Snyder v. Contemporary Obstetrics & Gyn.

• Decision Date: 28 January 2000
• Docket Number: No. S-98-483.,S-98-483.
• Citation: 258 Neb. 643,605 N.W.2d 782
• Parties: Shelley M. SNYDER, guardian and next friend of Brianna D. Snyder, a child under 18 years of age, appellee, cross-appellant, and cross-appellee, v. CONTEMPORARY OBSTETRICS & GYNECOLOGY, P.C., and David H. Weir, M.D., appellants and cross-appellees, Lawrence R. Jones, M.D., appellee, cross-appellant, and cross-appellee, and John H. Schulte, M.D., appellee and cross-appellee.
• Court: Nebraska Supreme Court

605 N.W.2d 782

258 Neb. 643

Shelley M. SNYDER, guardian and next friend of Brianna D. Snyder, a child under 18 years of age, appellee, cross-appellant, and cross-appellee, v. CONTEMPORARY OBSTETRICS & GYNECOLOGY, P.C., and David H. Weir, M.D., appellants and cross-appellees, Lawrence R. Jones, M.D., appellee, cross-appellant, and cross-appellee, and John H. Schulte, M.D., appellee and cross-appellee.

No. S-98-483.

Supreme Court of Nebraska.

January 28, 2000.

William M. Lamson, Jr., James W. Ambrose II, and William R. Settles, of Lamson, Dugan & Murray, Omaha, for appellants Contemporary Obstetrics & Gynecology, P.C., and David H. Weir.

Denzel R. Busick, of Luebs, Leininger, Smith, Busick, Johnson, Baack, Placzek & Steele, Grand Island, for appellee Shelley M. Snyder.

Fredric H. Kauffman and Terry R. Wittler, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee Lawrence R. Jones.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

I. FACTUAL BACKGROUND

Shelley M. Snyder, mother of the plaintiff, Brianna D. Snyder, became pregnant with Brianna in 1992. Shelley's obstetrician was defendant David H. Weir, M.D., an employee of defendant Contemporary Obstetrics & Gynecology, P.C. (hereinafter referred to as "COG"). Defendants Lawrence R. Jones, M.D., and John H. Schulte, M.D., were also employees of COG.

Shelley was pregnant for the second time and had suffered from preeclampsia during her first pregnancy. Preeclampsia is a condition in pregnant women which is generally evidenced by elevated blood pressure, protein in the urine, and edema in the face, hands, and feet. Preeclampsia can harm the fetus by causing placental insufficiency and, if left untreated, can progress to eclampsia, which is characterized by coma and convulsive seizures in the pregnant woman.

On December 15, 1992, Shelley saw Weir for a regular office visit. Shelley was experiencing edema in her extremities and had an elevated protein level of 2+ in her urine. Weir ordered that a urine culture be performed to test for a bladder infection.

On December 16, 1992, Shelley went to her job at a local hospital. Shelley had the laboratory technicians at the hospital recheck her urine, and an elevated protein level of 3+ was found. Shelley called COG to check on the results of her tests from the previous day, but was told that the results were not yet available.

On December 17, 1992, a nurse at COG called Shelley and told her that the results of the urine culture had been lost and that Shelley should have the test redone at a facility closer to her home. COG made an appointment for Shelley at a local clinic to have a urine culture performed. However, when Shelley arrived for the appointment, she was told that the clinic was not equipped to perform a urine culture. Shelley told clinic personnel to call COG and inform them that the test could not be performed.

While at the clinic, Shelley was told that Jones wanted the urinalysis results from the hospital on the previous day faxed to him at COG. Shelley was also told that she should have a urine culture done at the hospital, and she had the culture performed at the hospital on December 17, 1992. On December 19, she was informed that the culture was, at that point, negative.

Shelley awoke on the morning of December 21, 1992, with a severe headache. At about 4 a.m., she began vomiting, and her husband, Michael Snyder, telephoned Schulte, who was on call for COG. Schulte said that Shelley should take Tylenol, elevate her feet, and call Weir the following day. At about 6 a.m., Michael found that Shelley was breathing abnormally and that her tongue was extended and bloody; he was unable to wake her. Shelley was taken by ambulance to the hospital, where she suffered a seizure. An emergency cesarean section was performed to deliver a premature, 11/3-pound baby girl, Brianna.

Brianna survived, but is severely disabled. Although Brianna may have at least average intelligence, she is visually impaired; has cerebral palsy; and is unable to walk, speak, or eat normally. Brianna requires constant care and may require constant care for the rest of her life.

II. PROCEDURAL BACKGROUND

Brianna's action against the defendants went to trial in 1997. At the close of Brianna's case, the trial court granted a directed verdict for Schulte, but overruled motions for directed verdict as to the other defendants. Brianna filed a timely motion for new trial to preserve the issue of Schulte's dismissal for appellate review. The defendants again moved for directed verdict at the close of the defense case, and the motions were overruled.

