Jury Instructions. Whether a jury
instruction is correct is a question of law.
Judgments: Appeal and Error. When reviewing
questions of law, an appellate court has an obligation to
resolve the questions independently of the conclusion reached
by the trial court.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by such rules; judicial discretion is involved
only when the rules make discretion a factor in determining
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
Judges: Words and Phrases. Ajudicial abuse
of discretion exists if the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying just results in matters
submitted for disposition.
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.
Jury Instructions: Proof: Appeal and Error.
To establish reversible error from a court's failure to
give a requested jury instruction, an appellant has the
burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was
warranted by the evidence, and (3) the appellant was
prejudiced by the court's failure to give the requested
Negligence: Liability: Contractors and
Subcontractors. Generally, one who employs an
independent contractor is not vicariously liable for [298
Neb. 574] physical harm caused to another by the acts or
omissions of the contractor or its servants. An
employer's liability for the breach of a nondelegable
duty, however, is an exception to this general rule.
Negligence: Liability: Contractors and
Subcontractors: Words and Phrases. A nondelegable
duty means that an employer of an independent contractor, by
assigning work consequent to a duty, is not relieved from
liability arising from the delegated duties negligently
Negligence: Liability. As a result of a
nondelegable duty, the responsibility or ultimate liability
for proper performance of a duty cannot be delegated,
although actual performance of the task required by a
nondelegable duty may be done by another.
Negligence: Jury Instructions. A
nondelegable duty instruction is not appropriate when there
are no judicial admissions or evidence that a defendant had
assigned the performance of his duties to a subordinate party
at the time that the alleged breach occurred.
Jury Instructions: Damages: Proximate Cause:
Proof. A preexisting condition jury instruction does
not permit a jury to assess damages in any amount unless the
plaintiff first proves proximate cause.
Juries: Verdicts: Presumptions. When the
jury returns a general verdict for one party, an appellate
court presumes that the jury found for the successful party
on all issues raised by that party and presented to the jury.
Appeal and Error. The purpose of an
appellant's reply brief is to respond to the arguments
the appellee has advanced against the errors assigned in the
appellant's initial brief.
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.
Rules of Evidence: Expert Witnesses:
Hearsay. Under Neb. Evid. R. 703, Neb. Rev. Stat.
§ 27-703 (Reissue 2016), an expert may rely on hearsay
facts or data reasonably relied upon by experts in that
Expert Witnesses: Physicians and Surgeons:
Records. A medical expert may express opinion
testimony in medical matters based, in part, on reports of
others which are not in evidence but upon which the expert
customarily relies in the practice of his or her profession.
Expert Witnesses: Records: Hearsay:
Testimony. The mere fact that an expert relied on
hearsay does not transform it from inadmissible into
admissible evidence. However, inadmissible evidence, upon
which an expert relies, may be admitted on direct examination
if it was offered not to prove the truth of the matter
asserted but simply to demonstrate the basis for the
Neb. 575] Appeal from the District Court for Lancaster
County: Lori A. Maret, Judge. Affirmed.
H. Howard, of Dowd, Howard & Corrigan, LLC, for
A. Snowden and Elizabeth Ryan Cano, of Wolfe. Snowden, Hurd,
Luers & Ahl, L.L.P., for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
appeal arises from an order entered on a general jury verdict
for Greg Fitzke, M.D., and Surgical Associates P.C.
(collectively appellees) in a medical negligence claim.
Francisca Rodriguez claimed that Fitzke was negligent in
failing to timely diagnose and treat her, which resulted in
her suffering additional injuries.
claims that the court committed reversible error in denying
certain jury instructions and allowing witnesses to provide
expert opinions that were not disclosed before trial. Because
we do not find merit in Rodriguez' claims, we affirm.
Factual Background of Rodriguez' Hospitalization and
April 16, 2012, Rodriguez was referred to a hospital in
Lincoln, Nebraska, due to stomach pains, fever, and nausea.
is a general surgeon and a partner in Surgical Associates who
has surgical privileges at the hospital. Upon examining
Rodriguez, Fitzke determined that she needed an immediate
cholecystectomy, a surgical procedure to remove her
gallbladder. Rodriguez' gallbladder was gangrenous and
had attached to other organs around it.
her gallbladder was being removed, it ruptured and released
stones and purulent material, or pus, into Rodriguez'
abdominal cavity-an unavoidable risk of the surgery. Fitzke
[298 Neb. 576] cleaned the abdomen and inserted a drain in
Rodriguez' hepatic fossa to allow any accumulation of
tissue fluids from the procedure to drain out of the body and
be monitored. During or as a result of the surgery, however,
Rodriguez' intestine was also perforated, a fact not
known by Fitzke at the time.
