Carrizales v. Creighton St. Joseph
979 N.W.2d 81
Neb.2022Background
- Carrizales sued (filed Oct. 30, 2013) for alleged medical malpractice during her daughter Nina’s birth, naming Creighton University, Creighton University Medical Center-Saint Joseph Hospital, and three physicians (Gray, Wulf, Arms).
- Two summonses were issued: one Oct. 31, 2013 (No. 226226) and another Apr. 16, 2014 (No. 255379); service return filed Apr. 28, 2014 showed certified-mail delivery Apr. 21, 2014 but referenced the October summons number.
- The district court found Creighton University was not properly served within the statutory period and concluded the claim against Creighton University was dismissed by operation of law under Neb. Rev. Stat. § 25-217; Carrizales’ later motion for default judgment was denied.
- Carrizales designated Dr. Fred Duboe as an expert but his deposition was not taken despite a court progression order; the court ultimately struck Duboe as an expert for failure to comply with the court’s scheduling order.
- After Duboe was stricken, the doctors moved for summary judgment, submitting an affidavit from Dr. Gray asserting they met the standard of care; the district court granted summary judgment for the doctors and denied Carrizales’ motion to alter or amend.
- Carrizales appealed the dismissal of Creighton University, the denial of default judgment, the striking of Duboe, the grant of summary judgment for the doctors, and the denial of her motion to alter or amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dismissal under §25-217 (Creighton Univ.) | Service by certified mail actually occurred within six months, so §25-217 dismissal was improper | Service did not comply with statutory requirements (summons not sent within 10 days of issuance under §25-505.01), so not "served" for §25-217 | Affirmed: dismissal proper — summons served outside the statutory method/timeframe, so no service under §25-217 and action dismissed by operation of law |
| Default judgment vs Creighton University | Court should have entered default judgment because Creighton received the summons and failed to answer | No obligation to respond because plaintiff failed to effect timely, proper service; dismissal removed court’s jurisdiction | Affirmed: no default; court correctly treated claim as dismissed by operation of law |
| Striking expert (Dr. Duboe) | Doctors never served a subpoena/notice on Duboe; striking his testimony was unduly harsh | Carrizales failed to comply with court progression order and did not procure Duboe’s deposition; court may enforce orders under inherent power | Affirmed: striking was valid exercise of court’s inherent case‑management power and not an abuse of discretion |
| Summary judgment for physicians | Gray’s affidavit lacked foundation; other discovery and testimony create genuine issues; Duboe’s affidavit should be considered | Gray’s self‑supporting affidavit makes prima facie showing doctors met standard; no admissible expert contradicts Gray after Duboe was stricken | Affirmed: Gray’s affidavit sufficed; no admissible expert evidence raised a genuine issue of material fact |
| Motion to alter or amend | District court erred and should reconsider based on arguments/evidence | No new basis shown to alter judgment | Affirmed: motion denied; no error in prior rulings |
Key Cases Cited
- Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (Neb. 2018) (physician's self‑supporting affidavit can establish prima facie case at summary judgment in malpractice suits)
- State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14 (Neb. 2004) (interpretation of when service by publication constitutes "service" for §25-217 purposes)
- Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698 (Neb. 2010) (§25-217 is self‑executing; dismissal by operation of law for failure to serve)
- Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (Neb. 2017) (trial court’s inherent power to manage discovery and progression orders; abuse of discretion standard)
- Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (Neb. 2007) (expert testimony must have adequate factual foundation)
- Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (Neb. 2012) (common‑knowledge exception to expert testimony in medical malpractice)