Evans v. Freedom Healthcare
972 N.W.2d 75
Neb.2022Background
- Plaintiff Warren Evans received platelet-rich plasma (PRP) knee injections at Freedom Healthcare in February 2018 and developed a polymicrobial septic infection in his right knee requiring hospitalization and multiple surgeries.
- The procedure was performed by a physician assistant, Tana Kenley; Evans recalled the same needle was used for both knees, while Kenley testified she used separate syringes and sterilized the skin with chlorhexidine.
- Freedom Healthcare moved for summary judgment, submitting expert testimony (Dr. David Brown) that post-injection joint infection is rare but a recognized risk and that the clinic met the standard of care.
- Evans submitted expert opinion (Dr. Scott Swanson) that this polymicrobial infection is not a routine risk and, in his view, could only have occurred from a significant breach of sterile technique.
- The district court granted summary judgment, finding Dr. Swanson’s testimony inconsistent and concluding res ipsa loquitur did not apply; the Nebraska Supreme Court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of expert proof for negligence | Swanson opined breach of sterile technique caused the infection and stated it would not occur absent negligence | Freedom presented Dr. Brown saying infections are rare but possible; argued plaintiff lacked competent expert to show breach | Court: Swanson was qualified and his opinions raised a genuine fact issue; summary judgment improper |
| Applicability of res ipsa loquitur | Infection after injection is not expected absent negligence; instrumentality was under clinic control; no explanation offered | Because infection, though rare, can occur without negligence, res ipsa should not apply | Court: At summary judgment, enough evidence existed for reasonable persons to find res ipsa elements more likely than not; inference of negligence survives |
| Pleading both specific negligence and res ipsa | Evans argued pleading both is permitted under notice pleading; res ipsa is evidentiary, not a pleading bar | Trial court treated pleading specific negligence as precluding res ipsa at summary judgment | Court: Rejects treating pleading as bar; pleadings may include both theories; district court erred |
Key Cases Cited
- Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018) (expert proof required to establish standard of care and causation in malpractice)
- Anderson v. Union Pacific RR. Co., 295 Neb. 785, 890 N.W.2d 791 (2017) (res ipsa is a rule of evidence, not pleading; jury instruction limits where specific negligence proven)
- McLaughlin Freight Lines v. Gentrup, 281 Neb. 725, 798 N.W.2d 386 (2011) (at summary judgment court must ask whether reasonable persons could find res ipsa elements more likely than not)
- Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004) (three situations where negligence may be inferred under res ipsa in medical malpractice)
- Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018) (elements of prima facie medical malpractice claim)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (standards for admissibility/challenge of expert testimony)