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
__ . 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.
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.
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.
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.
Pursuant to Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402
(Reissue 2008), evidence which is not relevant is not
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.
Testimony: Appeal and Error. Error in the
admission of irrelevant and inadmissible testimony does not
require reversal if the trial court gave a sufficient
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
from the District Court for Douglas County: Shelly R.
Garland, of Greg Garland Law, Tara DeCamp, of DeCamp Law, PC,
L.L.O., and Kathy Pate Knickrehm for appellant.
M. Welch and David A. Blagg, of Cassem, Tierney, Adams, Gotch
& Douglas, for appellees.
Chief Judge, and Irwin and Bishop, Judges.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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
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
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
jury returned a unanimous verdict in favor of Dr. Schroeder
and MGI, and the court entered judgment accordingly. 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