Neb.Rev.Stat. § 81-8,214 (Reissue 1996) of the State Tort Claims Act (Act), Schindler's claims against UNMC and Monasebian were tried to the court. Schindler's claims against Walker and Patil were tried to a jury. After trial, the court found in favor of UNMC and Monasebian on Schindler's wrongful death claim and the jury found in favor of Walker and Patil on both of Schindler's claims. The trial court, however, found in favor of Schindler and against UNMC on Schindler's negligent infliction of emotional distress claim and awarded Schindler $15,000.
Schindler filed a motion for new trial which was overruled by the trial court. Schindler appealed the verdicts rendered against her, contending that the trial court erred in failing to remove certain potential jurors from the jury pool, erred in disallowing testimony concerning an autopsy, erred in failing to give a requested instruction concerning missing X rays, and erred in denying Schindler's motion for new trial. The Nebraska Court of Appeals, in Schindler v. Walker, 7 Neb.App. 300, 582 N.W.2d 369 (1998), found no merit to any of Schindler's assigned errors and affirmed the judgments entered against Schindler.
UNMC cross-appealed, challenging the portion of the judgment by the trial court in favor of Schindler on the allegation of negligent infliction of emotional distress. The Court of Appeals declined to address the merits of UNMC's cross-appeal because UNMC failed to comply with the procedural rules for bringing a cross-appeal. We granted Schindler's and UNMC's petitions for further review.
The decision to retain or reject a juror is a matter of discretion with the trial court. State v. Krutilek, 254 Neb. 11, 573 N.W.2d 771 (1998). Thus, the trial court's decision to retain or reject a juror is reviewed for an abuse of discretion. Id.
An abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id.
Appellate review of a district court's use of inherent power is for an abuse of discretion. See Roemer v. Maly, 248 Neb. 741, 539 N.W.2d 40 (1995).
Schindler assigns that the Court of Appeals erred in concluding that the trial court did not abuse its discretion when it (1) failed to strike juror Smith, a coemployee of Walker and Patil and an employee of UNMC, from the venire; (2) did not allow Schindler's expert witness, Dr. Matthias I. Okoye, to testify during Schindler's case in chief about an autopsy; and (3) did not allow Okoye to testify in rebuttal after appellees had offered a defense which had been scientifically disproved by Okoye's autopsy.
Restated, UNMC assigns that the Court of Appeals erred in (1) refusing to address the merits of UNMC's cross-appeal because UNMC failed to comply with Neb.Ct.R. of Prac. 9D(1) and (4) (rev.1996), and (2) failing to find plain error existed in regard to the trial court's award of $15,000 for negligent infliction of emotional distress in the absence of any finding of negligence against UNMC and the absence of severe emotional distress.
We have carefully examined the record and, particularly, the testimony of Walker and Patil on the issue of their employment. An examination of the testimony of Walker on direct examination shows the following:
Q. After you completed your training in emergency medicine, where did you--where did you go?
A. I came back to Omaha.
Q. And started practicing where?
A. At St. Joseph...
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