Carl Bank and Teresa M. Bank, appellants.
Jason J. Mickels, M.D., and Omaha Orthopedic Clinic & Sports Medicine, PC, appellees.
Expert Witnesses: Appeal and Error. The
standard for reviewing the admissibility of expert testimony
is abuse of discretion.
Jury Instructions: Appeal and Error. Whether
a jury instruction is correct is a question of law, which an
appellate court independently decides.
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
Motions for Mistrial: Appeal and Error.
Decisions regarding motions for mistrial are directed to the
discretion of the trial court and will be upheld in the
absence of an abuse of discretion.
Motions for New Trial: Appeal and Error. An
appellate court reviews a denial of a motion for new trial
or, in the alternative, to alter or amend the judgment, for
an abuse of discretion.
Judges: Words and Phrases. A judicial abuse
of discretion exists when 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.
Trial: Evidence: Witnesses: Impeachment. A
ruling on evidence of a collateral matter intended to affect
the credibility of a witness is within the discretion of a
Statutes: Appeal and Error. Generally,
statutory language is to be given its plain and ordinary
meaning, and an appellate court will not [302 Neb. 1010]
resort to interpretation to ascertain the meaning of
statutory words which are plain, direct, and unambiguous.
Health Care Providers: Informed Consent.
Neb. Rev. Stat. § 44-2816 (Reissue 2010) does not
require that informed consent be written.
from the District Court for Douglas County: Thomas A. Otepka,
M. Bruno and Jared C. Olson, of Sherrets, Bruno & Vogt,
L.L.C., for appellants.
William M. Lamson, Jr., and William R. Settles, of Lamson,
Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
NATURE OF CASE
Bank and Teresa M. Bank sued Dr. Jason J. Mickels and Omaha
Orthopedic Clinic & Sports Medicine, RC. (collectively
Mickels), in the district court for Douglas County for
medical malpractice and loss of consortium. Their complaint
alleged that Dr. Mickels breached the standard of care
because he failed to obtain informed consent before
performing an injection and manipulation procedure on
Carl's shoulder and failed to diagnose and treat an
infection that ultimately caused permanent injury and serious
daily pain. During the jury trial, the court made various
rulings regarding the admission of evidence, including
witness testimony, and jury instructions, with which the
Banks take issue. A jury returned a general verdict in favor
of Mickels. The court overruled various posttrial motions by
which the Banks had requested a new trial. The Banks appeal.
We analyze the Banks' assignments of error below and
determine that they are without merit. We specifically
conclude that Neb. Rev. Stat. § 44-2816 (Reissue 2010)
does not require informed consent to be written and that the
court's jury instruction to [302 Neb. 1011] that effect
was a correct statement of the law and warranted by the
evidence. We affirm.
STATEMENT OF FACTS
statement of facts is taken from the evidence presented at
trial. Carl's physician referred him to Dr. Mickels, an
orthopedic surgeon, for a rotator cuff tear in August 2012.
Dr. Mickels performed surgery to repair the rotator cuff in
September 2012. Following the surgery, Carl kept his arm in a
sling and completed physical therapy and recommended
exercises. At the first postoperative visit, on October 2,
Carl was recovering as expected. Carl testified that soon
after, in early October, he was slammed forward into the
passenger restraints in his automobile when his wife braked
to avoid colliding with another vehicle. Carl testified that
his pain had continued, but not worsened, after the braking
incident. He returned to Dr. Mickels to make sure that the
near-collision had not affected his shoulder. Carl testified
that Dr. Mickels performed x rays and stated that
"everything was fine, all the pins were in place and not
to worry about it."
to Carl's testimony, not everything was fine. Carl
continued to experience pain when he followed up with Dr.
Mickels on November 20, 2012. Dr. Mickels injected a local
anesthetic into the shoulder joint to allow him to test the
range of motion in Carl's affected shoulder. The purpose
of the procedure was to assess the range of motion without
pain to determine if Carl's limited range of motion was
due to inadequate pain controls. Dr. Mickels testified that
he and Carl discussed the risk of increased pain after an
injection and range of motion procedure and that they
discussed the risk of infection from any injection. Dr.
Mickels noted that Carl had tattoos and was not a
"stranger to needles," and according to Dr.
Mickels, Carl stated he had never had an infection from
receiving any of his tattoos. Carl testified that Dr. Mickels
did not explain the risks of the manipulation and injection.
Carl did not sign an informed consent form for the [302 Neb.
1012] procedure and testified that he would not have agreed
to go forward with the injection and procedure if the risks
had been explained to him. During the range of motion
procedure, as Dr. Mickels raised the arm, Carl heard cracking
and popping noises in his shoulder. He recalled that Dr.
Mickels told him those sounds were "a good sign" of
scar tissue breaking down. During the procedure, Dr. Mickels
observed that Carl "had a pretty stiff shoulder,"
so he prescribed additional physical therapy.
testified that his shoulder was more painful after the
November 2012 procedure. He reported that his range of motion
was continuing to decline and that his pain was severe. At
trial, Carl attributed the pain to the November injection and
procedure. Dr. Mickels testified that his medical records
attributed Carl's worsening pain to the automobile
incident in October.
December 2012, Dr. Mickels ordered x rays and an MRI. Dr.
Mickels described the MRI results and testified that the
findings pointed to a stress fracture or, less likely,
avas-cular necrosis. He recommended that Carl take a break
from therapy and perform exercises at home to rest over the
next couple of weeks. At this point, Carl was back to work
returned on December 20, 2012, at which time Dr. Mickels
noted some muscular atrophy in Carl's shoulder. Dr.
Mickels asked a partner physician to observe Carl to see if
he had "any other ideas." Dr. Mickels ordered
electrodiagnostic studies to evaluate nerve function, and
Carl's results were normal. At the next visit, on January
9, 2013, Dr. Mickels recommended that Carl return to therapy
and continued his work restrictions.
point, Carl had not improved, and he sought a second opinion
from Dr. Charles Rosipal, an orthopedic surgeon, on January
14, 2013. Dr. Rosipal ordered a CT scan and suspected an
infection. He requested a radiologist to perform a CT-guided
needle aspiration to obtain material to culture and [302 Neb.
1013] check for bacteria. However, the culture was negative
and Dr. Rosipal noted, "There does not appear to be any
active infection in the shoulder."
Rosipal scheduled shoulder replacement surgery for April 1,
2013, but when he opened Carl's shoulder, he found that a
serious infection had eroded essentially all of the cartilage
in the joint. Dr. Rosipal installed a temporary joint and
prescribed strong antibiotics. A permanent replacement joint
was installed in May 2013.
has severe ongoing shoulder pain and stiffness that requires
frequent physical therapy treatments and reduces his quality
of life. He avoids public places because of the risk of
someone's bumping into him.
Banks brought this action in the district court for Douglas
County, claiming medical malpractice and loss of consortium
against Mickels. Their complaint alleged that Dr. Mickels
breached the standard of care required of medical providers
in Omaha, Nebraska, because he failed to obtain informed
consent before performing an injection and manipulation
procedure on Carl's shoulder and because he failed to
diagnose and treat an infection. The Banks ...