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Anderson v. Babbe

Supreme Court of Nebraska

October 4, 2019

Rickey Anderson and Lynnette Anderson. APPELLEES,
v.
GREGORY J. BaBBE. M.D., ET AL., APPELLANTS.

         1. 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.

         2. 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.

         3. Motions for New Trial: Appeal and Error. An appellate court reviews a denial of a motion for new trial for an abuse of discretion.

         4. 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.

         5. 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, and suffering.

         6. 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.

         7. 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.

         8. 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.

         10. 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.

         11. 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.

         12. 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.

          Appeal from the District Court for Douglas County: Duane C. Dougherty, Judge. Affirmed.

          Mary 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.

          Cassel, J.

         I. INTRODUCTION

         A 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.

         II. BACKGROUND

         1. Pleadings

         Elisabeth L. Backer, M.D., and Gregory J. Babbe, M.D., practiced medicine in Omaha, Nebraska. They were employees of UNMC Physicians.

         In 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.

         In 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.

         Anderson 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.

         2. Voir Dire

         The 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.

         3. Evidence at Trial

         The 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.

         The 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.

         The 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."

         The 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 family physician:

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?
A. Yes.
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.

         After 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.

         The 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.

         During 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 ...


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