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Ewers v. Saunders County

Supreme Court of Nebraska

February 9, 2018

T. Louise Ewers, personally and as Personal Representative of the Estate of Mickley (Michael) Lynn Ellis, appellant,
v.
Saunders County, Nebraska, a political subdivision, et al., appellees.

         1. Pretrial Procedure: Appeal and Error. Decisions regarding discovery are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.

         2. Pretrial Procedure: Proof: Appeal and Error. The party asserting error in a discovery ruling bears the burden of showing that the ruling was an abuse of discretion.

         3. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

         4. Pretrial Procedure: Evidence. A party's failure to make a timely and appropriate response to a request for admission constitutes an admission of the subject matter of the request, which matter is conclusively established unless, on motion, the court permits withdrawal of the admission.

         5. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc. § 6-336 is self-enforcing, without the necessity of judicial action to effect an admission which results from a party's failure to answer or object to a request for admission.

         6. Rules of the Supreme Court: Pretrial Procedure: Evidence: Proof. Neb. Ct. R. Disc. § 6-336 is not self-executing. Thus, a party that seeks to claim another party's admission, as a result of that party's failure to respond properly to a request for admission, must prove service of the request for admission and the served party's failure to answer [298 Neb. 945] or object to the request and must also offer the request for admission as evidence.

         7. Rules of the Supreme Court: Pretrial Procedure. If the necessary foundational requirements are met and no motion is sustained to withdraw an admission, a trial court is obligated to give effect to the provisions of Neb. Ct. R. Disc. § 6-336 which require that the matter be deemed admitted.

         8. 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 a proximate cause of the plaintiff's alleged injuries.

         9. Malpractice: Physicians and Surgeons: Proximate Cause: Damages. In the medical malpractice context, the element of proximate causation requires proof that the physician's deviation from the standard of care caused or contributed to the injury or damage to the plaintiff.

         10. Negligence: Proximate Cause. A defendant's negligence is not actionable unless it is a proximate cause of the plaintiff's injuries or is a cause that proximately contributed to them.

         11. Negligence: Proximate Cause: Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred.

         12. Proximate Cause: Words and Phrases. A defendant's conduct is a proximate cause of an event if the event would not have occurred but for that conduct, but it is not a proximate cause if the event would have occurred without that conduct.

         13. Expert Witnesses: Proximate Cause. Expert testimony is almost always required to prove proximate causation.

         Appeal from the District Court for Saunders County: James C. Stecker, Judge. Affirmed.

          Larry R. Demerath, of Demerath Law Office, and Justin B. Demerath, of O'Hanlon, McCollom & Demerath Law Firm, for appellant.

          Joseph S. Daly and Mary M. Schott, of Sodoro, Daly. Shomaker & Selde, PC, L.L.O., and J. Scott Paul, of McGrath, North, Mullin & Kratz, PC, L.L.O., for appellees Advanced Correctional Health Care, Inc., et al.

         [298 Neb. 946] Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Kelch, J.

         INTRODUCTION

         This appeal arises from the in-custody death of Mickley (Michael) Lynn Ellis. T. Louise Ewers, personally and as personal representative of Ellis' estate, brought a wrongful death action alleging medical malpractice by Advanced Correctional Healthcare, Inc. (ACH), and its agents in their individual and official capacities (collectively Appellees). Ewers also filed suit against Saunders County, the Saunders County sheriff's office, Saunders County Corrections, Saunders Medical Center, and Dan Scott, but those causes of action are not relevant to this appeal. Ewers now appeals from the orders of the district court for Saunders County that denied her discovery motions and granted Appellees' motion for summary judgment. We conclude that the district court did not err, and we affirm.

         BACKGROUND

         Ellis was incarcerated in the Saunders County jail on May 27, 2010. During the morning of June 22, he spoke with Mallory Reeves, a licensed practical nurse employed by ACH, the medical contractor hired by Saunders County. In her notes, Reeves stated that Ellis wanted to talk to a counselor about nightmares he was having and that she told him to fill out a "sick call, " which is how an inmate reports medical issues.

         Instead of filling out a "sick call, " Ellis filled out a "kite" form, which is how an inmate relays reports or requests to jail personnel. In the form, he requested help with his nightmares. He mentioned that he was having chest pain and "hard" breathing when he awoke from the nightmares and that he was waiting to find the right medication to help him. Ellis had a history of chest pain and shortness of breath after nightmares and, about 3 weeks prior, had been taken to a hospital for mental health issues.

         [298 Neb. 947] After receiving the "kite" form, jail personnel completed an incident narrative. According to the incident narrative, jail personnel informed Reeves of the physical complaints Ellis described on the "kite" form, and she responded that it was not a medical issue, as Ellis was requesting to speak with someone, and that there was not anything she could do for him. At her deposition, Reeves did not recall that conversation but admitted that chest pain was a serious complaint that could ...


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