Bank v. Mickels , 302 Neb. 1009 ( 2019 )

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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BANK v. MICKELS
Cite as 302 Neb. 1009
Carl Bank and Teresa M. Bank, appellants,
v. Jason J. M ickels, M.D., and Omaha
Orthopedic Clinic & Sports
Medicine, P.C., appellees.
___ N.W.2d ___
Filed April 25, 2019. No. S-18-427.
1. Expert Witnesses: Appeal and Error. The standard for reviewing the
admissibility of expert testimony is abuse of discretion.
2. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, which an appellate court independently
decides.
3. 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.
4. 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.
5. 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.
6. 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 mat-
ters submitted for disposition.
7. 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 trial court.
8. Statutes: Appeal and Error. Generally, statutory language is to be
given its plain and ordinary meaning, and an appellate court will not
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resort to interpretation to ascertain the meaning of statutory words
which are plain, direct, and unambiguous.
9. Health Care Providers: Informed Consent. Neb. Rev. Stat. § 44-2816
(Reissue 2010) does not require that informed consent be written.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
Jason 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.
Miller-Lerman, J.
I. NATURE OF CASE
Carl Bank and Teresa M. Bank sued Dr. Jason J. Mickels
and Omaha Orthopedic Clinic & Sports Medicine, P.C. (col-
lectively Mickels), in the district court for Douglas County
for medical malpractice and loss of consortium. Their com-
plaint alleged that Dr. Mickels breached the standard of care
because he failed to obtain informed consent before per-
forming 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 regard-
ing 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
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that effect was a correct statement of the law and warranted
by the evidence. We affirm.
II. STATEMENT OF FACTS
Our statement of facts is taken from the evidence pre-
sented 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 exer-
cises. 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.”
According 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
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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 pop-
ping noises in his shoulder. He recalled that Dr. Mickels told
him those sounds were “a good sign” of scar tissue break-
ing down. During the procedure, Dr. Mickels observed that
Carl “had a pretty stiff shoulder,” so he prescribed additional
physical therapy.
Carl 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.
In 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 with
restrictions.
Carl 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.
At this point, Carl had not improved, and he sought a sec-
ond opinion from Dr. Charles Rosipal, an orthopedic surgeon,
on January 14, 2013. Dr. Rosipal ordered a CT scan and sus-
pected an infection. He requested a radiologist to perform a
CT-guided needle aspiration to obtain material to culture and
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check for bacteria. However, the culture was negative and Dr.
Rosipal noted, “There does not appear to be any active infec-
tion in the shoulder.”
Dr. 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 carti-
lage in the joint. Dr. Rosipal installed a temporary joint and
prescribed strong antibiotics. A permanent replacement joint
was installed in May 2013.
Carl 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.
The 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 manipu-
lation procedure on Carl’s shoulder and because he failed to
diagnose and treat an infection. The Banks alleged that Dr.
Mickels’ negligence caused the infection to destroy Carl’s joint
before another doctor could treat it.
Trial was held on December 11 through 14, 2017. Both par-
ties called expert witnesses. The Banks called two experts, Drs.
Sonny Bal and Roger Massie, the latter of whom appeared by
deposition. Dr. Bal is an orthopedic surgeon from Columbia,
Missouri. He testified that Dr. Mickels fell below the stan-
dard of care by failing to obtain informed consent for the
November 20, 2012, procedure, stating, “There’s some ques-
tion as to whether or not the patient was informed. And if the
patient was not told or given the information that a reasonable
health care provider would give, that’s below the standard of
care.” According to Dr. Bal, the standard of care required the
patient be given information that there was a risk of a fracture
and a risk of infection.
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Dr. Bal also testified that Dr. Mickels fell below the stan-
dard of care because “despite many, many pieces of evidence
pointing to an infection, [Carl] never got a workup or evalu-
ation for infection.” Dr. Bal testified that Dr. Mickels per-
formed the rotator cuff repair properly, but that Carl’s lack of
improvement after surgery was a “red flag.”
On cross-examination, Mickels’ counsel questioned Dr. Bal
about the compensation he received for his work as an expert
witness in this case. Mickels’ counsel offered several bills
into evidence that documented Dr. Bal’s expert witness fees.
