Steineke v. Share Health Plan of Nebraska, Inc.
| Decision Date | 15 July 1994 |
| Docket Number | No. S-92-1115,S-92-1115 |
| Parties | , 56 A.L.R.5th 929 Nancy STEINEKE, Appellant, v. SHARE HEALTH PLAN OF NEBRASKA, INC., Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.
2. Summary Judgment. Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
3. Expert Witnesses: Physicians and Surgeons. Medical opinions must be based on reasonable medical certainty.
4. Expert Witnesses: Physicians and Surgeons. Medical testimony couched in terms of "possibility" is insufficient to support a causal relationship.
James R. Welsh, Bradford, Coenen, Ashford & Welsh, Omaha, for appellant.
Leo A. Knowles and Ronald G. Fleming, McGrath, North, Mullin & Kratz, P.C., Omaha, for appellee.
Nancy Steineke appeals the order of the district court for Douglas County granting summary judgment in favor of Share Health Plan of Nebraska, Inc. (Share), in her breach of contract action against Share.
We affirm the order of the district court.
In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804 (1994).
Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Id.
Giving Steineke the benefit of all reasonable inferences deducible from the evidence, as we are required to do, the facts of this case are as follows:
Share, at all times material to this case, was a Nebraska corporation authorized to operate a health maintenance organization pursuant to Neb.Rev.Stat. § 44-3201 et seq. (Reissue 1988) (§ 44-3201 et seq. has since been replaced by the Health Maintenance Organization Act, Neb.Rev.Stat. § 44-3292 et seq. (Cum.Supp.1992)). Steineke, an employee of Douglas County, was entitled to health care services provided by Share as a result of an agreement between Share and Douglas County.
The evening of September 30, 1987, Steineke entered the emergency room at Archbishop Bergan Mercy Hospital (Bergan) complaining of left lower abdominal pain. Steineke was seen the following day, October 1, by Dr. Robert Luby, who informed her that she had an ectopic pregnancy. An ectopic pregnancy is one in which a fertilized ovum develops outside the uterine cavity. Dorland's Illustrated Medical Dictionary 1349 (27th ed. 1988). It was ultimately determined that Steineke's fetus had implanted in her left fallopian tube.
Dr. Luby, who was a non-Share physician at that time, advised Steineke that emergency surgery was required. Dr. Luby scheduled the surgery to be done at Bergan that same day by a Share physician. In the surgery contemplated by Dr. Luby, the physician would remove the fetus and tissue from Steineke's fallopian tube in an attempt to preserve the tube so that a microsurgical technique could be used at a later time to repair the tube. Steineke's other fallopian tube had been removed in 1983 due to a prior tubal pregnancy.
Before Steineke was taken to surgery, a representative of Share telephoned Steineke at Bergan and informed Steineke that it was necessary for her to be transferred to University of Nebraska Medical Center (UNMC), where her primary physician was located. Steineke was told that if she chose to remain at Bergan, she would be responsible for the cost of her care.
Steineke was then transferred to UNMC by ambulance. At UNMC, Steineke was informed that the physicians at that facility would be unable to save either the fetus or her fallopian tube because "that procedure" was not done at UNMC. The record fails to reflect any evidence that Dr. Luby, Steineke, or any Share representative was aware at the time Steineke was transferred to UNMC that physicians at UNMC would be unable to perform a procedure to attempt to save Steineke's fallopian tube such as the procedure contemplated by the physicians at Bergan. Before signing a written consent for surgery at UNMC, Steineke was told that neither her fetus nor her remaining fallopian tube could be saved. Surgery was performed, rendering Steineke permanently unable to conceive and bear children.
On April 3, 1990, Steineke sued Share, alleging in her petition that Share breached its contract to provide medical services to Steineke by "refusing to authorize the medical services of Bergen [sic] to be covered for the emergency medical problems of [Steineke], when the defendant Share, knew or should have known, that such services to be rendered to the plaintiff, as an emergency were covered by the [health care plan] with Share." Steineke requested damages for mental and physical pain and suffering, both past and future, as well as damages "by reason of her inability to conceive and bear children in the future."
The trial court subsequently sustained a motion by Share for summary judgment
for the reason that no genuine issue of fact exists with respect to the issue of causation, and there is no genuine issue of fact that any act or omission of the Defendant had any causal relation to the damages claimed by the Plaintiff, which damages, to the extent that they seek recompense for pain and suffering and/or emotional distress, are not recoverable in a breach of contract claim as a matter of law.
Steineke timely appealed from that order. We removed the case from the Nebraska Court of Appeals pursuant to our authority to regulate the workload of the appellate courts of this state.
Steineke's sole assignment of error on appeal is that the trial court erred in granting summary judgment for Share.
