Ray v. Beatrice Community Hosp. & Health Ctr. ( 2022 )

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
RAY V. BEATRICE COMMUNITY HOSP. & HEALTH CTR.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
DOUGLAS ALAN RAY, APPELLANT,
V.
BEATRICE COMMUNITY HOSPITAL AND HEALTH CENTER, INC., APPELLEE.
Filed February 8, 2022. No. A-21-240.
Appeal from the District Court for Gage County: RICKY A. SCHREINER, Judge. Affirmed.
Lyle J. Koenig, of Koenig Law Firm, and James R. Welsh, of Welsh & Welsh, P.C., L.L.O.,
for appellant.
Mark A. Christensen and Travis W. Tettenborn, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellee.
PIRTLE, Chief Judge, and RIEDMANN and WELCH, Judges.
WELCH, Judge.
INTRODUCTION
Douglas Alan Ray appeals the Gage County District Court’s order granting summary
judgment in his professional negligence action against Beatrice Community Hospital and Health
Center, Inc. (Hospital). Specifically, Ray alleges that the district court erred in denying his request
to introduce the remaining portion of an expert witness deposition into evidence or, alternatively,
finding that the common knowledge exception did not apply in the court’s determination that no
genuine issue of material fact existed. For the reasons herein, we affirm.
-1-
STATEMENT OF FACTS
COMPLAINT
In May 2019, Ray filed a complaint against the Hospital alleging professional negligence
and premises liability. Ray contended, and the Hospital did not dispute, that in November 2017,
he was admitted to the Hospital and underwent a total right knee replacement which was performed
by Dr. Derek Weichel, a surgeon employed by the Hospital. Following the surgery, Dr. Weichel
ordered Ray to complete physical therapy to ensure Ray would be able to navigate stairs as a
requirement for discharge. On the morning of his anticipated discharge and prior to his physical
therapy session, Hospital nurses assisted Ray out of his bed and into the bathroom. While Ray was
using the bathroom, the nurses waited outside the bathroom door. When Ray tried to stand up, he
slid and fell into a sitting position. After Ray’s fall, Dr. Weichel completed a post-fall assessment
and determined that Ray did not sustain any injury as a result of the fall and that Ray could be
discharged that day provided that Ray successfully completed the afternoon physical therapy
session.
During the afternoon physical therapy session, Kasey Murphy, a physical therapy nurse,
directed Ray to perform stair training via a platform step. Ray was to use the platform step in order
to demonstrate that he was successfully able to ascend and descend stairs while using a front wheel
walker. Murphy utilized a hands-on assist with a gait belt to help guide Ray while he was ascending
and descending from the platform step. As Ray attempted to ascend the platform leading with his
good leg at Murphy’s request, Ray’s right leg, which had been operated on, gave out causing Ray
to fall and land in a sitting position. Murphy was unable to catch Ray as he fell or hold him up
with the gait belt due to Ray’s weight which was around 340 pounds. The fall dehisced Ray’s
surgical wound requiring Ray to undergo a second surgery. During the second surgery, Dr.
Weichel performed irrigation and closure of the surgical site. While completing that procedure,
Dr. Weichel discovered, and repaired, a tear of the distal quadriceps muscle in Ray’s right leg.
In connection with his fall from the platform, Ray alleged that the Hospital breached its
duty “to possess and use the care, skill, and knowledge ordinarily possessed and used under like
circumstances by other health care providers, physicians, and members of their respective
professions engaged in similar practice . . . ,” alleged certain particular acts of negligence, and
alleged “that as a direct and proximate result of [the Hospital’s] negligence and malpractice, [Ray]
sustained substantial and permanent injuries and related damages.” Ray also alleged that the
placement and use of the platform step constituted a hazard to him and that the Hospital was
negligent under a premises liability theory of recovery.
