IVAN J. KONSUL, APPELLANT, V. JUAN ANTONIO ASENSIO, M.D., APPELLEE.
No. S-23-441
Nebraska Supreme Court
June 14, 2024
316 Neb. 874
- Pretrial Procedure: Appeal and Error. Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion.
- Judgments: Statutes: Appeal and Error. When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below.
- Trial: Expert Witnesses: Appeal and Error. An appellate court reviews de novo whether the trial court applied the correct legal standards for admitting an expert‘s testimony, and an appellate court reviews for abuse of discretion how the trial court applied the appropriate standards in deciding whether to admit or exclude an expert‘s testimony.
- Judgments: Words and Phrases. An abuse of discretion occurs when a trial court‘s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
- Directed Verdict. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law.
- Directed Verdict: Appeal and Error. In reviewing a trial court‘s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.
- Rules of the Supreme Court: Pretrial Procedure. Inasmuch as the Nebraska Court Rules of Discovery in Civil Cases are generally and substantially patterned after the corresponding discovery rules in the Federal Rules of Civil Procedure, Nebraska courts will look to federal decisions interpreting corresponding federal rules for guidance in construing similar Nebraska rules.
- Trial: Expert Witnesses: Proof. It is the burden of the proponent of expert testimony to establish the necessary foundation for its admission.
- Malpractice: Physicians and Surgeons: Expert Witnesses. Expert testimony offered to establish the standard of care in a medical malpractice case is admissible only if its proponent can demonstrate the expert‘s familiarity with the relevant standard of care in the defendant‘s community or a similar community.
- ____: ____: ____. Expert testimony concerning the standard of care in a medical malpractice case should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.
- Trial: Expert Witnesses. Where an expert‘s opinion is mere speculation or conjecture, it is irrelevant and cannot assist the trier of fact.
- Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. The burden is on the proponent of standard-of-care testimony to demonstrate that the expert is familiar with the customary practice among physicians in the defendant‘s community or a community that is similar in terms of available resources, facilities, personnel, practices, and other medically relevant factors. If a party cannot demonstrate his or her expert‘s familiarity with such standard of care, then the expert‘s testimony is properly excluded.
- Malpractice: Physician and Patient: Proximate Cause: Expert Witnesses. To make a prima facie case for medical malpractice, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff‘s harm. Generally, expert testimony is required on each element.
Steven H. Howard, of Steve Howard Law, P.C., L.L.O., for appellant.
Cathy S. Trent-Vilim, Patrick G. Vipond, and Olivia R. McDowell, of Lamson, Dugan & Murray, L.L.P., for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
NATURE OF CASE
Ivan J. Konsul appeals the order of the district court for Douglas County that dismissed with prejudice his medical malpractice action against Juan Antonio Asensio, M.D. Konsul claims, inter alia, that the district court erred when it sustained Asensio‘s objection to testimony by Konsul‘s expert witness on the basis that the witness did not provide sufficient foundation to provide standard-of-care testimony. Konsul also claims the court erred in its rulings regarding Asensio‘s refusal during a deposition to answer certain questions regarding standards of care relative to the performance of other medical care providers.
STATEMENT OF FACTS
In November 2017, Konsul filed a complaint pursuant to the Nebraska Hospital-Medical Liability Act against Asensio and two other doctors. The two other doctors were later dismissed from the action, and in September 2019, Konsul filed the operative amended complaint that named Asensio as the sole defendant.
The claim arose from treatment Konsul received after being admitted to Creighton University Medical Center (Creighton) in Omaha, Nebraska, following a motor vehicle accident on November 12, 2015. Konsul was hospitalized for approximately 3 weeks, and during that time, he was treated by a team of doctors, including Asensio, who is a trauma surgeon. Following chest surgery to address multiple rib fractures, Konsul developed symptoms, including pain in the right ankle. An ultrasound was performed and showed that Konsul had acute right occlusive deep vein thrombosis, and a chest CT scan showed evidence of pulmonary emboli. The medical team determined that an inferior vena cava filter (IVC filter) should be placed to prevent migration of the deep vein thrombosis. On November 27, Asensio and a resident doctor performed surgery to place the IVC filter. When Konsul was later discharged from the hospital, Asensio signed discharge paperwork.
