Louise M. Vanderpool v. Oakland Memorial Hospital District, a body corporate and politic of the State of Nebraska, et al.

Louise M. Vanderpool asserted this medical malpractice claim against Oakland Memorial Hospital District (Hospital); Dr. Gayle E. Peterson; and several registered nurses, one of whom was dismissed prior to trial. The trial court granted the appellees' motions for directed verdict at the close of Vanderpool's evidence at trial. Vanderpool appeals. Because we conclude that Vanderpool failed to show that her stroke was proximately caused by the claimed lack of treatment, we affirm.

BACKGROUND

On June 6, 1998, Vanderpool entered Hospital's emergency room, seeking treatment for blurred vision in one of her eyes and generalized weakness. Dr. Peterson, the on-call physician on duty, admitted Vanderpool to Hospital's facility. The parties agree that Vanderpool had suffered a transient ischemic attack, that is, a temporary lack of blood flow to a portion of the brain, which condition resolves itself before permanent injury occurs to the brain.

Dr. Peterson had treated Vanderpool approximately 1 week earlier for dehydration and weight loss occurring after surgery and radiation therapy for a malignant growth on her neck. On the evening of June 6, 1998, Dr. Peterson ordered intravenous administration of fluids. Initially, the nurses observed that Vanderpool could speak.

On the following morning, Vanderpool's condition worsened: she became unresponsive to questions and suffered paralysis to the right side of her body. Dr. Peterson arranged for transfer of Vanderpool to an Omaha hospital. The Omaha hospital personnel determined that Vanderpool had suffered a cerebrovascular accident, i.e., a stroke.

Vanderpool brought this action, including a claim for loss of consortium assigned to Vanderpool by Frank Vanderpool (Frank), who claimed to be her common-law spouse. Prior to trial, Vanderpool dismissed one of the nurses from the action.

At the jury trial, two witnesses testified for Vanderpool: Frank and her expert witness, Dr. Allan Ingenito. Vanderpool presented no evidence regarding the standard of care for the remaining nurses and assigns no error in the dismissal of her claim against the nurses. We consider Dr. Ingenito's testimony at some length in the analysis section and will not repeat that evidence here. During the course of Dr. Ingenito's testimony, the trial court conducted a hearing under Neb. Evid. R. 104, Neb. Rev. Stat. § 27-104 (Reissue 1995), without the jury. At the close of Dr. Ingenito's testimony, Vanderpool made an additional offer of proof by further questions and answers in the jury's absence.

After jury selection and in the jury's absence before opening statements, the trial court considered Hospital's motions in limine to prevent references to Frank as Vanderpool's spouse and to prevent testimony about damages for loss of consortium. When the court sought a response from Vanderpool's counsel, he responded only that "the law needs to be changed, Your Honor." Because the trial court concluded that Vanderpool was not legally married to Frank, the court granted the motions.

During the trial, Frank testified that he and Vanderpool never entered into a civil marriage ceremony. He testified that he claimed to be Vanderpool's common-law spouse because they resided together in California for 5 years. He also testified that they lived together in Oklahoma "for a short time."

At the close of Vanderpool's evidence, the trial court granted the appellees' motions for directed verdict.

ASSIGNMENTS OF ERROR

Vanderpool asserts that the trial court erred (1) by excluding Dr. Ingenito's testimony regarding proximate cause, (2) by granting the appellees' motions for directed verdict, (3) by excluding references to Frank as Vanderpool's spouse, and (4) by dismissing Vanderpool's assigned claim for loss of consortium.

STANDARD OF REVIEW

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. State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.

A trial court should direct a verdict as a matter of law only when the facts are conceded, undisputed, or such that reasonable minds can draw but one conclusion therefrom. McClure v. Forsman, 266 Neb. 90, 662 N.W.2d 566 (2003). In reviewing a trial court's ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Saberzadeh v. Shaw, 266 Neb. 196, 663 N.W.2d 612 (2003).

