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Ammon v. Nagengast

Court of Appeals of Nebraska

April 18, 2017

Sheena Ammon, Special Administrator of the Estate of Patricia Cody, appellant,
Stephen Nagengast, M.D., and General Surgery Associates, LLC, appellees.

         1. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, which an appellate court independently decides.

         2. __: __. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial and otherwise adversely affected a substantial right of the appellant.

         3. Negligence: Liability: Damages. Generally, an act wrongfully done by the joint agency or cooperation of several persons, or done contemporaneously by them without concert, renders them liable for all damages, both economic and noneconomic, jointly and severally.

         4. Negligence: Tort-feasors: Liability: Damages. Under joint and several liability, either tort-feasor may be held liable for the entire damage, and a plaintiff need not join all tort-feasors as defendants in an action for damages.

         5. Tort-feasors: Compromise and Settlement. If a plaintiff settles with one of the jointly and severally liable tort-feasors, then the plaintiff's recovery against the remaining tort-feasors is reduced by the actual settlement amount.

         6. Parties: Time. The proper timeframe to consider whether there are multiple defendants is when the case is submitted to the finder of fact.

         7. Tort-feasors: Liability: Damages. Under the comparative fault statutory scheme in Nebraska, joint tort-feasors who are defendants in an action involving more than one defendant share joint and several liability to the claimant for economic damages.

         [24 Neb.App. 133] 8. Tort-feasors: Compromise and Settlement: Liability. When the claimant settles with a joint tort-feasor, the claimant forfeits that joint and several liability.

         9. Tort-feasors: Compromise and Settlement. The claimant cannot recover from the nonsettling joint tort-feasor more than that tort-feasor's proportionate share in order to compensate for the fact that the claimant made a settlement with another that may prove to be inadequate.

         10. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have the jury instructed upon only those theories of the case which are presented by the pleadings and which are supported by competent evidence.

         11. Jury Instructions. The general rule is that whenever applicable, the Nebraska Jury Instructions are to be used.

         12. Waiver: Appeal and Error. Errors not assigned in an appellant's initial brief are waived and may not be asserted for the first time in a reply brief or during oral argument.

         Appeal from the District Court for Otoe County: Jeffrey J. Funke, Judge. Affirmed.

          Greg Garland, of Greg Garland Law, Tara DeCamp, of DeCamp Law, P.C., L.L.O., Kent A. Schroeder, of Ross, Schroeder & George, L.L.C., and Kathy Pate Knickrehm for appellant.

          William L. Tannehill and John P. Weis, of Wolfe, Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.


          PIRTLE, JUDGE.


         Sheena Ammon, the special administrator of the estate of Patricia Cody, brought a medical malpractice action against Denise Husen Murry; Murry's employer, Sleep Tight Anesthesia, P.C.; St. Mary's Community Hospital; Stephen Nagengast, M.D.; and Nagengast's employer, General Surgery Associates LLC (GSA). Ammon alleged that the defendants were professionally negligent and that their joint and several acts proximately caused injury to and the death of her mother, Cody.

         [24 Neb.App. 134] Prior to trial, the claims against several of the defendants were resolved by settlement. The case was tried to a jury, which returned a verdict in favor of the remaining defendants, Nagengast and GSA. Ammon timely appealed. Finding no reversible error, we affirm.


         The underlying facts of this case are not in dispute. Cody underwent a medical procedure to remove abdominal adhesions at St. Mary's Community Hospital in Nebraska City, Nebraska, on January 23, 2012. Nagengast, a board-certified general surgeon who has been licensed to practice medicine in Nebraska since 1991, was scheduled to perform the surgery.

         A certified nurse anesthetist (CRNA), Murry, assisted Nagengast. Murry was employed as an independent practitioner at the time of the surgical procedure. Nagengast experienced "difficulty insufflating" Cody at the start of the laparoscopic procedure, and opted to change to an "open technique." Roughly 5 minutes into the procedure, Murry alerted Nagengast that Cody was doing poorly and that the procedure needed to be aborted.