THE HOSPITAL’S MOTION FOR SUMMARY JUDGMENT/
RAY’S MOTION FOR EXTENSION
On January 28, 2021, the Hospital filed a motion for summary judgment and scheduled the
hearing for February 8. The motion was filed in advance of the court-ordered dispositive motion
deadline of February 12 and scheduled jury trial of March 22. Prior to the summary judgment
hearing, Ray’s counsel requested an extension until March 8 to respond to the Hospital’s motion
for summary judgment via a motion for extension of time to file a brief opposing the Hospital’s
motion for summary judgment and evidence in support thereof. The court held a hearing on Ray’s
-2-
motion for extension of time on February 4. During that hearing, Ray’s counsel asserted that
co-counsel contracted Covid-19 in January, that this caused his office to get behind, and that he
desired more time to respond to the Hospital’s motion. In response, the Hospital’s counsel argued
that Ray’s counsel had not complied with the statute requiring that he submit an affidavit showing
good cause for a continuance and that Ray’s counsel was seeking additional time to find new
evidence because Ray’s expert witness could not establish causation in her deposition. Ray’s
counsel stated that the intention was not to seek new evidence, but, rather, obtain additional time
to review and refute the Hospital’s allegations in connection with their motion for summary
judgment. The court denied Ray’s motion to continue, stating:
Well, we can have the hearing [on summary judgment] on February 8th, as scheduled, and
I will give you an opportunity to brief that. The summary judgment process is laid out in
the court rules. Again, this case has been on file for 465 days. You should have a fantastic
grip on the facts of this. You should be able to make that argument why they are not entitled
to judgment as a matter of law by now. So we are going to go ahead with the hearing on
February 8th. I will address a briefing schedule on that motion at that time.
The hearing on the motion for summary judgment was held as scheduled on February 8,
2021, via WebEx. In support of its motion, the Hospital introduced into evidence an affidavit and
curriculum vitae of Dr. Weichel; counsel’s affidavit which attached portions of depositions from
Ray and Ray’s designated expert, Sheryl Deaconson; and the previously filed statement of
undisputed material facts. Counsel for the Hospital also requested that the court take judicial notice
of the complaint and answer.
Dr. Weichel’s affidavit specifically stated that there was no breach in the standard of care
by the Hospital’s nurses and that no act or omission on the part of the Hospital’s nursing staff was
the proximate cause of any injury or damage sustained by Ray. Paragraph 3 of Dr. Weichel’s
opinion stated, in pertinent part:
g. I performed irrigation and closure of . . . Ray’s surgical wound . . . . Ray’s surgical
wound dehisced when he fell during physical therapy. During the surgery, I discovered a
tear of the distal quadriceps muscle in . . . Ray’s right leg, which I repaired.
h. It is my opinion that the injury to . . . Ray’s quadriceps muscle was sustained as
a result of the fall that occurred during physical therapy in the afternoon of November 22.
....
10. It is my opinion there is no relationship between . . . Ray’s “fall” during the
morning of November 22 and the fall during the physical therapy during the afternoon of
November 22. The physical therapy was being conducted pursuant to and in accordance
with my wishes and orders after examining . . . Ray following the morning “fall,” and there
is nothing the nursing staff could have done to prevent the fall during physical therapy.
In the excerpts submitted from Deaconson’s deposition, Deaconson testified that nurses
associated with Ray’s care negligently failed to take vital signs or conduct neurological checks
prior to Ray’s fall, failed to notify Ray’s family in accordance with “fall policy,” and failed to
reassess Ray and document the incident in accordance with that same policy. But in relation to all
-3-
three opinions, Deaconson failed to ascribe how the alleged acts of negligence caused or
contributed to Ray’s fall and subsequent injury.
In response to the Hospital’s offer, Ray’s counsel stated, in part:
We haven’t received the total deposition of . . . Deaconson, and in her deposition,
which we will consent, in their opinion, the negligence was that they did not put . . . Ray
on high-risk precautions after the first fall, and in her opinion, had they put him on high-risk
precautions after the first fall, that would have prevented the second fall, and that’s where
we’re coming from, and I think -- I haven’t found out yet -- but you have given me some
time to respond, and one of the exhibits we will probably offer to you would be . . . some
other pages of . . . Deaconson’s deposition and maybe some pages of . . . Ray’s deposition.
