Bank v. Mickels
926 N.W.2d 97
| Neb. | 2019Background
- Carl Bank underwent rotator cuff repair by Dr. Jason Mickels in Sept. 2012 and continued to have pain and limited range of motion thereafter.
- On Nov. 20, 2012, Mickels performed an injection and manipulation; Carl did not sign a written consent and later developed worsening pain and, ultimately, a deep shoulder infection discovered by a second surgeon during replacement surgery in April 2013.
- The Banks sued for medical malpractice and loss of consortium, alleging lack of informed consent (arguing written consent was required) and failure to diagnose/treat infection.
- At trial, each side presented expert testimony: Banks’ experts said Mickels breached the standard of care and that written informed consent was required; Mickels’ expert testified care met the standard and consent was adequate.
- Trial rulings at issue included: exclusion of a question about an expert’s donation of fees, refusal to strike Mickels’ expert for lack of local familiarity, a jury instruction stating written consent is not required under Neb. Rev. Stat. § 44-2816, refusal to give a preexisting-condition (aggravation) instruction, and denial of a mistrial after a brief mention of “deductibles.”
- The jury returned a general verdict for Mickels; the Nebraska Supreme Court affirmed, holding § 44-2816 does not require written consent and finding no reversible trial-court error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Mickels’ expert (Dr. Wright) | Wright lacked foundation on Omaha/community standard because he practices in Kearney | Wright’s national training, faculty affiliation, and familiarity with standards suffice to establish locality basis | Court affirmed trial court: no abuse of discretion; foundation adequate |
| Exclusion of rehabilitative testimony (Dr. Bal’s donation of fees) | Banks sought to rehabilitate Bal after impeachment; evidence of donation shows non-profit motive and credibility | Trial court properly excluded collateral evidence; credibility issues within judge’s discretion | Court affirmed exclusion; no prejudice shown |
| Form of informed consent (whether written consent required under § 44-2816) | Banks: statute requires written consent for informed consent to be valid | Mickels: statute requires disclosure of information but not a writing; oral or implied consent can suffice | Court held § 44-2816 does not require written consent; jury instruction stating writing not required was correct |
| Preexisting-condition/aggravation instruction (NJI2d Civ. 4.09) | Banks: jury should have been instructed on activation/aggravation of preexisting condition | Mickels: jury returned general verdict for defendant so causation not established and damages/apportionment not reached | Court affirmed rejection of instruction; plaintiff failed to show prejudice given general verdict |
| Reference to insurance/deductibles and mistrial motion | Banks: mention of "deductibles" violated in limine order and collateral source rule, warranting mistrial | Mickels: remark was casual, isolated, inadvertent, and mitigated by instructions; no prejudice | Court affirmed denial of mistrial/new trial; isolated reference not prejudicial |
Key Cases Cited
- Hemsley v. Langdon, 299 Neb. 464 (review of expert admissibility is for abuse of discretion)
- First Nat. Bank North Platte v. Cardenas, 299 Neb. 497 (appellate review of jury-instruction correctness is de novo)
- Curran v. Buser, 271 Neb. 332 (informed consent requires disclosure of risks to permit patient decision)
- Genthon v. Kratville, 270 Neb. 74 (not every inadvertent insurance reference mandates mistrial; context controls)