         Cody no longer had a pulse, and her condition did not improve once the "insufflation gas" was removed. Nagengast testified that he was not informed of any change in Cody's condition until she was in cardiac arrest. Oxygen was provided to Cody and the "advanced cardiac life support" protocol, including the administration of cardiopulmonary resuscitation (CPR), began immediately. The medical staff performed CPR for 15 minutes, and after Cody's cardiac status resumed, she was transferred to a hospital in Lincoln, Nebraska, where she died on January 24, 2012.

         Ammon, the special administrator of Cody's estate, brought a medical malpractice action against Murry, Sleep Tight Anesthesia, St. Mary's Community Hospital, Nagengast, and GSA. Ammon alleged that Murry, Nagengast, and St. Mary's Community Hospital were professionally negligent and that [24 Neb.App. 135] their joint and several acts proximately caused the injury to and the death of Cody.

         On November 14, 2014, St. Mary's Community Hospital was dismissed from this action with prejudice. Prior to trial, Ammon, Murry, and/or Sleep Tight Anesthesia reached a confidential settlement agreement, and the claims against them were dismissed with prejudice. The only remaining parties at trial were Nagengast and GSA (hereinafter collectively appellees).

         At trial, the issue before the jury was whether Nagengast was professionally negligent in "failing to place . . . Cody in the Trendelenburg position and the Durant's position upon being notified the laparoscopic procedure should be aborted."

         Raymond J. Lanzafame, M.D., is a general surgeon licensed to practice medicine in the State of New York. Lanzafame's videotaped deposition was presented at trial, and the video and the deposition transcript were entered as exhibits. He testified that it would have been appropriate for Nagengast to reposition Cody in the Trendelenburg position and the Durant's position. The Trendelenburg position is "head down, " relative to the patient's feet, and the Durant's position features the patient on her left side, or in the "left lateral decubitus" position. He testified that the purpose of repositioning the patient would be to release an "airlock [or] gas bubble" that could have accumulated in the heart, preventing the flow of blood into the pulmonary circuit. This would allow a bubble to rise to the top and allow gravity to move blood through the heart.

         Lanzafame testified that after attempting to reposition the patient, if the situation warranted, it would be proper to institute the advanced cardiac life support protocol. Lanzafame testified that Nagengast did not follow this standard of care and that this breach directly caused Cody's injuries, the result of which was death by permanent brain damage due to lack of oxygen.

         [24 Neb.App. 136] He testified that if Nagengast had known Cody's "end tidal" carbon dioxide level had dropped before the arrhythmia, it would have made a heart attack much less likely as the primary event. Lanzafame testified that information regarding a drop in end tidal carbon dioxide was not communicated by Murry to Nagengast and that this information would have aided Nagengast's diagnostic process.

         Nagengast testified that at the time Cody was transferred to the hospital in Lincoln, the doctors had ruled out pneumo-thorax, but had not ruled out myocardial infarction, arrhythmia, pulmonary embolism, or venous air embolism. It is difficult to rule out these conditions in an emergency setting because the proper equipment is not available in an operating room. Nagengast testified that after seeing additional evidence and studies, which were not available at the time Cody was treated, he was able to rule out some of those causes. He testified that there was "no doubt in [his] mind that she died of a venous air embolism, " which is a very rare, but recognized, complication related to the surgery he performed.

         Nagengast stated that positional changes, such as placing the patient in the Durant's position, are to be used, unless the patient has had a cardiovascular collapse. He testified that when a patient is in cardiopulmonary arrest, even from a venous air embolism, it is recognized that "you should proceed with CPR and not positioning changes." The advanced cardiac life support protocol is used to treat myocardial infarction, ischemic arrhythmia, pulmonary embolism, or venous air embolism. Nagengast testified that he met the standard of care of a reasonable surgeon under the circumstances and that if he were placed in the same situation again, he would follow the same procedure he used with Cody.

         Greg A. Fitzke, M.D., is a general surgeon practicing medicine in Lincoln. He became board certified in 2005, and he testified as an expert witness in this case. Fitzke opined that the most appropriate action under the circumstances was to initiate CPR, rather than positional changes, because Cody was [24 Neb.App. 137] in cardiac arrest. He testified that, ...

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