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Jacobson v. Shresta

Court of Appeals of Nebraska

August 13, 2013

Michael L. Jacobson, Special Administrator of the Estate of Virginia A. Jacobson, deceased, and Myron J. Jacobson, Appellants,
v.
Sherry K. Shresta, M.D., and Gaston Cornu-Labat, M.D., Appellees.

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Appeal from the District Court for Sheridan County: RANDALL L. LIPPSTREU, Judge. Affirmed.

Christopher P. Welsh and James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for appellants.

Mark A. Christensen, Tracy A. Oldemeyer, Cristin McGarry Berkhausen, and Elizabeth A. Tiarks, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.

Sievers, Pirtle, and Riedmann, Judges.

Syllabus by the Court

1. Appeal and Error. In a bench trial of an action at law, the factual findings by the trial court have the effect of a jury verdict and will not be set aside unless they are clearly wrong.

2. Judgments: Evidence: Appeal and Error. An appellate court reviews the sufficiency of the evidence to sustain a judgment by resolving every controverted fact in favor of the successful party and giving such party the benefit of every inference that can reasonably be deduced from the evidence.

3. Trial: Judges. A trial judge has broad discretion over the conduct of a trial, and absent abuse, that discretion should be respected.

4. Trial: Parties. Bifurcation of a trial may be appropriate where separate proceedings will do justice, avoid prejudice, and further the convenience of the parties and the court.

5. Trial. Bifurcation is particularly proper where a potentially dispositive issue may be decided in such a way as to eliminate the need to try other issues.

6. Records: Appeal and Error. It is incumbent upon the appellant to present a record supporting the errors assigned; absent such a record, an appellate court will affirm the lower court's decision regarding those errors.

7. Trial: Waiver: Appeal and Error. Failure to make a timely objection

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waives the right to assert prejudicial error on appeal.

8. Political Subdivisions Tort Claims Act: Jurisdiction. While not a jurisdictional prerequisite, the filing or presentment of a claim to the appropriate [21 Neb.App. 103] political subdivision is a condition precedent to commencement of a suit under the Political Subdivisions Tort Claims Act.

9. Independent Contractor: Words and Phrases. An independent contractor is one who, in the course of an independent occupation or employment, undertakes work subject to the will or control of the person for whom the work is done only as to the result of the work and not as to the methods or means used.

10. Employer and Employee: Independent Contractor: Master and Servant. Ordinarily, when a court is presented with a dispute regarding a party's status as an employee or an independent contractor, the party's status is a question of fact which must be determined after consideration of all the evidence in the case. However, where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.

11. Employment Contracts: Master and Servant: Words and Phrases. The phrase " where the inference is clear," in the context of whether a master and servant relationship exists, means that there can be no dispute as to pertinent facts pertaining to the contract between and the relationship of the parties involved and that only one reasonable inference can be drawn therefrom.

12. Employer and Employee: Independent Contractor. There is no single test for determining whether one performs services for another as an employee or as an independent contractor, and the following factors must be considered: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.

13. Contracts. A writing which merely denominates a relationship may not be used to conceal the true arrangement.

14. Employer and Employee: Independent Contractor. The right of control is the chief factor distinguishing an employment relationship from that of an independent contractor.

15. Employer and Employee: Independent Contractor. The less skill required by a job, the greater the indication that the worker is an employee and not an independent contractor.

16. Physicians and Surgeons. The occupation of a physician is a skilled profession.

17. Employer and Employee. An ongoing relationship not limited to a specific duration or task is suggestive of an employment relationship.

18. Employer and Employee: Wages. The payment of wages, specifically limited wages, argues for an employment relationship.

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19. Employer and Employee: Taxes: Social Security. The deduction of Social Security taxes and the withholding of income tax tend to indicate an employer-employee relationship, while the failure to do so is a contrary indication.

[21 Neb.App. 104] 20. Health Care Providers: Physicians and Surgeons. The provision of medical services by physicians on staff at a hospital has been found to be part of the regular business of the hospital.

21. Employer and Employee: Claims: Political Subdivisions Tort Claims Act. Where an employee is not acting within the scope of his or her employment when the employee causes an injury, the injured party may pursue a claim against the employee individually without complying with the requisites of the Political Subdivisions Tort Claims Act.

22. Negligence: Health Care Providers: Limitations of Actions. Neb.Rev.Stat. ยง 44-2828 (Reissue 2010) provides for the filing of claims against health care providers within 2 years from the date of the negligent treatment.

23. Health Care Providers: Claims: Political Subdivisions Tort Claims Act. The operation of the Nebraska Hospital-Medical Liability Act does not excuse a plaintiff from compliance with the requirement under the Political Subdivisions Tort Claims Act that the claim be presented to the political subdivision prior to filing suit.

24. Health Care Providers: Political Subdivisions Tort Claims Act. The Political Subdivisions Tort Claims Act provides for interaction between the Political Subdivisions Tort Claims Act and the Nebraska Hospital-Medical Liability Act.

Pirtle, Judge.

INTRODUCTION

Michael L. Jacobson, special administrator of the estate of Virginia A. Jacobson, and Myron J. Jacobson, Virginia's husband, filed a wrongful death action, predicated upon medical malpractice, in the district court for Sheridan County, Nebraska, against Sherry K. Shresta, M.D., and Gaston Cornu-Labat, M.D. (collectively the defendants). The district court entered judgment in favor of the defendants, determining that they were employees of Gordon Memorial Hospital (the Hospital), a political subdivision, and that they were acting within the scope of their employment at the time of the alleged [21 Neb.App. 105] negligence. The court dismissed the Jacobsons' claims, determining that they failed to comply with the 1-year presentment requirement of the Political Subdivisions Tort Claims Act (Tort Claims Act). Finding no merit to the Jacobsons' assignments of error, we affirm.

BACKGROUND

On March 28, 2005, the Jacobsons filed a wrongful death lawsuit against the defendants in the district court for Sheridan County. The Jacobsons alleged that on March 29, 2003, Shresta admitted Virginia to the Hospital after Virginia began coughing while eating roast beef. After Virginia's admission, Cornu-Labat performed an esophagogastroscopy on Virginia. Postoperatively, Virginia " coded." A piece

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of meat was found at the level of her vocal cords and suctioned out. A subsequent x ray showed aspiration pneumonia. Virginia remained under the medical care of the defendants ...


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