that evening, Rodriguez appeared to be recovering well with
only minor pain from the surgery. On April 17, 2012,
Rodriguez began experiencing significant pain and her status
changed from outpatient to inpatient. Fitzke and Raymond
Taddeucci, M.D., another partner with Surgical Associates,
testified that her condition was consistent with the extent
of her acute cholecystitis and the known complications of the
vital signs were relatively stable on April 17, 2012. But,
around 11 p.m., Rodriguez' blood pressure became
hypotensive, nearly to the point of being classified as
shock, and her heart rate increased into tachycardia. At both
3 and 4 a.m., on April 18, Rodriguez' vitals again
exhibited significant hypotension, meeting the criteria for
shock, and tachycardia. Additionally, she had an elevated
respiratory rate, tachypnea; elevated white blood cell count;
and decreased oxygen saturation level and urinary output. She
was also reported to be confused.
surgeon on call for Surgical Associates ordered Rodriguez
transferred to the intensive care unit and engaged internal
medicine services for further treatment and evaluation. She
also received a broad-spectrum antibiotic, in addition to the
antibiotic that she was given shortly after surgery;
intravenous fluids; and oxygen.
physician's assistant stated in a 4 a.m. progress note
that Rodriguez had diffuse tenderness in her abdomen. He also
stated the following as potential causes for many of
Rodriguez' symptoms: dehydration, blood pressure
medications, and early mild sepsis-potentially resulting from
the gallbladder material that spilled into her abdomen during
surgery or a developing pneumonia. At about 7 a.m., an
internal [298 Neb. 577] medicine doctor ordered a CT scan
with unspecified contrast of Rodriguez' abdomen because
of her pain and hypotension. X rays performed that morning
showed that there was free air in Rodriguez' abdomen,
which was expected after the procedure, and new developing
lobe infiltrates in the left lower lung, which suggested the
development of pneumonia.
about 8 a.m., Fitzke examined Rodriguez and reviewed her
laboratory tests. He noted that her abdomen was soft, tender,
and distended but that there were no signs of peritonitis. He
decided not to perform exploratory surgery, and he canceled
the order for a CT scan. He testified that administering
intravenous fluids or oral contrast for the CT scan would
have been risky because of Rodriguez' decreasing kidney
function and developing pneumonia and that the CT scan was
unlikely to produce useful information, based on both his
physical examination of her and the proximity to surgery.
Instead, he decided to continue treating Rodriguez with
additional intravenous fluids and antibiotics. He stated that
he discussed canceling the CT scan with the internist on duty
later that morning.
the day, test results indicated that Rodriguez' condition
was declining into severe sepsis. She continued to experience
hypotension, tachycardia, confusion, both an elevated
respiratory rate and white blood cell count, and both
decreased oxygen saturation levels and urinary output.
Rodriguez was also diagnosed with renal failure and exhibited
results indicating that she might be suffering organ failure
in her heart, brain, and liver.
2 and 3 a.m., on April 19, 2012, the nurses called an
internal medicine doctor because Rodriguez was in shock. The
doctor placed a central venous catheter into a large vein
going down toward Rodriguez' heart. In addition, he gave
Rodriguez two vasopressor drugs designed to elevate the blood
pressure to a safe level.
doctor also ordered a "HIDA" scan, which tests
whether the liver and biliary system are functioning
normally, because bile-tinged fluids were beginning to exit
from the drain in [298 Neb. 578] Rodriguez' hepatic
fossa. The results of the HIDA scan showed that fluid was
passing from the liver to the intestine, ruling out
cholangitis. However, it was otherwise equivocal regarding a
leak from the biliary system, which would be treated by a
nonsurgical procedure, and an intestinal leak, which is a
surgical emergency requiring intervention.
Rodriguez was returned to the intensive care unit at about
12:20 p.m., she again went into shock. Rodriguez was placed
on heavy sedation, to allow an endotracheal tube to be
inserted directly into the lungs, and placed on a ventilator
to help oxygenate her tissues. She was administered 80
percent oxygen, which meant she was going rapidly into overt
respiratory failure and clear septic shock. Beginning on the
evening of April 18 and throughout April 19, 2012, the nurses
also reported several times that Rodriguez' abdomen was
the deterioration in her condition, Rodriguez experienced
slight improvement in some of her test results. Many of her
issues from the previous day, however, persisted. At 12:20
p.m., Robin Allen, M.D., an internist, stated at the
conclusion of her progress report: "? Need to go back to
about 1:15 p.m., Fitzke examined Rodriguez. He stated in his
progress report that her abdomen was not rigid or distended.
