Rodriguez v. Surgical Assocs.
905 N.W.2d 247
Neb.
2018

Background

  • Francisca Rodriguez underwent emergent cholecystectomy on April 16, 2012; the gallbladder was gangrenous and ruptured intraoperatively, with pus and stones spilled into the abdomen.
  • Postoperatively Rodriguez developed worsening sepsis, hypotension, tachycardia, respiratory failure, renal failure, and abdominal distention between April 17–20; free air on x-ray and equivocal HIDA scan findings complicated diagnosis.
  • Dr. Greg Fitzke (attending surgeon) canceled a CT scan ordered April 18 and decided against immediate reoperation; another surgeon (Taddeucci) performed exploratory surgery on April 20 discovering a small-bowel perforation and removing bilious fluid.
  • Rodriguez sued for medical negligence, alleging delayed diagnosis/treatment (failure to order/perform CT or return to OR on April 18–19) that delayed corrective surgery by two days and caused additional injury.
  • At trial competing expert testimony: plaintiff’s experts said Fitzke breached the standard of care (including cancelling the CT); defense experts said cancellation and nonoperative management were reasonable. Jury returned a general verdict for defendants; motion for new trial denied.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether jury should be instructed that Fitzke had a nondelegable duty to return Rodriguez to surgery Rodriguez: as attending surgeon, Fitzke had ultimate responsibility and jury should be told duty was his (nondelegable) Appellees: no evidence Fitzke delegated duty; nondelegable instruction not applicable Court: refused instruction — nondelegable duty instruction unwarranted absent evidence of delegation or judicial admission
Whether preexisting-condition instruction (and "you take the plaintiff as you find her") was required Rodriguez: jury should be instructed that defendants are liable for damages proximately caused and for inseparable aggravation of preexisting conditions Appellees: apportionment issues irrelevant because general verdict for defendants means jury did not reach damages Court: no prejudice — general verdict for defendants presumed to resolve proximate cause against plaintiff, so instructions unnecessary
Whether defense expert Taddeucci should have been precluded from testifying about postoperative care due to discovery nondisclosure Rodriguez: appellees failed to supplement interrogatory (§6-326) and should be barred from eliciting opinions on postop care Appellees: plaintiff called Taddeucci in her case and opened the subject; disclosure identified his deposition as source of opinions Court: record inadequate (plaintiff’s deposition of Taddeucci not in record), so appellate review impossible; affirmed trial court
Admissibility of Fitzke’s testimony recounting internist Allen’s opinion (alleged hearsay/undisclosed expert opinion) Rodriguez: Fitzke’s answer relayed Allen’s undisclosed expert opinion and violated discovery and hearsay rules Appellees: Fitzke testified to his perception of Allen’s view (non-hearsay opinion testimony by fact witness); any reliance falls within expert-evidence rules Court: admissible — Fitzke’s statement was his perception (Rule 701) and, in any event, permissible under Rule 703 as basis for expert opinion; no abuse of discretion

Key Cases Cited

  • Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (Neb. 2017) (standards for jury instructions and harmless error)
  • Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900 N.W.2d 732 (Neb. 2017) (trial court discretion on admissibility)
  • Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (Neb. 2014) (general rule on employer liability for independent contractors)
  • Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (Neb. 1994) (head surgeon liability for negligent acts of assistants in surgery)
  • Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (Neb. 2003) (discussion of nondelegable duties)
  • Morgan v. Mysore, 17 Neb. App. 17, 756 N.W.2d 290 (Neb. Ct. App. 2008) (rejection of nondel egable-duty instruction where no evidence of delegation)
  • David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726 (Neb. 1996) (preexisting-condition instruction requires proximate-cause proof)
  • Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (Neb. 2015) (general verdict presumed adverse to plaintiff on proximate cause)
  • Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319 (Neb. 1994) (limits on hearsay relied upon by experts)
  • Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d 750 (Neb. 1997) (admission vs weight of testimony recounting others' statements)
  • State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (Neb. 2004) (Rule 703: experts may rely on hearsay reasonably relied upon in the field)
  • Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (Neb. 1997) (limitations on surgeon liability for hospital employees)
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