These were received without objection. On redirect, the Banks’
counsel asked Dr. Bal what he does with the money he earns
from expert witness work. Mickels objected on the basis of
relevancy. In an offer of proof, the Banks’ counsel represented
that Dr. Bal donated this money to charity. The district court
sustained Mickels’ objection to this question.
The Banks also called Dr. Massie, a family physician from
Malcolm, Nebraska, whose opinions were generally similar
to Dr. Bal’s. Dr. Massie explicitly opined that the standard of
care required that Dr. Mickels obtain written informed con-
sent from Carl for the November 20, 2012, procedure. Dr.
Massie explained that written consent is “a generic form that
is signed by the patient that you have in detail explained to the
patient the risk, benefits, complications that could accrue to
such procedure.”
Mickels called Dr. John Wright as an expert witness on
the standard of care. Dr. Wright is an orthopedic surgeon
who practices general orthopedics in Kearney, Nebraska. Dr.
Wright testified to his schooling, training, experience, and pub-
lications. Dr. Wright became board certified by the American
Board of Orthopaedic Surgery in 2001 and recertified in 2010.
His practice predominantly involves joint replacement surgery
and sports medicine and includes rotator cuff repairs.
Dr. Wright testified that Dr. Mickels’ care and treatment of
Carl met the standard of care and that Dr. Mickels obtained
appropriate informed consent for the November 20, 2012,
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procedure. He testified that the injection into Carl’s shoulder
“was done according to acceptable techniques and community
standards.” He opined that the procedure did not cause Carl’s
infection or fracture. Later in the trial, the Banks unsuccess-
fully sought to strike Dr. Wright’s testimony.
Although the Banks had not objected to the following ques-
tion during the receipt of evidence, after both parties had
rested, the Banks moved for a mistrial, arguing that Dr. Wright
had mentioned insurance deductibles during his testimony,
which violated an order in limine prohibiting the mention of
insurance. The relevant testimony was as follows:
Q [by Mickels’ counsel:] Okay. Do you have any —
any operation scheduled where you’re going to be replac-
ing either a shoulder or operating on a shoulder or doing
a rotator cuff repair?
A [by Dr. Wright:] Several. My surgery schedule is
booked full through February right now.
Q Okay. This is usually a busy time of year because of
the deductibles and everybody kind of wants to get that
elective surgery in, am I right?
A Right.
Q Okay.
A For better, for worse, I don’t have a slow time of
year anymore.
The district court overruled the Banks’ motion for mistrial.
Next, the Banks moved to strike all of Dr. Wright’s testi-
mony because they claimed he had not established that he was
familiar with the standard of care in Omaha or similar commu-
nities. The district court also overruled this motion.
Dr. Mickels also testified as to his treatment and care of
Carl. He testified that a rotator cuff repair “is one of the more
painful surgeries . . . in orthopedics” and that it takes up to 6
weeks for the shoulder to “heal enough to withstand the indi-
vidual’s own motion and active motion of that arm.”
At trial, the Banks requested a jury instruction based on
NJI2d Civ. 4.09 regarding the activation or aggravation of a
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preexisting condition. The district court refused the proposed
instruction. Regarding the jury instructions actually delivered,
the court modified NJI2d Civ. 12.03 and advised the jury that
“[a] written consent is not required in order for a physician to
meet the standard of care.”
After the jury returned a general verdict in favor of
Mickels, the Banks filed a motion to alter or amend the judg-
ment and a motion for a new trial, which were denied. The
Banks appealed.
III. ASSIGNMENTS OF ERROR
The Banks make various claims on appeal which are sum-
marized and restated as follows: With regard to the expert
witnesses at trial, the Banks claim that the district court erred
when it declined to strike Dr. Wright’s testimony for lack of
familiarity with community standards and should have per-
mitted Dr. Bal’s additional testimony regarding his donative
intent for his expert witness fee. They assert that the district
court erred when it instructed the jury that written consent
is not required for informed consent and when it refused to
instruct the jury on the aggravation of a preexisting condition.
