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Hillyer v. Midwest Gastrointestinal Associates, PC

Court of Appeals of Nebraska

June 14, 2016

Denice Hillyer, appellant,
Midwest Gastrointestinal Associates, PC, and Bradley Schroeder, M.D., appellees.

         1. Trial: Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

         2. __:: __ . In a civil case, the admission or exclusion of evidence is not reversible error unless it unfairly prejudiced a substantial right of the complaining party.

         3. Malpractice: Physician and Patient: Proof: Proximate Cause. In a malpractice action involving professional negligence, the burden of proof is upon the plaintiff to demonstrate the generally recognized medical standard of care, that there was a deviation from that standard by the defendant, and that the deviation was the proximate cause of the plaintiff's alleged injuries.

         4. Rules of Evidence: Words and Phrases. Pursuant to Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008), relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

         5. Rules of Evidence. Pursuant to Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

         6. __. Pursuant to Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2008), evidence which is not relevant is not admissible.

         [24 Neb.App. 76]

         7. Evidence: Malpractice: Negligence: Informed Consent. Evidence of risk-of-procedure or risk-of-surgery discussions with the patient is generally irrelevant and unfairly prejudicial where the plaintiff alleges only negligence, and not lack of informed consent.

         8. Testimony: Appeal and Error. Error in the admission of irrelevant and inadmissible testimony does not require reversal if the trial court gave a sufficient curative instruction.

         9. Jury Instructions: Presumptions. It is presumed a jury followed the instructions given in arriving at its verdict, and unless it affirmatively appears to the contrary, it cannot be said that such instructions were disregarded.

         Appeal from the District Court for Douglas County: Shelly R. Stratman, Judge.

          Greg Garland, of Greg Garland Law, Tara DeCamp, of DeCamp Law, PC, L.L.O., and Kathy Pate Knickrehm for appellant.

          Brien M. Welch and David A. Blagg, of Cassem, Tierney, Adams, Gotch & Douglas, for appellees.

          Moore, Chief Judge, and Irwin and Bishop, Judges.

          Bishop, Judge.

         Denice Hillyer brought a medical malpractice action against Bradley Schroeder, M.D., and his employer, Midwest Gastrointestinal Associates, P.C. (MGI), based on alleged negligence in the course of performing a colonoscopy. The district court for Douglas County entered judgment on the jury's verdict in favor of Dr. Schroeder and MGI.

         Hillyer appeals, alleging the trial court erred in allowing evidence of Dr. Schroeder's discussions with Hillyer and other patients regarding risks and complications associated with colonoscopies. We find that under the circumstances of this case, it was error to allow evidence of such discussions by Dr. Schroeder, because the medical malpractice action did not include a claim for lack of informed consent, making such evidence irrelevant as to whether Dr. Schroeder deviated [24 Neb.App. 77] from the standard of care. However, any error in admitting such evidence does not constitute reversible error given the trial court's curative instruction to the jury. Accordingly, we affirm.


         On August 17, 2011, Hillyer went to a medical facility in Omaha, Nebraska, for a screening colonoscopy. Dr. Schroeder performed the colonoscopy. During the colonoscopy, Hillyer's colon was perforated. As a result of the perforation, Hillyer required emergency surgery to repair the perforation, was hospitalized for several weeks, and had an ileostomy bag for 5/½ months until a subsequent surgery was performed. She had various other injuries, both physical and emotional, and incurred more than $300, 000 in medical expenses.

         Hillyer initially filed a complaint against Dr. Schroeder and MGI for medical malpractice alleging professional negligence and lack of informed consent. However, in her amended complaint, Hillyer alleged only professional negligence; her claim for lack of informed consent had been withdrawn. Specifically, Hillyer alleged that Dr. Schroeder was negligent because he used excessive force while performing a colonoscopy on her and that such excessive force caused the shaft of the "colono-scope" to perforate her colon.

         Hillyer filed a motion in limine asking that the following matters not be mentioned in the jury's presence:

15. All medical consent forms, including but not limited to, consent to treat and perform the colonoscopy. . . .
16.Any discussion that [Hillyer] was aware of the risks and complications of colonoscopies. . . .
17. Any discussion regarding the practice and/or routine of explaining risks of procedures to patients.