In the amended complaint, Konsul set forth claims that Asensio had committed medical malpractice and that Asensio had failed to obtain Konsul‘s informed consent before he placed the IVC filter. Konsul alleged that Asensio had violated applicable standards of care in various respects, including, inter alia, unnecessary placement of the filter, improper and inaccurate location of the filter, failing to warn Konsul of the long-term risks of the filter remaining in his body, failing to formulate and communicate an appropriate plan for timely and safe retrieval and removal of the filter, failing to inform Konsul and Konsul‘s other medical care providers of the need for evaluation and potential removal of the filter, and “[a]bandoning” Konsul 1 week after placement of the filter without informing Konsul or the other medical care providers that he did not intend to provide further treatment.
Konsul alleged that because of Asensio‘s failures, the filter was allowed to remain in his body for a prolonged period, beyond the time for safe removal of the filter. Konsul alleged that the filter had migrated throughout his body and became lodged behind his heart. Konsul alleged that other medical care providers had unsuccessfully attempted to remove the filter and that it was now permanently lodged behind his heart. Konsul alleged that but for Asensio‘s violation of applicable standards of care, the filter could have been timely removed, and would not have migrated to the position behind his heart, and he would not have suffered damages, including physical pain, mental suffering, and additional health care costs. Konsul alleged that because of the position of the filter behind his heart, the filter could move or migrate and could potentially kill him at any moment. He alleged that because he was aware of this possibility, he lives with “fear of instant death” and mental suffering.
As part of discovery, Asensio was deposed by Konsul on April 30, 2019. At the time of the deposition, Konsul had not yet dismissed the other defendants and had not yet filed the operative amended complaint. Konsul‘s questioning of Asensio began by covering Asensio‘s medical training and background and continued to Asensio‘s treatment of Konsul. Asensio generally stated that, regarding the IVC filter that he had placed, he had met the applicable standard of care relating to placement of the filter. In response to a question whether the filter was intended to be permanent or temporary, Asensio stated that he had been asked to place the filter and that “then, subsequently, that determination [of whether the filter would be permanent or temporary] was made by others that provided that particular care.” Asensio further stated that the “filter was placed to be able to prevent [Konsul] from having further pulmonary emboli” and that the decision whether the filter would be permanent or temporary “could have gone either way.” Asensio later stated that “other continuing postoperative care was rendered by [Konsul‘s] attending trauma surgeon of record, and those decisions [regarding removal of the filter], if they were made, [he] was not privy to them.”
At certain points in the deposition, Konsul asked questions regarding the medical care provided by other doctors, and Asensio‘s counsel objected and advised Asensio not to answer the questions. At one point, Konsul asked Asensio, “Are you aware of any standard of care violations committed by any of your colleagues?” Asensio‘s counsel stated, “Well, I guess I‘ll object. I don‘t know that he‘s got to be your expert on any of that subject.” Konsul‘s counsel asked what the objection was, and Asensio‘s counsel replied, “That you‘re making an expert witness out of the defendant.”
After further discussion, Konsul asked Asensio, “Doctor, are you going to come to trial and say that some other member of the team failed to meet the standard of care?” Asensio‘s counsel instructed Asensio to not answer the question. Konsul‘s counsel initially stated, “I think we‘ll convene the deposition and take this before the Court then.” After discussion with Asensio‘s counsel, Konsul‘s counsel decided to continue the deposition and to certify the questions Asensio refused to answer for review by the court.
At several later points in the deposition, Konsul asked questions regarding the standard of care of other doctors, to which Asensio‘s counsel advised Asensio not to answer, and Konsul indicated the questions would be certified for review by the court. The questions included the following: “So do you fault [the facility to which Konsul was discharged] for not making plans to remove the filter?” “Whether you‘ll answer it or not, do you know whether or not another health care provider for Konsul violated a standard of care?” “Doctor, have you had moments when you were concerned about the standard of care of a colleague in your career?” “Whose job was it to make arrangements for the filter removal?” Other questions certified by Konsul included the following: “Are you aware of this patient in any way being noncompliant or negligently contributing
On July 10, 2019, the district court ruled on a motion filed by Asensio in which he sought to prevent Konsul from “soliciting” Asensio‘s opinion as to any deviation from the standard of care by any other medical care provider who had provided medical care to Konsul. The court stated that Asensio had based his motion on attorney-client privilege. The court found that Asensio was justified in raising the privilege, and it therefore granted Asensio‘s motion and ordered that any future deposition should be limited accordingly.