They further claim that the district court erred when it over-
ruled the Banks’ various motions concerning the reference to
insurance and the collateral source rule, their motion for mis-
trial, their motion to alter or amend the judgment, and their
motion for new trial.
IV. STANDARDS OF REVIEW
[1] The standard for reviewing the admissibility of expert
testimony is abuse of discretion. Hemsley v. Langdon, 299 Neb.
464, 909 N.W.2d 59 (2018).
[2] Whether a jury instruction is correct is a question of
law, which an appellate court independently decides. First Nat.
Bank North Platte v. Cardenas, 299 Neb. 497, 909 N.W.2d
79 (2018).
[3] To establish reversible error from a court’s failure to
give a requested jury instruction, an appellant has the burden
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to show that (1) the tendered instruction is a correct state-
ment 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. Armstrong v.
Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).
[4] 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. Hike v. State, 288 Neb. 60,
846 N.W.2d 205 (2014).
[5,6] 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. Hemsley v. Langdon, supra. A judi-
cial 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 sub-
mitted for disposition. Id.
V. ANALYSIS
1. Objections to Expert Witness Testimony
(a) Objection to Dr. Wright’s Testimony
The Banks request a new trial because the district court
declined to strike Dr. Wright’s testimony about the standard of
care. They argue that Dr. Wright lacked foundation to opine on
the standard of care in Omaha because he practices in Kearney
and did not specifically testify he was familiar with the stan-
dard of care in Omaha. We reject this assignment of error.
The applicable standard of care for cases arising under
the Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat.
§ 44-2801 et seq. (Reissue 2010), includes a locality focus.
Hemsley v. Langdon, supra. To establish the customary stan-
dard of care in a particular case, expert testimony by a
qualified medical professional is normally required. Id. This
testimony is premised on the expert’s personal knowledge of,
and familiarity with, the customary practice among medical
professionals in the same or similar locality under like circum-
stances. Id.
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In this case, Mickels designated Dr. Wright to testify regard-
ing the standard of care. Dr. Wright testified that “[w]hen
[Carl’s] shoulder was injected with local anesthetic, it was
done according to acceptable techniques and community
standards.”
Given that Dr. Wright was trained at the national level and,
at the time of trial, served on the faculty of the University
of Nebraska, there was evidence from which we can assume
the jury reasonably found that the locality standard had been
satisfied when it returned a general verdict for Mickels.
See, also, Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d
74 (2004) (comparing Bellevue, Nebraska, and Lincoln,
Nebraska); Walls v. Shreck, 265 Neb. 683, 658 N.W.2d 686
(2003) (comparing North Platte, Nebraska, and Scottsbluff,
Nebraska).
(b) Relevance Objection Regarding
Dr. Bal’s Expert Witness Fees
The Banks next contend that the district court abused its
discretion when it sustained Mickels’ objection to testimony
meant to rehabilitate Dr. Bal. At trial, Mickels attempted to
impeach Dr. Bal’s credibility by portraying him as a profiteer-
ing “traveling witness,” and the Banks wished to show that
Dr. Bal donates expert witness fees to charity and that he is
worthy of belief.
[7] Given the context of the ruling, we determine that the
Banks have failed to demonstrate that they were prejudiced
by the court’s ruling which excluded additional testimony by
Dr. Bal. A ruling on evidence of a collateral matter intended
to affect the credibility of a witness is within the discretion of
a trial court. Capps v. Manhart, 236 Neb. 16, 458 N.W.2d 742
(1990). The district court did not abuse its discretion.
2. Jury Instructions
With regard to jury instructions, the Banks claim that the
district court erred when it modified a pattern instruction
on informed consent and refused to give an instruction on
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activation or aggravation of a preexisting condition. Neither
claim has merit.
(a) Form of Informed Consent
Under § 44-2816
The Banks contend that oral consent alone is not sufficient
to satisfy informed consent under § 44-2816 and that the
district court erred when, in a modification of pattern jury
instruction NJI2d Civ. 12.03, it instructed the jury over objec-
tion that “[a] written consent is not required in order for a
physician to meet the standard of care.” The Banks contend
that the modification was contrary to law. We do not agree.