Steineke argues that because of Share's actions in overriding the judgment of her physician, Dr. Luby, she lost the chance to keep her one remaining fallopian tube intact and thus lost the chance to conceive and bear children through the breach of some contractual duty on the part of Share.
Share argues that any alleged breach of contract on its part was not the proximate cause of Steineke's damages, because there is a lack of evidence that Steineke's remaining fallopian tube could have been saved had her surgery been done at Bergan. Share also argues that subsequent intervening acts by the physicians at UNMC were the cause of Steineke's damages.
As to Steineke's loss of chance arguments, she has cited no authority, nor have we discovered any, that Nebraska recognizes loss of chance as a cause of action or as an element of damages in either tort or contract cases. We decline to adopt the loss of chance doctrine in this case, and therefore we do not address Steineke's loss of chance arguments.
Because the loss of chance theory is inapplicable to our analysis of this case, we are instead guided by principles of contract law as to Share's argument that any alleged breach of contract on its part was not the proximate cause of Steineke's alleged damages.
It is a basic concept that in any damage action for breach of contract the claimant must prove that the breach of contract complained of was the proximate cause of the alleged damages. In a breach of contract case there must be a causal relationship between the damages asserted and the breach relied upon. Proof which leaves this issue in the realm of speculation and conjecture is insufficient to support a judgment.
Omaha P.P. Dist. v. Darin & Armstrong, Inc., 205 Neb. 484, 497, 288 N.W.2d 467, 474 (1980).
As to whether Share's alleged breach of contract was the proximate cause of Steineke's alleged damages, the rule is that the party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must furnish sufficient evidence to demonstrate that such movant is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. Dalton Buick v. Universal Underwriters Ins. Co., 245 Neb. 282, 512 N.W.2d 633 (1994). After the movant has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which, as a matter of law, prevents judgment for the movant. Id.
Share's evidence on the issue of proximate cause of Steineke's alleged damages was composed entirely of the deposition testimony of Dr. Luby entered into evidence by Share in support of its motion for summary judgment. Steineke joined in offering Dr. Luby's deposition, and offered no other expert evidence in opposition to Share's summary judgment motion.
Dr. Luby, Steineke's medical expert witness, testified in his deposition that in his opinion, there would have been a better chance of saving Steineke's fallopian tube had she remained at Bergan. However, Dr. Luby was unable to say with a reasonable degree of medical certainty whether Steineke's tube could have been saved.
Medical opinions must be based on reasonable medical certainty. Caradori v. Frontier Airlines, 213 Neb. 513, 329 N.W.2d 865 (1983). Accord, Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754 (1992); In re...
To continue reading
Request your trial
-
Gibb v. Citicorp Mortg., Inc., S-92-1107
... ... No. S-92-1107 ... Supreme Court of Nebraska ... July 15, 1994 ... Page 913 ... Syllabus by the ... ...
-
Cohan v. Med. Imaging Consultants, P.C.
...of Torts.Finally, the Cohans argue that this court has already adopted the loss-of-chance doctrine in Nebraska. They point to Steineke v. Share Health Plan of Neb.,15 where the dissenting opinion argued that in Washington v. American Community Stores Corp.,16 this court had "wittingly or un......
-
Rankin v. Stetson
...caused her injury. We also note that Nebraska has not recognized the loss-of-chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). Gross' statements that Rankin would have had a "better prognosis" and a "chance of avoiding permanent neurological in......
-
Gallegos v. Mary Lanning Mem'l Hosp. Ass'n
...express a probability greater than 50 percent." Walton v. Patil, 783 N.W.2d 438, 447 (Neb. 2010); see also Steinke v. Shared Health Plan of Neb., Inc., 518 N.W.2d 904, 907 (Neb. 1994) ("Medical opinions must be based on reasonable medical certainty."). Although a forty-nine percent chance "......
-
Medical Malpractice
...979. Medical Malpractice 979 A Closer Look at Loss of Chance Under Nebraska Medical Malpractice Law: Steineke v. Share Health Plan, Inc., 246 Neb. 374, 518 N.W.2d 904 Note* TABLE OF CONTENTS I. Introduction 979 II. Legal Development of Loss of Chance Doctrine 981 A. Traditional Tort Law Pri......
-
So You're Telling Me There's a Chance: an Examination of the Loss of Chance Doctrine Under Nebraska Law
...Patrick L. Evatt, Note, A Closer Look at Loss of Chance Under Nebraska Medical Malpractice Law: Steineke v. Share Health Plan, Inc., 246 Neb. 374, 518 N.W.2d 904 (1994), 76 NEB. L. REV. 979, 981 (1997); see also W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 164-65 (W. Page K......