In response, the Hospital’s counsel objected to Ray’s suggestion of offering future evidence
arguing that Ray failed to provide exhibits or a statement of undisputed facts in advance of the
summary judgment hearing, and that having not complied with appropriate procedures for the
admission of such proposed evidence, Ray was precluded from offering the proposed exhibits on
the day of the hearing or thereafter. Hospital’s counsel further argued that the Hospital was entitled
to summary judgment on the basis of their expert’s unrefuted affidavit stating no act of negligence
caused damage to Ray.
The district court ultimately refused Ray’s offer to admit the entirety of Deaconson’s
deposition as captured in the following colloquy:
THE COURT: Well, I understand that. But the motion for summary judgment was
on file January 28th. You could have got your Statement of Undisputed Facts on file in that
week here, ten days, couldn’t [you]?
[Ray’s Counsel:] I don’t think so, Your Honor. Like I said before, we have had
some problems with COVID-19 and we are way behind on everything, and I understood
you telling us that we would have to have a hearing because of the 465 days since it was
filed and you wanted to have a hearing today, but it was my understanding that we were
going to be able to submit a brief, and I think with the excerpts from the deposition, . . .
Deaconson, that they opened the door to have the full deposition, and I think that is the
main thrust of whatever response or resistance we have to this. But I misunderstood you. I
apologize.
THE COURT: We had the hearing last Thursday.
[Ray’s Counsel:] We have the brief and full deposition.
THE COURT: You wanted to offer evidence today?
[Ray’s Counsel:] I would offer the complete deposition of . . . Deaconson. I can
send that to you immediately.
THE COURT: Well, we have got the hearing today. I thought you were going to be
coming down today and you could have, maybe, brought that with you today, but you have
chosen not to appear. We set this up by WebEx at your request.
[Ray’s Counsel:] Yes, you did, because of the -- I had talked to someone in your
territory down there, and they were going to do things by video because the roads are bad
and the -- our roads are bad up here -- and I just felt under the circumstances that we could
-4-
have it by WebEx because of me having COVID-19 and so forth and not having the shot
yet. That it wasn’t a good idea for me or Lyle Koenig to show up because he has
COVID-19.
THE COURT: Did you have that . . . last Friday? I guess . . . it’s obvious to me you
did not want to have this hearing today and you wanted more time to be able to present
more evidence.
[Ray’s Counsel:] That was my motion, Your Honor.
THE COURT: And I overruled that last Thursday; right? And I asked to have briefs.
We addressed the briefing schedule. I think there was probably time for you to get your
evidence in the mail, have it marked as an exhibit. I drove down. [Hospital’s counsel] drove
down. You called us . . . a little after 8:00 o’clock this morning, wanting to set this WebEx
hearing. I will accept your brief in two weeks, and we will just go from there.
PRETRIAL HEARING
On February 22, 2021, prior to the entry of order on the motion for summary judgment, the
parties appeared for a pretrial hearing. At the hearing, Ray’s counsel again attempted to offer
Deaconson’s deposition to be considered in opposition to the Hospital’s motion for summary
judgment. The district court again rejected the offer as untimely.
COURT ORDER
In early March 2021, the district court granted summary judgment in favor of the Hospital.
In doing so, the court stated that the exhibits proffered by the Hospital were received into evidence
and that Ray did not offer evidence in opposition to the motion, nor was he granted leave to submit
evidence after the hearing concluded. The court found that the Hospital provided Dr. Weichel’s
affidavit alleging that there was no breach in the standard of care and that Ray’s injuries were not
proximately caused by the hospital nursing staff. The court also found that excerpts from
Deaconson’s deposition, which had been offered by the Hospital and received into evidence,
affirmatively demonstrated that she did not intend to offer opinions on the issue of causation. The
court determined that Dr. Weichel’s affidavit was sufficient to make a prima facie case that any
act or omission by the Hospital was not the proximate cause of Ray’s injuries and that the burden
shifted to Ray to show that there was a genuine factual dispute on the issue of causation. The court
indicated that Ray introduced no evidence to rebut the Hospital’s showing on the issue of causation
and that the excerpts from Deaconson’s deposition failed to rebut the Hospital’s prima facie case.
