Rickey Anderson and Lynnette Anderson. APPELLEES,
GREGORY J. BaBBE. M.D., ET AL., APPELLANTS.
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.
Jury Instructions. The giving or refusing to
give a cautionary instruction that the jury is not to allow
sympathy or prejudice to control or affect its finding is
within the discretion of the trial court.
Motions for New Trial: Appeal and Error. An
appellate court reviews a denial of a motion for new trial
for an abuse of discretion.
Directed Verdict: Appeal and Error. In
reviewing a trial court's ruling on a motion for directed
verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can
reasonably be deduced from the evidence.
Jurors: Damages. A "Golden Rule"
argument tells the jurors to place themselves in the
plaintiff's shoes and award the amount they would
"charge" to undergo equivalent disability, pain,
Jurors: Appeal and Error. Although an
invitation to jurors to put themselves in the place of a
party is improper argument, it is not a ground for a reversal
unless the jurors were prejudicially affected by the remark.
Juror Qualifications. Parties may not use
voir dire to impanel a jury with a predetermined disposition
or to indoctrinate jurors to react favorably to a party's
position when presented with particular evidence.
Directed Verdict: Waiver: Appeal and Error.
When a defendant's motion for directed verdict made at
the close of plaintiff's case is [304 Neb. 187] overruled
and the defendant introduces evidence in support of
allegations contained in its answer, the defendant waives any
right to insist that the court erred in overruling the
motion. 9. Directed Verdict: Appeal and
Error. A directed verdict is proper at the close of
all the evidence only when reasonable minds cannot differ and
can draw but one conclusion from the evidence, that is, when
an issue should be decided as a matter of law.
Physicians and Surgeons: Expert Witnesses:
Proof. To establish the customary standard of care
in a particular case, expert testimony by a qualified medical
professional is normally required.
Directed Verdict: Evidence. A defendant, by
introducing evidence after his or her motion for a directed
verdict is denied, takes the chance that his or her evidence
will aid the plaintiff's case.
Evidence. A plaintiff has a right to have
the submission of his or her case determined from all of the
evidence regardless of who introduces it.
from the District Court for Douglas County: Duane C.
Dougherty, Judge. Affirmed.
M. Schott and Joseph S. Daly, of Sodoro, Daly & Shomaker,
PC, L.L.O., for appellants.
Patrick J. Cullan and Joseph P. Cullan, of Cullan &
Cullan, L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
patient sued his doctors and obtained a favorable jury
verdict. The doctors contend that (1) an improper
"Golden Rule" discussion occurred during voir dire
and (2) the patient failed to establish a breach of the
standard of care. Because the voir dire discussion did not
rise to a Golden Rule exhortation, the court did not abuse
its discretion in denying requests for a mistrial, curative
instruction, and new trial. The court did not err in denying
the doctors' motions for directed verdict: The doctors
waived any error in the denial at the close of the [304 Neb.
188] patient's case by presenting evidence, and evidence
subsequently adduced established a breach of the standard of
care. We affirm.
L. Backer, M.D., and Gregory J. Babbe, M.D., practiced
medicine in Omaha, Nebraska. They were employees of UNMC
November 2012, Backer and Babbe provided medical care and
treatment to Rickey Anderson. On November 1, Backer saw
Anderson for a red, swollen, right lower extremity. On
November 6, Anderson was admitted to the Nebraska Medical
Center. While hospitalized, he was under the care and
treatment of Babbe. Anderson was discharged on November 10,
and Backer thereafter continued to provide medical care
regarding his right lower extremity. Neither Backer nor Babbe
performed an x ray of Anderson's right lower extremity.
Neither doctor reevaluated the diagnosis of cellulitis.
January 2013, Anderson consulted with a podiatrist and was
told that he had "Charcot foot." He was informed
that if x rays had been taken in November 2012, the deformity
would have been revealed and significant deterioration of his
foot could have been prevented.
and his wife sued Backer, Babbe, and UNMC Physicians
(collectively the doctors) for medical malpractice and loss
of consortium. The doctors affirmatively alleged that they
acted with the degree of care, skill, and knowledge
ordinarily possessed by like physicians, under like
circumstances, in Omaha.
matter proceeded to a jury trial. As we set forth in more
detail in our analysis, the Andersons' counsel wished to
talk with the venire about physical health and several
prospective jurors discussed the importance of mobility. The
doctors moved for a mistrial, but the court overruled the
motion. It [304 Neb. 189] also declined to give an
admonishment or curative instruction at that time.