ANALYSIS
Exclusion of Causation Opinion.

Both sides recognize Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000), as persuasive authority. They differ regarding its application.

During the rule 104 hearing, Dr. Ingenito testified:

[Counsel for Dr. Peterson:] As I understand it, it's your opinion that, had . . . Vanderpool been given aspirin or Heparin on June the 6th, that her risk for the stroke that she eventually suffered would have been reduced, am I correct?

[Dr. Ingenito:] That's correct.

Q With respect to aspirin, it's your opinion that, had aspirin been given, that risk would have been reduced in the neighborhood of 20 percent?

A Yes, sir.

. . . .

Q --with respect to Heparin?

A I am unable to provide you with a number that I can back up with a study that would provide us with that reduction number.

Q The best evidence that we have with respect to Heparin deals with embolization from the heart, am I correct?

A That's correct.

Q And the best result that one could hope for, assuming this was embolization from the heart, would be a reduction of approximately 40 percent in the risk of stroke, correct?

A That's correct.

Q But you don't know whether this was embolization from the heart or embolization from the carotid artery, correct?

A Not to a reasonable degree of medical certainty, that's correct.

. . . .

Q Well, I mean, I guess my question is, is it your opinion that -- that the failure to administer either Heparin or aspirin caused . . . Vanderpool to suffer her stroke?

A My -- I would interpret that that, if an aspirin or Heparin would have been administered, I know to a reasonable degree of medical certainty she would not have suffered the stroke?

Q That's right.

A No, I can't testify to that.

At the close of Dr. Ingenito's testimony, Vanderpool made an offer of proof by additional questions and answers:

[Counsel for Vanderpool:] And my question again is, is the causal relationship between Dr. Peterson's negligence, which you've described, and . . . Vanderpool's harm, is the relationship between those two such that it can only be inferred by surmising as to what [Vanderpool's] condition would have been, had Dr. Peterson exercised the ordinary care that is recognized as the standard in this type of case?

[Dr. Ingenito:] Yes.

Q And the treatments that you have indicated, namely, Heparin and aspirin, are those treatments intended to prevent the type of harm which resulted to . . . Vanderpool in this case?

A Yes.

. . . .

Q Doctor, is it more probable than not that the treatment could have lessened or avoided [Vanderpool's] injury in this case, had it been rendered?

A Yes.

The issue with respect to Dr. Ingenito's testimony is whether his opinion regarding causation is sufficiently certain. Lack of certainty in an expert's opinion is a problem of relevance. Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605 N.W.2d 782 (2000). Because the exercise of judicial discretion is implicit in determinations of relevancy and admissibility under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1995), the trial court's decision will not be reversed absent an abuse of discretion. Snyder, supra.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. § 27-401. Thus, for evidence to be relevant under § 27-401, all that must be established is a rational, probative connection, however slight, between the offered evidence and a fact of consequence. Snyder, supra. In the instant case, the issues were the standard of care, Dr. Peterson's alleged deviation from that standard of care, and the relationship between that deviation and Vanderpool's injuries.

Vanderpool contends that Dr. Ingenito's testimony during the offer of proof directly follows the guidance in Snyder. However, Vanderpool's argument misses the critical distinction between Snyder and the present case. In Snyder, the expert was able to testify with a reasonable degree of medical certainty that the omitted treatment would have reduced the severity of the birth defects suffered by the infant plaintiff. Accordingly, the Nebraska Supreme Court in Snyder upheld the trial court's determination that the expert's conclusions regarding causation were rationally and probatively connected to the issues of causation and degree of injury. In the present case, Dr. Ingenito admitted that he could not testify that "but for" the claimed breach of care, the stroke would not have occurred. Thus, his testimony regarding causation lacked the certainty required by Snyder.

In Snyder, the birth mother had a preexisting condition that would result in premature delivery and birth defects to the child. With or without proper treatment, some defects would occur. The plaintiff's expert testified that with reasonable medical certainty, proper treatment would have reduced the severity of the defects.