He also indicated that she might have delayed sepsis from the
gross purulence released during her surgery but that there
were no signs of ascending cholangitis. Further, he wrote
that a CT would still be "of low yield" for
identifying a bile leak. He concluded that he would follow
Rodriguez' progress and that the sepsis protocol should
continue to be followed.
testified that his primary consideration at that time was
that Rodriguez had sepsis, resulting from the ruptured
gallbladder, and that his secondary concern was a bile duct
leak. He did not consider an intestinal perforation to be
existent because she was not exhibiting peritonitis or succus
entericus in her drain; while Rodriguez was not necessarily
getting better, factors indicated a positive response to
therapy [298 Neb. 579] and a potential for improvement. He
discussed the factors present with Allen, another treating
physician, and believed that she agreed he did not need to
return Rodriguez to the operating room.
p.m. on April 19, 2012, Fitzke transferred care of Rodriguez
to Taddeucci, because Fitzke had to be out of town for a
medical meeting the following day. Taddeucci testified that
he and Fitzke discussed Rodriguez' condition; Fitzke was
not sure what was causing Rodriguez' issues, but they
discussed ascending cholangitis, pneumonia, and a bile leak
as potential causes.
evening, John Duch, M.D., a nephrologist, noted that
Rodriguez' abdomen was soft but distended with
diminishing bowel sounds. He also wrote: "Septic shock.
She is on broad-spectrum antibiotics and empiric vasoactive
medications, and surgery is following." Additionally,
Rodriguez began presenting a fever for the first time since
her operation, and her urine output decreased again.
morning of April 20, 2012, the other improvements from April
19 had also reversed. Taddeucci examined Rodriguez at about
12:30 p.m. and stated that she was now experiencing
peritonitis. Further, the pulmonologist and critical care
doctor informed Taddeucci that they had done everything they
could but that her condition was not improving. Taddeucci
determined that a second surgery would be necessary to
address her condition, which he performed at around 2:30 p.m.
surgery started as an exploratory laparoscopic procedure,
intended to discover possible explanations for Rodriguez'
decline. During this surgery, however, Taddeucci discovered
the perforation in Rodriguez' small intestine. At that
point, the nature of the surgery changed to an anastomosis
procedure, which is an operation to remove a section of the
intestine. Taddeucci also extracted about two quarts of
bilious fluid, which had leaked from the intestine into
Rodriguez' abdominal cavity. Rodriguez tolerated the
procedure well, and there were no complications.
Neb. 580] Ultimately, Rodriguez had eight additional
operations during the subsequent VA months and
remained hospitalized until July, with numerous
complications. She had her final operation in February 2013,
which was a skin graft to heal a large open wound on her
abdomen that had persisted since her release. Rodriguez
ultimately recovered with no permanent organ injuries.
trial, Rodriguez called one surgical expert and one critical
care physician. Each testified regarding his opinion of the
care Fitzke provided to Rodriguez.
surgical expert testified that Fitzke breached the standard
of care in three instances: (1) by failing to follow the
three-step protocol for treating septic shock, (2) by failing
to create and follow a reasonable surgical differential
diagnosis, and (3) by canceling the CT scan that had been
ordered for Rodriguez on April 18, 2012. The critical care
physician also testified that Fitzke's canceling the CT
scan and failing to timely treat the source of Rodriguez'
infections were a breach of the standard of care. As a result
of these breaches, each testified that Rodriguez'
corrective surgery was delayed by 2 days, occurring on April
20 instead of April 18. The critical care physician also
provided testimony concerning the injuries that resulted from
called two expert surgical witnesses. They testified that
canceling the CT scan was reasonable based on the
circumstances. Additionally, they stated that Fitzke had
complied with all reasonable standards of care during the
postop-eration period and that Fitzke made the correct
decision by not sending Rodriguez to surgery before April 20,
2012, given the information available at that time.
filed her complaint in August 2013, and the matter proceeded
to a jury trial in April 2016. The following allegations of
negligence against Fitzke were submitted to the [298 Neb.
581] jury: (1) failing to adequately assess Rodriguez
following the April 16, 2012, surgery; (2) canceling an April
18 CT scan; (3) failing to order a CT scan; (4) failing to
perform surgery on April 18; and (5) failing to perform
surgery on April 19.
deliberations, the jury submitted a question to the court
regarding Duch's note on April 19, 2012. The question and
answer by the court are as follows:
Can we have clarification on Dr. Duch['s] note, Exhibit
56, p: 17:
Assessment & Plan:
#4: Septic Shock - "surgery is following" Does this
mean that a surgical operation is expected to occur, or that
the surgical team will be following up?
You must base your verdict only on the evidence presented to
you during the trial and the instructions of law
I have given you.
jury returned a general verdict for appellees. Rodriguez
filed a motion for new trial, which was overruled. Rodriguez
then perfected a timely appeal. We moved the case to our
docket pursuant to our authority to regulate ...