Pamela Pflueger-James and Michael James, husband and wife, Appellants,
Pope Paul VI Institute Physicians, P.C., doing business as Pope Paul VI Institute, et al., Appellees.
Appeal from the
District Court for Douglas County: LEIGH ANN RETELSDORF, Judge. Reversed and
remanded for a new trial.
Diana J. Vogt and
Thomas D. Prickett, of Sherrets, Bruno & Vogt, L.L.C., for appellants.
David D. Ernst and Lisa M. Meyer, of Pansing, Hogan, Ernst & Bachman, L.L.P., for appellees.
Riedmann, Judge, and Mullen, District Judge, Retired.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to the discretion of the trial court, and an appellate court will not disturb the trial court's decision absent an abuse of discretion.
2. Malpractice: Physician and Patient: Negligence: Informed Consent. An allegation that a medical provider breached a duty of care by deviating from the accepted standard of care in negligently performing unnecessary and unwarranted surgery on a patient, without the proper informed consent of the patient, is sufficient to state a claim for negligence through lack of informed consent.
3. Informed Consent: Words and Phrases. Informed consent is defined as consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers.
4. Informed Consent: Proof: Proximate Cause. Neb.Rev.Stat. § 44-2820 (Reissue 2010) requires a plaintiff claiming lack of informed consent to prove by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages claimed.
[21 Neb.App. 636] 5. Pleadings: Appeal and Error. In reviewing whether a trial court erred in denying a motion to amend a pleading, an appellate court views the record as it existed at the time the motion was filed.
6. Pleadings. Leave of court to amend a pleading shall be freely given when justice so requires.
7. Pleadings. A district court's denial of leave to amend a pleading is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the nonmoving party can be demonstrated. Delay alone is not a reason in and of itself to deny leave to amend; the delay must have resulted in unfair prejudice to the party opposing amendment.
8. Pleadings: Proof. The burden of proof of prejudice is on the party opposing the amendment of a pleading. Prejudice does not mean inconvenience to a party, but instead requires that the nonmoving party show that it was unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the amendments been timely.
9. Actions: Pleadings: Words and Phrases. A cause of action consists of the fact or facts which give one a right to judicial relief against another; a theory of recovery is not itself a cause of action. Thus, two or more claims in a complaint arising out of the same operative facts and involving the same parties constitute separate legal theories, of either liability or damages, and not separate causes of action.
10. Informed Consent. A claim for lack of informed consent based upon the same set of facts alleged in an existing complaint is a theory of recovery, not a new cause of action.
Pamela Pflueger-James and Michael James, plaintiffs, sued Pope Paul VI Institute Physicians, P.C., doing business as Pope Paul VI Institute; Thomas W. Hilgers, M.D.; and John or Jane Doe, defendants, to recover damages arising from the [21 Neb.App. 637] actions of Dr. Hilgers. After allowing plaintiffs to amend their complaint once, the district court denied any further amendments. The court granted defendants' motion to dismiss one of plaintiffs' claims, and a jury found in favor of defendants on the remaining claim. Plaintiffs appeal. We conclude that ...