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Rodriguez v. Surgical Associates P.C.

Supreme Court of Nebraska

January 5, 2018

Francisca Rodriguez, an individual, appellant,
v.
Surgical Associates P.C. and Greg Fitzke, M.D., An Individual, Appellees.

         1. Jury Instructions. Whether a jury instruction is correct is a question of law.

         2. 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.

         3. 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 admissibility.

         4. 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.

         5. 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.

         6. 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.

         7. 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 instruction.

         8. 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.

         9. 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 performed.

         10. 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.

         11. 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.

         12. 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.

         13. 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.

         14. 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.

         15. 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.

         16. 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 field.

         17. 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.

         18. 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 expert's testimony.

         [298 Neb. 575] Appeal from the District Court for Lancaster County: Lori A. Maret, Judge. Affirmed.

          Steven H. Howard, of Dowd, Howard & Corrigan, LLC, for appellant.

          James 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.

          FUNKE, J.

         This 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.

         Rodriguez 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.

         I. BACKGROUND

         1. Factual Background of Rodriguez' Hospitalization and Treatment

         On April 16, 2012, Rodriguez was referred to a hospital in Lincoln, Nebraska, due to stomach pains, fever, and nausea.

         Fitzke 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.

         While 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.

         Later 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 surgery.

         Rodriguez' 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.

         The 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.

         A 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.

         At 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.

         Throughout 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.

         Between 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.

         The 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.

         When 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 distended.

         Despite 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 OR."

         At 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.

         Fitzke 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.

         At 5 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.

         That 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.

         By the 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.

         The 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.

         [298 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.

         2. Expert Opinions

         At trial, Rodriguez called one surgical expert and one critical care physician. Each testified regarding his opinion of the care Fitzke provided to Rodriguez.

         The 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 the delay.

         Appellees 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.

         3. Procedural History

         Rodriguez 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.

         During 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?
Response:
You must base your verdict only on the evidence presented to you during the trial and the instructions of law
I have given you.

         The 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 ...


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