After further proceedings and after the original judge assigned to this case retired and was replaced by another judge, Konsul filed a motion in February 2022 for the court to reconsider and reverse its ruling in the July 10, 2019, order. In the alternative, Konsul moved for an order in limine restricting Asensio from providing expert testimony on standard of care.
After briefing and oral argument, the court entered an order on January 13, 2023, ruling on Konsul‘s motions. The court first rejected Konsul‘s argument to the effect that during the deposition, Asensio did not follow
The case went to a jury trial in May 2023. Evidence presented by Konsul in his case in chief included Konsul‘s own testimony. Konsul also called as a witness the doctor who had unsuccessfully attempted to remove the IVC filter. This doctor testified solely as a fact witness, and Konsul did not attempt to establish the doctor as an expert witness or to elicit testimony regarding the standard of care applicable to Asensio. Konsul played portions of Asensio‘s
Konsul also called as a witness Dr. David Dreyfuss, who was intended to provide expert testimony regarding the standard of care applicable to Asensio. Dreyfuss began by testifying regarding his general background and qualifications, including his education, training, and experience. Dreyfuss testified that after completing residencies and fellowships in Vermont and New Jersey, he had practiced in Binghamton, New York, since 1987. Dreyfuss testified specifically regarding his experience placing and removing IVC filters. Dreyfuss testified that to prepare to testify in the present case, he had reviewed materials in the case, including, inter alia, depositions of Asensio and Konsul and medical records from Konsul‘s hospitalization. Dreyfuss responded in the affirmative to Konsul‘s question whether he was “prepared to tender opinions under a certain definition of standard of care here in Nebraska.”
When Konsul asked Dreyfuss to tell the jury his opinions regarding the standard of care in this case, Asensio requested a foundational voir dire before Dreyfuss gave his opinions. Asensio elicited testimony that Dreyfuss was not licensed to practice medicine in Nebraska, had not practiced medicine or trauma surgery in Nebraska, had spent his entire career in New York, and had never been in Omaha before the day of the trial. Dreyfuss testified that he was familiar with the existence of Omaha and Creighton but that he was not familiar with them in the sense that he did not know “anything substantive about them.” In response to Asensio‘s question, Dreyfuss agreed that in preparing to testify in this case, he had not come to Omaha or done any investigation into Creighton‘s medical center as to its facilities, personnel, and practices. At the end of this questioning, Asensio asked the court to strike Dreyfuss as an expert witness on the basis that Dreyfuss did not have sufficient foundation to give an opinion regarding the standard of care in Omaha. Asensio cited this court‘s decision in Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023), which had been filed on May 5, 2023, less than 1 week before the trial began.
The court allowed Konsul to question Dreyfuss to provide further foundation. Dreyfuss testified that regarding the issues in this case, there was a national standard of care that was “the same in Omaha as it is in Binghamton as it was in Vermont and New Jersey when [he] trained.” When Konsul attempted to question Dreyfuss regarding the national standard of care, Asensio objected based on foundation. In a sidebar conference, the court and counsel discussed Carson v. Steinke, and the court set forth its understanding of how it should be applied to the present case. Konsul continued questioning Dreyfuss to attempt to elicit the necessary foundation. Dreyfuss testified that he had given expert testimony in communities that he considered similar to Omaha, and he specifically identified “New York City; Philadelphia; Miami; Tampa, Florida — several large cities throughout the country — Las Vegas, Nevada.” Konsul questioned Dreyfuss regarding what he learned about medical resources in Omaha by reviewing the records in this case. He testified, inter alia, that “[t]here was never any mention of any equipment not being available,” and he specifically noted that a “filter was readily available.” Dreyfuss testified that facilities available in Omaha were “wonderful and exemplary” and that medical personnel at Creighton included “the full gamut of very qualified people.” Dreyfuss testified that he was familiar with the resources, facilities, personnel, and practices in communities similar to
After various additional attempts by Konsul to establish foundation and further objections by Asensio, the court ultimately granted Asensio‘s motion to strike Dreyfuss as an expert witness. The court reasoned that under Carson v. Steinke, “in order to get to universal standard of care,” the witness needs to have “personal knowledge” of the practice of medicine in a specific locality. The court stated that Dreyfuss had not “availed himself of doing an investigation to find out what the standard of care is [in Omaha] and to find out what this community offers in terms of available facilities, personnel, equipment, or practices” and that Dreyfuss’ “only information is what he read regarding what facility was available, what personnel was available, what equipment was available, and what practice was available in this one particular case.” The court stated that Dreyfuss needed the understanding of what was available in Omaha to say that the standard of care in another community “would be the same as Omaha‘s standard of care” and that such standard is “equal to what he‘s saying the national standard is.” Based on this reasoning, the court sustained Asensio‘s foundation objection and ruled that Dreyfuss was not competent to testify as to standard of care and that any such testimony would be excluded.