In Nebraska, actions against qualified healthcare providers
for failure to obtain informed consent are governed by the
Nebraska Hospital-Medical Liability Act. § 44-2801 et seq.
Section 44-2816 provides:
Informed consent shall mean consent to a procedure
based on information which would ordinarily be pro-
vided to the patient under like circumstances by health
care providers engaged in a similar practice in the local-
ity or in similar localities. Failure to obtain informed
consent shall include failure to obtain any express or
implied consent for any operation, treatment, or pro-
cedure in a case in which a reasonably prudent health
care provider in the community or similar communities
would have obtained an express or implied consent for
such operation, treatment, or procedure under similar
circumstances.
We have said informed consent concerns a doctor’s duty to
inform his or her patient of the risks involved in treatment
or surgery. Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562
(2006) (citing W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 32 (5th ed. 1984)). It is settled that § 44-2816
requires doctors to
“provide their patients with sufficient information to
permit the patient himself to make an informed and
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intelligent decision on whether to submit to a proposed
course of treatment or surgical procedure. Such a dis-
closure should include the nature of the pertinent ail-
ment or condition, the risks of the proposed treatment
or procedure, and the risks of any alternative methods of
treatment, including the risks of failing to undergo any
treatment at all. . . .”
Eccleston v. Chait, 241 Neb. 961, 967, 492 N.W.2d 860,
864 (1992).
Quoting Fay A. Rozovsky, Consent to Treatment: A Practical
Guide § 1.0 (2d ed. 1990), the Supreme Court of Kentucky
explained, “‘Consent is a process, not a document. Authorization
for treatment is the culmination of a discussion . . . . The docu-
mentation, the so-called consent form, is not the consent, for
that lies instead in the conclusion of the discussion between
the patient and the physician . . . .’” Kovacs v. Freeman, 957
S.W.2d 251, 254 (1997). We agree with this description of con-
sent and conclude it is consistent with informed consent under
§ 44-2816.
[8,9] We have not explicitly decided whether informed
consent reflecting the receipt of information described in
§ 44-2816 must be in writing. Generally, statutory language is
to be given its plain and ordinary meaning, and an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.
Wisner v. Vandelay Investments, 300 Neb. 825, 916 N.W.2d
698 (2018). The statutory language of § 44-2816 is not
ambiguous, requiring a patient to receive “information which
would ordinarily be provided to the patient under like circum-
stances by health care providers engaged in a similar practice
in the locality or in similar localities.” The plain meaning of
the language addresses the extent of information to be given.
Section 44-2816 does not prescribe the form for providing the
information and, to the contrary, states that informed consent
may be “express or implied,” suggesting that the require-
ment of the statute can be met in more than one form. The
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Legislature did not require that informed consent be written.
Although some states mention written informed consent in
their general informed consent statutes, Nebraska does not.
See Christine Coughlin, E-Consent: Can Informed Consent Be
Just a Click Away?, 50 Wake Forest L. Rev. 381 (2015). We
will not insert a writing requirement where the Legislature has
not restricted the form of informed consent, and we therefore
hold that § 44-2816 does not require that informed consent
be written.
Our reading of § 44-2816 is consistent with other jurisdic-
tions that have considered the issue under similar informed
consent statutes. See, e.g., Cooper v. U.S., 903 F. Supp. 953
(D. S.C. 1995); Holley v. Huang, 284 P.3d 81 (Colo. App.
2011); Rowe v. Kim, 824 A.2d 19 (Del. Super. 2003), affirmed
832 A.2d 1252 (Del. 2003); Kovacs v. Freeman, supra; Yahn v.
Folse, 639 So. 2d 261 (La. App. 1993); Patterson v. Van Wiel,
91 N.M. 100, 570 P.2d 931 (N.M. App. 1977).
The court’s jury instruction was a correct statement of the
law and was warranted by the evidence. Although the court’s
instruction was triggered by the evidence in the case, we do
not rule that this modified instruction must be given in every
case. To the extent the Banks suggest they were disadvantaged
by the instruction, we reject the argument. The jury heard the
testimony of the Banks’ witness, Dr. Massie, who urged that
informed consent be written, and by its verdict, the jury did not
accept that testimony.