The case was submitted to the jury, but the jury was unable to reach a verdict. In the process of questioning the jurors on the deadlock, it was revealed that the jury agreed for Brianna on the element of negligence, but was unable to agree on proximate cause. A mistrial was declared.

The defendants filed posttrial motions for judgment notwithstanding the verdict, pursuant to Neb.Rev.Stat. § 25-1315.02 (Reissue 1995). Brianna filed a motion for entry of a partial judgment pursuant to Neb.Rev.Stat. § 25-1314 (Reissue 1995), arguing that the jury's consensus regarding negligence was a "special verdict" on the issue of negligence entitling her to judgment thereon. These motions, and Brianna's motion for new trial, were overruled.

III. ASSIGNMENTS OF ERROR

Defendants-appellants Weir and COG assign, consolidated and restated, that the trial court erred in (1) admitting the causation testimony of Brianna's expert, Andrew Robertson, M.D.; (2) failing to direct a verdict for COG and Weir due to Brianna's failure to establish causation with the requisite degree of certainty; and (3) failing to direct a verdict for COG and Weir based on Brianna's failure to establish what damages were proximately caused by the defendants' alleged negligence.

Defendant-cross-appellant Jones assigns, consolidated and restated, that the trial court erred in (1) failing to direct a verdict for Jones and (2) giving instruction No. 14, relating to the allocation of damages where a preexisting condition is partially responsible for Brianna's injuries.

Plaintiff-cross-appellant Brianna assigns, consolidated and restated, that the trial court erred in (1) sustaining Schulte's motion for directed verdict and overruling Brianna's motion for new trial therefrom and (2) overruling Brianna's motion for judgment pursuant to § 25-1314.

IV. STANDARD OF REVIEW

On a motion for judgment non obstante verdicto, or notwithstanding the verdict, the moving party is deemed to have admitted as true all the relevant evidence admitted which is favorable to the party against whom the motion is directed, and, further, the party against whom the motion is directed is entitled to the benefit of all proper inferences deducible from the relevant evidence. Hulett v. Ranch Bowl of Omaha, 251 Neb. 189, 556 N.W.2d 23 (1996),overruled on other grounds, Knoll v. Board of Regents, 258 Neb. 1, 601 N.W.2d 757 (1999)

; McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996). In order to sustain a motion for judgment notwithstanding the verdict, the court resolves the controversy as a matter of law and may do so only when the facts are such that reasonable minds can draw but one conclusion. Id.

A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. Walkenhorst v. State, 253 Neb. 986, 573 N.W.2d 474 (1998); Mahoney v. Nebraska Methodist Hosp., 251 Neb. 841, 560 N.W.2d 451 (1997).

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. Cobb v. Sure Crop Chem. Co., 255 Neb. 625, 587 N.W.2d 355 (1998).

On appeal from an order of a trial court dismissing an action at the close of the plaintiff's evidence, an appellate court must accept the plaintiff's evidence as true, together with reasonable conclusions deducible from that evidence. Alexander v. Warehouse, 253 Neb. 153, 568 N.W.2d 892 (1997); Cloonan v. Food-4-Less, 247 Neb. 677, 529 N.W.2d 759 (1995).

Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the court below. In re Estate of Myers, 256 Neb. 817, 594 N.W.2d 563 (1999); Central States Found. v. Balka, 256 Neb. 369, 590 N.W.2d 832 (1999).

V. ANALYSIS

We first note that although the jury in this case was not able to agree on a verdict, the defendants have properly appealed from a posttrial motion for judgment notwithstanding the verdict. Section 25-1315.02 authorizes an appeal from the denial of a judgment notwithstanding the verdict after the jury has been discharged as the result of an inability to reach a verdict. See, Critchfield v. McNamara, 248 Neb. 39, 532 N.W.2d 287 (1995); Ditloff v. Otto, 239 Neb. 377, 476 N.W.2d 675 (1991).

We also note that although our disposition of this case requires that it be remanded for a new trial and that we need not reach all of the issues argued by the parties, we nonetheless consider those issues that are likely to recur on retrial. An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings. See, e.g., Floyd v. Worobec, 248 Neb. 605, 537 N.W.2d 512 (1995); Sikyta v. Arrow Stage Lines, 238 Neb. 289, 470 N.W.2d 724 (1991); State v. Harney, 237 Neb. 512, 466 N.W.2d 540 (1991); Denesia v. St. Elizabeth Comm. Health Ctr., 235 Neb. 151, 454 N.W.2d 294 (1990).

1. Weir and COG's Appeal

Weir and COG's assignments of error relate to the sufficiency of testimony...