Thereafter, Konsul rested his case in chief, and Asensio moved for a directed verdict on the basis that there was not sufficient evidence of the standard of care, deviation from the standard of care, or causation. The district court sustained the motion for directed verdict and reasoned that because Konsul had provided no admissible expert testimony on the standard of care, which was a necessary element of his claim, reasonable minds could not differ that he had not proved his claim. The court filed an order of dismissal dated May 11, 2023, in which it set forth its reasoning for striking Dreyfuss’ expert testimony on standard of care and for determining that a verdict should be directed against Konsul. The court dismissed Konsul‘s complaint with prejudice.
Konsul appeals the order that granted a directed verdict and dismissed his complaint with prejudice.
ASSIGNMENTS OF ERROR
Konsul generally claims that the district court erred when it overruled his motion for reconsideration of its rulings regarding the deposition of Asensio. He specifically claims that the district court erred when it treated Konsul‘s questioning of Asensio as a request to appoint Asensio as an expert witness under
STANDARDS OF REVIEW
[1,2] Generally, the control of discovery is a matter for judicial discretion, and decisions regarding discovery will be upheld on appeal in the absence of an abuse of discretion. Timothy L. Ashford, PC LLO v. Roses, 313 Neb. 302, 984 N.W.2d 596 (2023). However, the district court‘s rulings relating to depositions taken during
[3,4] We review de novo whether the trial court applied the correct legal standards for admitting an expert‘s testimony, and we review for abuse of discretion how the trial court applied the appropriate standards in deciding whether to admit or exclude an expert‘s testimony. Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023). An abuse of discretion occurs when a trial court‘s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
[5,6] A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law. Id. In reviewing a trial court‘s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Id.
ANALYSIS
Deposition Questions.
Konsul assigns error to the court‘s overruling of his motion for reconsideration and its resolution of issues therein related to the deposition of Asensio. He specifically argues that the court failed to enforce Rule 6-330, which he contends prohibited Asensio‘s counsel from instructing Asensio not to answer certain of Konsul‘s questions. Konsul contends that the court erred in its reasoning when it treated Konsul‘s questioning of Asensio as a request under
We first examine Rule 6-330, which governs the taking of depositions during discovery. Subsection (c) addresses the conduct of examination and cross-examination, and subsection (c)(1) provides, in relevant part, that “[a]ll objections made at time of the examination . . . to the evidence presented . . . shall be noted by the officer upon the deposition” and that “[e]vidence objected to shall be taken subject to the objections.” Subsection (c)(2) provides, “An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d).” Subsection (d) provides, in part, that
the deponent or a party may move to terminate or limit the deposition on the ground that (1) it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party or (2) the interpreter is not rendering a reasonably complete and accurate interpretation or is repeatedly altering, omitting, or adding things, including explanations, to what is stated.
[7] Rule 6-330(c)(2) mirrors
Contrary to the foregoing statement, Asensio asserts that it was proper for his counsel to instruct him not to answer the questions because it was necessary to preserve a privilege. Asensio makes no claim that either of the other exceptions under Rule 6-330(c)(2) was applicable. Asensio asserts that
Initially, we observe that it is not clear to us that by asking the questions at issue, Konsul was, as Asensio claims, attempting to have Asensio provide expert testimony for Konsul. Many of the questions appear aimed at discovering whether Asensio would offer trial testimony that suggested that other medical personnel were responsible for any adverse issues Konsul had experienced related to the placement of the filter. We know of no reason why Konsul would be precluded from probing the possible testimony Asensio might offer at trial, including any testimony that would blame others for possible adverse outcomes. But even assuming Konsul was attempting to have Asensio provide expert testimony, we determine that
The situation of the court appointed expert who is expected to delve deeply into the problem and arrive at an informed and unbiased opinion differs utterly from that of an expert called by a party to state what facts he may know and what opinion he may have formed without being asked to make any further investigation.