(b) Activation or Aggravation of
Preexisting Condition Proposed
Jury Instruction
At trial, the Banks requested and the district court rejected
a jury instruction regarding the activation or aggravation of a
preexisting condition, based on NJI2d Civ. 4.09. The district
court rejected the proposed instruction. On appeal, the Banks
claim the district court erred when it rejected their proposed
instruction. We find no merit in this assignment of error.
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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. Rodriguez v. Surgical
Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018). However, if
the instructions given, which are taken as a whole, correctly
state the law, are not misleading, and adequately cover the
issues submissible to a jury, there is no prejudicial error con-
cerning the instructions and necessitating a reversal. Id.
When the jury returns a general verdict for one party, an
appellate court applies the general verdict rule and presumes
that the jury found for the successful party on all issues raised
by that party and presented to the jury. See id. In similar
cases, we presumed that the jury found for appellees on all
issues presented to it, and we have interpreted the verdict as
finding that the plaintiff failed to prove that the defendant
was the proximate cause of the plaintiff’s injuries. See id. A
preexisting condition instruction concerns the apportionment
of damages. See David v. DeLeon, 250 Neb. 109, 547 N.W.2d
726 (1996). Here, the jury did not reach a special verdict, and
thus, its verdict was a general verdict. See Neb. Rev. Stat.
§ 25-1122 (Reissue 2016). When it reached a general verdict,
the jury presumably decided that Dr. Mickels’ conduct was
not the proximate cause of Banks’ injuries, and the jury never
reached the issue of damages or preexisting conditions. The
Banks were not prejudiced when the district court rejected
their proposed preexisting condition instruction, and they can-
not show reversible error.
3. Collateral Source Rule Violation:
R eference to Insurance
Finally, the Banks claim that the district court erred when
it denied the Banks’ motion for mistrial and motion to alter or
amend and for a new trial based on a question asked by counsel
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for Mickels of Dr. Wright on direct examination. The Banks
contend that the question and answer violated both the col-
lateral source rule and the district court’s order in limine that
prohibited the reference to insurance. See, also, Countryside
Co-op v. Harry A. Koch Co., 280 Neb. 795, 790 N.W.2d 873
(2010). Under the circumstances presented by this case, the
brief, casual, and isolated mention of “deductibles” does not
warrant a new trial.
The testimony in question was as follows:
Q [by Mickels’ counsel:] Okay. This is usually a busy
time of the year because of the deductibles and every-
body kind of wants to get that elective surgery in, am
I right?
A [by Dr. Wright:] Right.
Q Okay.
A For better, for worse, I don’t have a slow time of
year anymore.
Our precedent in Genthon v. Kratville, 270 Neb. 74, 701
N.W.2d 334 (2005) (superseded by statute on other grounds
as noted in Kelly v. Saint Francis Med. Ctr., 295 Neb. 650,
889 N.W.2d 613 (2017)), is relevant here. Not every casual or
inadvertent reference to an insurance company in the course
of trial will necessitate a mistrial. Genthon v. Kratville, supra.
We have stated that “[w]hether the disclosure is such as to
constitute error depends essentially upon the facts and circum-
stances peculiar to the case under consideration.” Id. at 87, 701
N.W.2d at 347.
The Banks did not object to Mickels’ counsel’s question
or move to strike the answer during the receipt of evidence,
but they did move for a mistrial after the parties had rested.
Ignoring the issue of whether the “deductibles” reference was
inadvertent, the exchange was not emphasized. The reference
did not telegraph to the jury information on whether Carl had
received the benefits of health insurance which might have
reduced his damages in this case. The effect of the question
and answer was mitigated by jury instructions that explained
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
BANK v. MICKELS
Cite as 302 Neb. 1009
the collateral source rule. Under the circumstances of this
case, it was not prejudicial to the Banks and does not warrant
a new trial.
VI. CONCLUSION
For the reasons explained above, we find no merit to
the Banks’ assignments of errors and specifically hold that
§ 44-2816 does not require that informed consent be written.
A ffirmed.