Further, the court found that since there was no genuine factual dispute as to the liability
of any of the Hospital’s employees, there was also no dispute regarding the Hospital’s liability.
The court also rejected Ray’s argument that the issue of causation fell within the common
knowledge exception not requiring expert testimony on the basis that technical or specialized
knowledge was required for a jury to make the causal connection between the negligence of the
nursing staff and Ray’s fall during the physical therapy exercise. Applying the above-stated
principle, the district court found the Hospital was entitled to summary judgment and dismissed
Ray’s claim.
-5-
MOTION TO ALTER OR AMEND
Following the entry of the court’s order, Ray filed a motion to alter or amend and
supporting affidavit by Ray’s counsel which set forth that both he and co-counsel had contracted
COVID-19 causing them to be out of the office for 3 weeks; that the court had granted him leave
to submit evidence; and that this evidence, in combination with the Hospital’s evidence, presented
a factual question precluding summary judgment. Ray also alleged that his counsel was permitted
to attend the summary judgment hearing via WebEx and that counsel attempted to comply with
the summary judgment statute by offering to provide the evidence immediately by email, but the
district court erroneously refused to accept the evidence via email in violation of the rule of
completeness and in violation of the Uniform District Court Rules permitting courts to grant
additional time to file evidence pursuant to a motion for summary judgment. Ray’s counsel
requested that the court review two exhibits which clearly articulated a factual question:
Deaconson’s entire deposition and a second affidavit by counsel with attachments related to
Deaconson’s deposition. The district court denied Ray’s motion to alter or amend. Ray has now
timely appealed to this court.
ASSIGNMENTS OF ERROR
Ray contends that the district court erred in granting summary judgment in favor of the
Hospital because it improperly refused to allow him to submit his statement of disputed facts,
index of evidence, and/or Deaconson’s complete deposition that could have created an issue of
fact, and in finding the common knowledge exception did not apply which, if applied, would have
defeated summary judgment on this record.
STANDARD OF REVIEW
An appellate court affirms a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from the facts and that the moving party is entitled to judgment as a
matter of law. In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021). 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. Id.ANALYSIS
Ray first contends that the district court’s refusal to receive his proposed statement of
undisputed facts, index of evidence, and complete deposition of Deaconson at the summary
judgment hearing was an abuse of discretion and resulted in an erroneous summary judgment
finding.
We first note that, at the summary judgment hearing, Ray failed to offer a statement of
undisputed facts or index of evidence so, as to that aspect of the assigned error, absent plain error,
an issue not raised to the district court will not be considered by an appellate court on appeal.
“Absent plain error, an issue not raised to the district court will not be considered by an appellate
court on appeal.” State v. Kays, 289 Neb. 260, 268, 854 N.W.2d 783, 790 (2014), overruled on
-6-
other grounds, State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021). And it most certainly is
not plain error for the district court to not accept documents not offered. That said, the district court
refused to admit Deaconson’s full deposition due to Ray having failed to comply with rules
governing conditions precedent to offering exhibits prior to the summary judgment hearing. The
question becomes whether the district court abused its discretion in refusing to accept Deaconson’s
full deposition under these circumstances. We hold that it did not.
In 2017, the Legislature amended the summary judgment statutes and Neb. Rev. Stat.
§ 25-1332 (Cum. Supp. 2020) now reads as follows:
(1) The motion shall be served at least ten days before the time fixed for the hearing.