Dr. Ingenito could not opine that Vanderpool's stroke would not have occurred without the alleged omission in treatment. Similarly, his testimony failed to connect the occurrence or severity of Vanderpool's stroke with the omission in treatment. Dr. Ingenito expressed opinions purely in terms of the percentage by which the omitted treatment would have reduced Vanderpool's risk of stroke, but he did not quantify the overall risk of stroke. Regarding aspirin, Dr. Ingenito testified that administration would have reduced the possibility of stroke by 20 percent. Dr. Ingenito's testimony concedes that even with aspirin treatment, there remained an 80-percent possibility of stroke occurring and the unquantified possibility of no stroke occurring. Regarding Heparin, Dr. Ingenito testified that administration would have reduced the stroke risk by 40 percent or less. This shows a 60-percent or greater remaining possibility of stroke if treatment had been administered, as well as the unquantified possibility of no stroke. Therefore, unlike Snyder, supra, where birth defects were certain to occur, there is not evidence in this case that Vanderpool's stroke was certain to occur, much less evidence that the occurrence of the stroke and the damages stemming from it were caused or affected by the failure to administer aspirin or Heparin.

Dr. Ingenito's testimony failed to satisfy the "but for" causation test of Nebraska law. The trial court did not abuse its discretion in refusing the opinion testimony regarding proximate cause. See Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004) (abuse of discretion standard requires acceptance of trial court's reasonable interpretation of testimony).

Granting Directed Verdicts.

In a malpractice action involving professional negligence, the burden is on the plaintiff to show (1) the generally recognized medical standard of care, (2) a deviation from that standard by the defendant, and (3) that the deviation was the proximate cause of the plaintiff's alleged injuries. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001). Proximate causation requires proof that a physician's deviation from the standard of care caused or contributed to the injury or damage to the plaintiff. Fackler v. Genetzky, 263 Neb. 68, 638 N.W.2d 521 (2002).

The burden of proving a cause of action is not sustained by evidence from which a jury can arrive at its conclusion only by guess, speculation, conjecture, or choice of possibilities; there must be something more which would lead a reasoning mind to one conclusion rather than to another. King v. Crowell Memorial Home, 261 Neb. 177, 622 N.W.2d 588 (2001).

Because we conclude that the trial court did not abuse its discretion by refusing Vanderpool's expert's opinions concerning proximate cause, it follows that the trial court correctly sustained Dr. Peterson's motion for directed verdict.

Vanderpool alternatively urges this court to create a cause of action for loss of chance in Nebraska by lowering a plaintiff's burden of production to enable the plaintiff to establish a jury question on the issue of causation on a showing of a substantial decrease in the chance of survival. See McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467 (Okla. 1987). The establishment of such a cause of action, previously unrecognized in Nebraska law, should be left to the Legislature or the Nebraska Supreme Court.

Vanderpool also contends that the trial court erred in granting Hospital's motion, on behalf of Hospital and the nurses, for directed verdict, asserting that if Dr. Peterson is liable, then Hospital is also liable for the physician's omissions under the doctrines of apparent authority, authority by estoppel, and nondelegable duty. Because we have concluded that Vanderpool failed to establish sufficient proof of causation to reach the jury regarding Dr. Peterson, Vanderpool's argument concerning Hospital necessarily fails.

Consortium Issues.

Because we have determined that Vanderpool failed to establish the proximate causation element of her negligence claim, we need not consider the alleged errors concerning the marital status of Vanderpool and Frank, and any alleged damages for loss of consortium. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it. Mabile v. Drivers Mgmt., Inc., 11 Neb. App. 765, 660 N.W.2d 537 (2003).

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Click the case caption above for the full text
of the Court's opinion.

The trial court did not abuse its discretion in refusing the opinions of Vanderpool's expert witness and correctly granted the appellees' motions for directed verdict. It is not necessary to consider the remaining assignments of error.

Affirmed in favor of Defendents.

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Reported by L. Hargraves