         Hillyer sought exclusion of the above matters on the basis of "NRE 402 Relevance, 403 Relevance outweighed." In their amended response to Hillyer's motion in limine, Dr. Schroeder and MGI did not object to paragraph 15. They did however object to paragraphs 16 and 17, arguing:

[24 Neb.App. 78] This evidence is relevant to establish the facts and circumstances leading to the perforation in this case. The average layperson has undergone a medical procedure and has experienced an informed consent discussion with his/her physician. Accordingly, members of the jury may be led to incorrectly infer that such a conversation did not occur in this matter between Dr. Schroeder and [Hillyer] if Dr. Schroeder is prohibited from discussing that such a conversation did occur prior to the procedure. Additionally, this discussion is relevant to establishing the facts and circumstances of the procedure at issue and Dr. Schroeder's recollection of his interactions with [Hillyer].

         During a hearing on the motion in limine, the trial court sustained Hillyer's motion with regard to paragraph 15, citing no objection by Dr. Schroeder or MGI. However, the trial court reserved ruling on paragraphs 16 and 17.

         During the jury trial, the only real issues were whether Dr. Schroeder used excessive force during Hillyer's colonoscopy (thereby deviating from the standard of care) and, if so, the extent of Hillyer's damages. Hillyer testified regarding the injuries she sustained, the treatment she underwent, and the damages she incurred as a result of her perforated colon.

         Hillyer's expert, Dr. Mark Molos, testified that the standard of care requires a physician performing a colonoscopy to "advance the scope under the appropriate amount of exertion or pressure." Based on his review of the case, Dr. Molos opined that Dr. Schroeder breached the standard of care by applying excessive force and pressure, which resulted in a "shaft loop" perforation of Hillyer's colon. Dr. Molos testified that "[a] shaft loop perforation by definition is caused by excessive pressure and force." He also opined that only excessive force would cause a perforation the size that Hillyer had, which was 6 to 7 centimeters. On cross-examination, Dr. Molos agreed that just because a patient has a medical complication does not mean that the doctor fell below the standard of care, that [24 Neb.App. 79] complications can and do occur even when the doctor provided excellent care, and that perforations can occur even when the doctor is meeting the standard of care.

         Dr. Schroeder's expert, Dr. Alan Thorson, testified that perforations are a known and accepted complication of colonoscopies and that a colon perforation can occur even when the best medical care is provided. Dr. Thorson disagreed with Dr. Molos' testimony that a large perforation like Hillyer's could have occurred only due to excessive force. Dr. Thorson opined that Hillyer's abdominal adhesions were a proximate cause of her perforation. According to Dr. Thorson, adhesions can hold the colon in a more fixed position, and when doing a colonoscopy, the endoscopist "can end up with a pressure against the colon that's enhanced because of the fixation of the adhesions even though [the endoscopist] might be putting very acceptable pressure [sic]"; the endoscopist might not even feel resistance when advancing the scope. Based on his review of the case, Dr. Thorson opined that Dr. Schroeder met the standard of care and did not use excessive force while performing Hillyer's colonoscopy.

         Both experts had their credibility challenged. For example, Dr. Molos was questioned regarding his honesty, personal history of being sued for malpractice, and long history of testifying in medical malpractice cases (usually on behalf of plaintiffs). And Dr. Thorson was questioned regarding potential bias in favor of Dr. Schroeder due to patient referrals.

         Dr. Schroeder testified regarding the steps he takes before doing colonoscopies: He meets the patients, gets their health histories, does a physical examination, and then begins the consent process. Over Hillyer's repeated objections, Dr. Schroeder was allowed to testify that with every patient, he goes through the list of complications and risks for the procedure, including perforations and the potential need for surgery, the alternatives, and the fact that a patient does not even have to do the examination. Hillyer also objected to Dr. Schroeder's testimony that he goes through the same process every time and [24 Neb.App. 80] has had patients refuse the procedure after discussion. Dr. Schroeder was further allowed to testify, over objection, that he discussed potential complications and risks, including perforation and the potential need for surgery, with Hillyer prior to her colonoscopy.

         Dr. Schroeder testified that he did not encounter resistance while performing Hillyer's colonoscopy and did not use excessive force to advance the colonoscope. He stated he met the standard of care when he performed Hillyer's colonoscopy.

         The jury returned a unanimous verdict in favor of Dr. Schroeder and MGI, and the court entered judgment accordingly. Hillyer timely appeals.


         Hillyer assigns that the trial court abused its discretion and committed prejudicial error in allowing evidence of Dr. Schroeder's discussions with Hillyer and other patients ...

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