The adverse party prior to the day of hearing may serve opposing affidavits. The judgment
sought shall be rendered forthwith if the pleadings and the evidence admitted at the hearing
show that there is no genuine dispute as to any material fact and that the moving party is
entitled to a judgment as a matter of law. The evidence that may be received on a motion
for summary judgment includes depositions, answers to interrogatories, admissions,
stipulations, and affidavits. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine dispute as to the amount
of damages.
(2) A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by:
(a) Citing to particular parts of materials in the record, including depositions,
answers to interrogatories, admissions, stipulations, affidavits, or other materials; or
(b) Showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
the fact.
(3) If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by subsection (2) of this section, the court may:
(a) Give an opportunity to properly support or address the fact;
(b) Consider the fact undisputed for purposes of the motion;
(c) Grant summary judgment if the motion and supporting materials, including the
facts considered undisputed, show that the movant is entitled to summary judgment; or
(d) Issue any other appropriate order.
In response to this legislative amendment, which now “require[s] a party to provide
citations to the record to support its assertion that a fact cannot be or is genuinely disputed,” Ecker
v. E & A Consulting Group, 302 Neb. 578, 583, 924 N.W.2d 671, 676 (2019), the Nebraska
Supreme Court adopted Neb. Ct. R. § 6-1526 (rev. 2018). That rule provides specific procedures
to carry out the purpose of the amendment to § 25-1332 and provides:
(A) Moving Party’s Materials in Support of Motion. When a motion for summary
judgment or partial summary judgment is filed, the moving party must simultaneously file
with the clerk and serve on all parties of record:
(1) an Evidence Index in Support listing all evidence to be offered in support of the
motion for summary judgment; and
-7-
(2) an Annotated Statement of Undisputed Facts setting forth concise, numbered
paragraphs reciting each proposed material fact as to which the moving party contends
there is no genuine dispute, annotated by pinpoint citation to the supporting evidence in
the Evidence Index in Support.
Failure to submit such a Statement may constitute grounds for denial of the motion.
(B) Opposing Party’s Materials in Opposition. Each party opposing a motion for
summary judgment or partial summary judgment must file with the clerk and serve on all
parties of record:
(1) an Evidence Index in Opposition listing all evidence to be offered in opposition
to the motion for summary judgment; and
(2) an Annotated Statement of Disputed Facts setting forth concise, numbered
paragraphs reciting each proposed material fact of the moving party as to which the
opposing party contends there is a genuine dispute, annotated by pinpoint citation to the
supporting evidence in the Evidence Index in Opposition.
Failure to submit such a Statement may constitute grounds for sustaining the
motion.
(C) For purposes of this rule, where competing motions are filed, a party shall be
considered as the moving party regarding a motion or motions asserted by that party and
as an opposing party regarding a motion or motions asserted by another party.
(D) The assigned judge is expected to schedule deadlines for compliance with this
rule and the summary judgment statutes so as to ensure a fair opportunity for all parties to
present their evidence. The judge may, in the judge’s discretion, extend any deadline for
compliance with any requirement under this rule.
As the Nebraska Supreme Court explained in Bohling v. Bohling, 304 Neb. 968, 977-78,
937 N.W.2d 855, 862 (2020):
In order to accomplish the legislative goal of judicial economy, § 6-1526 was
crafted for three reasons. First, it benefits parties by making the parties’ respective claims
as to undisputed or disputed facts clear and precise. Second, it serves both trial and
appellate courts by exposing the precise claims of the parties. The parties’ briefs are not an
effective substitute for an evidence index and an annotated statement of undisputed or
disputed facts. A judge should not have to scour through a party’s brief to identify factual
claims that are intermixed with legal arguments. Third, it was adopted to focus the parties
and the court on the specific factual contentions.
Trial courts should have some discretion to adapt procedures to the needs of a
particular case, and an appellate court will not intervene except where the discretion is
abused. But trial courts should not condone a party’s failure to follow § 6-1526 merely
because the party finds it inconvenient or unfamiliar. There is a systemic value to the
prompt and inexpensive resolution of disputes. Section 6-1526 should not be lightly
ignored. We encourage district courts to set deadlines in compliance with the rule and
require parties to submit necessary materials.