Evidence at Trial
Andersons called two expert witnesses to testify during their
case in chief. One was a podiatrist who treated Anderson and
practiced in the Omaha area. Other than a 2-month rotation in
residency, the podiatrist had never practiced family
medicine. But the podiatrist was an adjunct clinical
instructor who worked with residents from the University of
Nebraska Medical Center during an elective rotation, and
based on that, he was familiar with the material that family
practice physicians training at the University of Nebraska
Medical Center were to know with respect to foot care. The
other expert was a family physician who was chairman of a
community hospital in Baltimore, Maryland.
podiatrist saw Anderson following a referral by Backer to the
podiatrist's partner. The referral was for cellulitis and
the removal of a toenail. The podiatrist opined that had the
Charcot foot been diagnosed and treated appropriately on or
prior to November 28, 2012, Anderson would not have suffered
damage to his foot. The podiatrist explained how Charcot
occurs in a patient with neuropathy: an event causes bones to
release an osteoclast, the osteoclast releases a chemical
that causes inflammation and redness, and "as the event
occurs, you have two months to get it set up, immobilize it,
[and] protect the foot." According to the podiatrist, if
the foot is immobilized and the inflammation is allowed to
resolve, the foot generally will not have a deformity. Having
reviewed Anderson's records, the podiatrist testified
that Anderson should have been immobilized and placed into a
protective boot on November 1.
podiatrist testified that based on an algorithm compiled by
an international task force on Charcot foot, obtaining an x
ray is the first thing that should be done if there is a
clinical suspicion of a Charcot event. No x ray was taken
until January 22, 2013. When asked if he had an opinion as to
whether [304 Neb. 190] the care Anderson received was
malpractice, the podiatrist answered: "My opinion is it
was a missed diagnosed Charcot and it was a mistake. So,
unfortunately, that means it's malpractice, that we made
a mistake and now there's damages that occurred because
of our mistakes."
family physician conducted a forensic review of the case. He
explained that Anderson had a neuropathy, which put him at
increased risk for developing a Charcot joint. Although
Anderson presented himself with what may have "looked
like a cellulitis," it did not "behave like a
cellulitis." The family physician testified that
"in a patient with neuropathy, who had these kinds of
symptoms, I believe that [the doctors] needed to think about
the possibility of a Charcot joint." He testified that
it was unreasonable to not perform any x ray or MRI on
Anderson on November 1, 2012, or thereafter. The following
colloquy occurred between the Andersons' counsel and the
Q. And do you have an opinion whether or not each and every
one of the opinions you've proffered with respect to the
violations of the standard of care independently was a - was
a proximate cause of . . . Anderson's injuries?
Q. So the failure to consider Charcot on each and every day
was a cause of . . . Anderson's condition?
A. I believe so, yes.
Q. Well, alternatively, had they considered Charcot at any
time in November, do you have an opinion whether or not
we'd be here today, that he would have suffered the
fractures, dislocations and subluxations that he did?
A. From what I know about Charcot, if it's treated at
Stage 0, it has an excellent prognosis.
the Andersons rested, the doctors moved for a directed
verdict. They asserted that neither of the Andersons'
expert witnesses mentioned the words '"standard of
care.'" The doctors noted that the family physician
was never asked if he was familiar with the standard of care
expected of family practice [304 Neb. 191] physicians in
Omaha, that the podiatrist was not asked if he knew what the
standard of care was, and that neither expert testified that
a breach of the standard of care occurred.
court similarly did not recall hearing "the usual
question point-blank." But the court remarked that the
"substance of the testimony is really more important
than the choice of words." The court overruled the
motion for a directed verdict.
the doctors' case in chief, the Andersons' counsel
cross-examined Backer about the standard of care. Backer
agreed that if a patient with neuropathy has symptoms wholly
consistent with Charcot foot and if nothing is inconsistent
with that condition, then the standard of care requires a
physician to suspect Charcot foot. Backer recalled
Babbe's testimony that Anderson's condition was
wholly consistent with Charcot foot, that nothing was
inconsistent with Charcot foot on November 6, 2012, and that
Babbe did not consider Charcot foot. The Andersons'
counsel then asked Backer, "Do you agree, based on that
evidence, that . . . Babbe violated the standard of
care?" The doctors' counsel objected, explaining
that Backer had not been identified as an expert witness to
testify as to anybody but herself. The Andersons' counsel
directed the court to the doctors' third supplemental
answers to ...