The Second Circuit further stated that “quite apart from the inference to be drawn from the provision with respect to court-appointed experts,” id. at 819, common law principles “do not recognize any general privilege for experts,” id. at 820. The Second Circuit stated that under federal law “there is no constitutional or statutory privilege against the compulsion of expert testimony, and we perceive no sufficient basis in principle or precedent for holding that the common law recognizes any general privilege to withhold . . . expert knowledge.” Id. By reference to Nebraska jurisprudence, we agree.
We recognize that some other states have held that statutes that are similar to
We decline to find such a privilege to be “implied” by or “inherent” in
Except as otherwise required by the Constitution of the United States or the State of Nebraska or provided by Act of Congress, or the Legislature of the State of Nebraska, by these rules or by other rules adopted by the Supreme Court of Nebraska which are not in conflict with laws governing such matters, no person has the privilege to, inter alia, “[r]efuse to be a witness” or “[r]efuse to disclose any matter.”
We read
We determine that the district court erred when it held that
Dreyfuss as Expert Witness and Locality Rule.
Konsul claims that the district court erred when it sustained Asensio‘s foundation objection and ruled that, based on the locality rule as set forth in Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023), Dreyfuss could not testify regarding the applicable standard of care in Omaha. We find no error in the district court‘s ruling.
[8,9] We have stated that it is the burden of the proponent of expert testimony to establish the necessary foundation for its admission. Id. Expert testimony offered to establish the standard of care in a medical malpractice case is admissible only if its proponent can demonstrate the expert‘s familiarity with the relevant standard of care in the defendant‘s community or a similar community. Id.
[10,11] Expert testimony concerning the standard of care in a medical malpractice case should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. Carson v. Steinke, supra. Where an expert‘s opinion is mere speculation or conjecture, it is irrelevant and cannot assist the trier of fact. Id. Evidence of an expert‘s experience and education without any evidence of familiarity with the relevant or similar locality is insufficient to affirmatively demonstrate that the expert is competent to testify as to the standard of care. Id. Evidence that an expert had never practiced in a defendant‘s locality goes to the weight of the evidence but does not keep the expert from testifying to the standard of care in the relevant locality if the expert testifies that he or she is nevertheless familiar with the standard of care in the same or similar locality. Id.
Section 44-2810 does not define “similar community,” but we interpret this term in light of the general purpose of
[12] In Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023), we held that the burden is on the proponent of standard-of-care testimony to demonstrate that the expert is familiar with the customary practice among physicians in the defendant‘s community or a community that is similar in terms of available resources, facilities, personnel, practices, and other medically relevant factors. If a party cannot demonstrate his or her expert‘s familiarity with such standard of care, then the expert‘s testimony is properly excluded. Id. In Carson v. Steinke, we declined an invitation to interpret
We further stated in Carson v. Steinke that expert testimony establishing a national standard of care is admissible if the expert can establish that the national standard of care does not differ in the defendant‘s community or a similar community. We stated that testimony regarding a national standard of care must be coupled with the expert‘s explanation of why the national standard applies under the circumstances.
Applying the principles set forth in Carson v. Steinke, the district court did not abuse its discretion when it concluded that Konsul failed to establish Dreyfuss’ familiarity with the standard of care in Omaha or that Omaha was similar to other communities with which Dreyfuss was familiar in terms of available medical facilities, personnel, services, or practices.
Dreyfuss initially testified regarding his training and experience in locations including Vermont, New Jersey, and New York. He testified that he prepared for the present case by reviewing case materials, including depositions of Asensio and Konsul and medical records from Konsul‘s hospitalization. After this testimony, Dreyfuss testified that he was prepared to opine on the standard of care in Nebraska. At that point, Asensio requested a foundational voir dire before Dreyfuss gave his opinion, and in response to Asensio‘s questioning, Dreyfuss testified that he was not licensed to practice medicine in Nebraska, had not practiced in Nebraska, and had never been in Omaha before the day of the trial. Dreyfuss also testified that he was familiar with the existence of Omaha and Creighton but did not know “anything substantive about them.” He conceded that in preparing to testify in this case, he had not come to Omaha or done any investigation into the facilities, personnel, and practices in Omaha.
