Bank v. Mickels
926 N.W.2d 97
Neb.2019Background
- Plaintiff Carl Bank underwent rotator cuff repair by Dr. Jason Mickels and continued to have pain and decreased range of motion postoperatively.
- On November 20, 2012, Mickels performed an injection and manipulation (range-of-motion) procedure; no written consent was signed and plaintiff alleges risks (including infection and fracture) were not disclosed.
- Carl’s condition worsened; a later surgeon found severe joint infection and did a staged shoulder arthroplasty in April–May 2013.
- The Banks sued for medical malpractice and loss of consortium asserting (1) failure to obtain informed consent and (2) failure to diagnose/treat infection. A jury returned a general verdict for defendants.
- At trial the court admitted defense expert Dr. Wright (from Kearney), excluded certain rehabilitative testimony about plaintiff’s expert fees, instructed the jury that written consent is not required, refused a preexisting-condition/aggravation instruction, and denied a mistrial after a brief reference to “deductibles.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Foundation for defense expert (locality familiarity) | Wright lacked foundation to opine on Omaha standard because he practices in Kearney | Wright’s training, experience, and Nebraska affiliations sufficed to show familiarity with community standards | Court upheld admission; no abuse of discretion |
| Rehabilitative testimony about expert fees (donation to charity) | Banks sought to rehabilitate Dr. Bal by eliciting that his expert fees are donated | Defense had properly impeached credibility; the question was collateral and irrelevant | Exclusion was within trial court’s discretion and not prejudicial |
| Form of informed consent under Neb. Rev. Stat. § 44-2816 | § 44-2816 requires written informed consent for procedures like the November injection/manipulation | Statute requires disclosure of information but does not prescribe form; consent may be express or implied | Court held § 44-2816 does not require written consent; oral/other forms can satisfy statute |
| Refusal to give preexisting-condition/aggravation instruction | Banks’ NJI-based instruction on aggravation of preexisting condition should have been given | Jury returned a general verdict for defendant; jury likely decided causation against plaintiff so damages/apportionment were not reached | Failure to give instruction was not reversible error; no prejudice shown |
| Motion for mistrial / collateral source rule re: “deductibles” remark | Brief mention of deductibles violated in limine order and collateral source rule, requiring mistrial or new trial | Reference was casual, isolated, and not damaging; collateral source instruction mitigated any effect | Court denied mistrial/new trial; comment was not prejudicial |
Key Cases Cited
- Hemsley v. Langdon, 299 Neb. 464 (2018) (standard for reviewing admissibility of expert testimony is abuse of discretion)
- First Nat. Bank North Platte v. Cardenas, 299 Neb. 497 (2018) (appellate review of correctness of jury instructions is de novo)
- Armstrong v. Clarkson College, 297 Neb. 595 (2017) (elements to show reversible error for refusal to give requested instruction)
- Genthon v. Kratville, 270 Neb. 74 (2005) (not every inadvertent insurance reference requires mistrial; review depends on facts and circumstances)
- Wisner v. Vandelay Investments, 300 Neb. 825 (2018) (statutory language given plain meaning; courts do not insert requirements absent legislative text)
- Eccleston v. Chait, 241 Neb. 961 (1992) (informed consent requires disclosure enabling an intelligent decision)
- Curran v. Buser, 271 Neb. 332 (2006) (discussing physician duty to inform patient of risks)