After Asensio moved to strike Dreyfuss’ testimony regarding the standard of care in Omaha, the court allowed Konsul to question Dreyfuss to provide further foundation. At that point, Dreyfuss generally testified that there was a national standard of care that applied in Omaha, as well as in the locations in which he had trained and practiced. Dreyfuss also testified that he had given testimony in communities he
We agree with the district court‘s determination that this foundation was not sufficient under our decision in Carson v. Steinke, 314 Neb. 140, 989 N.W.2d 401 (2023). Although Dreyfuss testified that the other communities were similar to Omaha, he did not specifically testify that the communities were similar to Omaha in terms of available resources, facilities, personnel, practices, and other medically relevant factors. Nor did Dreyfuss testify that he was familiar with Omaha in terms of these medically relevant factors; instead, it appeared that his knowledge of Omaha was essentially limited to what occurred in the present case. Dreyfuss also testified that a national standard of care applied in Omaha and in the other communities. However, Dreyfuss did not demonstrate sufficient familiarity with the medically relevant factors in Omaha to establish that the national standard of care did not differ from the standard of care in Omaha or to explain why the national standard applied under the circumstances of this case.
We conclude that the district court properly determined that there was not sufficient foundation under the locality rule for Dreyfuss to opine on the standard of care in this case. The district court did not err when it struck Dreyfuss’ testimony regarding the standard of care.
Deposition Issues, Directed Verdict, and Dismissal of Case.
Without Dreyfuss’ testimony, Konsul provided no evidence of the standard of care, and the district court dismissed Konsul‘s case. Having determined that the district court did not err in excluding the testimony of Dreyfuss, we determine that the district court did not err when it granted Asensio‘s motion for directed verdict and dismissed the case with prejudice.
A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one conclusion from the evidence, that is, when an issue should be decided as a matter of law. Carson v. Steinke, supra. In reviewing a trial court‘s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence. Id.
[13] To make a prima facie case for medical malpractice, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff‘s harm. Id. Generally, expert testimony is required on each element. Id. Because Dreyfuss’ testimony was properly excluded, Konsul presented no expert testimony on any of the three elements to make a prima facie case against Asensio. Accordingly, the district court correctly directed a verdict in favor of Asensio.
As we foreshadowed above, we further determine that the district court‘s error regarding the deposition issues was harmless considering the proper dismissal of the action based on Konsul‘s failure to present evidence regarding the standard of care. Nevertheless, Konsul argues that if Asensio had been required to answer all the questions at the deposition, Asensio‘s answers to the questions could have provided evidence regarding the standard of care. We reject these assertions. The questions
Konsul also argues that Asensio‘s answers to the questions regarding the other medical care providers could have been reviewed by Dreyfuss and would have qualified Dreyfuss to testify regarding the standard of care in Omaha. Again, we note that Asensio testified regarding the standard of care applicable to his work, and his answers to the questions would not have provided further evidence regarding the standard of care applicable to him and his role in the underlying events. Furthermore, the answers would not have provided the sort of information regarding medically relevant factors that would have qualified Dreyfuss to testify regarding the standard of care in Omaha relevant to the present action against Asensio. We therefore determine that the district court‘s error regarding the deposition issues was harmless considering the proper dismissal of the action based on Konsul‘s failure to provide evidence of the standard of care applicable to Asensio. Answers to questions regarding the other medical care providers who performed different tasks would not have informed an assessment that was relevant to Asensio‘s actions, which formed the basis of the case.
CONCLUSION
We determine that the district court did not err when it struck Dreyfuss as an expert witness and when it thereafter granted Asensio‘s motion for a directed verdict and dismissed Konsul‘s case for failure to provide evidence of the standard of care applicable to Asensio. Although we determine that the district court erred as a matter of law when it reasoned that
AFFIRMED.
CASSEL, J., dissenting in part.
Upon further reflection, I conclude that one principle articulated in Carson v. Steinke1 is inconsistent with and contrary to the locality rule mandated by
A national standard of care is simply contrary to the locality rule. If a standard of care does not apply to a particular locality, then, by definition, it cannot be a
The instant case illustrates the confusion that will ensue from attempts to inject a “national” standard of care into a Nebraska medical malpractice action. If unaccompanied by locality testimony, national standard testimony is insufficient. Where both are presented, national standard testimony serves only to cloud the issue.
I express no opinion regarding the wisdom of the Legislature‘s choice or any alternative available to it. That is not my role. But unless and until the Legislature amends
To the extent that the majority opinion here adheres to the quoted articulation, I respectfully dissent. In all other respects, I agree with the majority opinion.