-8-
Here, the Hospital filed its motion for summary judgment on January 28, 2021, and set the
hearing on the motion on February 8 in accordance with § 25-1332. In connection with § 6-1526,
the Hospital submitted its index of evidence in support of its motion and its annotated statement
of undisputed facts. On February 4, Ray attempted to continue the summary judgment hearing but
the request was denied, in large measure, because of the length of time the matter had been on file
and because a jury trial on the matter was set to begin the following month. Ray does not assign
error to that ruling. Instead, he assigns that the district court erred in failing to admit Deaconson’s
full deposition despite Ray’s failure to comply with § 6-1526(B)(1) and (2) in that he failed to file
with the clerk and serve on all the parties an evidence index in opposition to the Hospital’s motion
which listed the evidence to be offered in opposition to the Hospital’s motion and an annotated
statement of disputed facts reciting each proposed material fact which he contended was genuinely
disputed. Under these circumstances, the district court may give an opportunity to properly address
the fact, consider the fact undisputed for purposes of the motion, grant summary judgment if the
supporting materials show that the movant is so entitled, or issue any other appropriate order. See
§ 25-1332(3)(a) through (d).
Here, the district court found that the issue of causation propounded by the Hospital’s
expert was not contradicted by Ray’s failure to submit any evidence on the subject due to his
failure to comply with the court rule. More specifically, the district court sustained the Hospital’s
objection to Ray’s attempt to propound evidence at the summary judgment hearing that was
provided by Ray for the first time on the day of the hearing which resulted in the Hospital’s expert
testimony being uncontroverted. In Woodhouse Ford v. Laflan, 268 Neb. 722, 687 N.W.2d 672(2004), the Nebraska Supreme court specifically held it was not error for a trial court to enforce
§ 25-1332(1) by sustaining objections to evidence which was provided by the opposing party for
the first time on the day of the summary judgment hearing. Applying the principles set forth in
Bohling and Woodhouse Ford, we hold the district court did not abuse its discretion in refusing to
admit Deaconson’s entire deposition which was first presented by Ray on the day of the summary
judgment hearing.
Ray next argues that, notwithstanding any failure to comply with § 25-1332 and § 6-1526,
he was entitled to submit the remainder of Deaconson’s deposition at the summary judgment
hearing under the rule of completeness set forth in Neb. Rev. Stat. § 27-106 (Reissue 2016). That
statute provides:
(1) When part of an act, declaration, conversation or writing is given in evidence
by one party, the whole on the same subject may be inquired into by the other. When a
letter is read, all other letters on the same subject between the same parties may be given.
When a detached act, declaration, conversation or writing is given in evidence, any other
act, declaration or writing which is necessary to make it fully understood, or to explain the
same, may also be given in evidence.
(2) The judge may in his discretion either require the party thus introducing part of
a total communication to introduce at that time such other parts as ought in fairness to be
considered contemporaneously with it, or may permit another party to do so at that time.
-9-
Ray specifically argues that “[u]nder the ‘rule of completeness,’ [he] was entitled to
introduce the rest of [Deaconson’s] deposition in order to clarify the evidence” which was
propounded by the Hospital through portions of Deaconson’s deposition. Brief for appellant at 17.
But during the summary judgment hearing, Ray failed to assert the “rule of completeness” as a
basis upon which he should be entitled to admit Deaconson’s entire deposition despite Ray’s
failure to comply with § 25-1332 and § 6-1526. Instead, during the hearing, Ray argued that the
Hospital’s offer of portions of Deaconson’s deposition “opened the door to have the full deposition
[admitted].” But the doctrine of “opening the door” to admission of evidence is different than the
rule of completeness. As the Nebraska Supreme court explained in State v. Carpenter, 293 Neb.
860, 869, 880 N.W.2d 630, 638 (2016):
We have described “opening the door” as a rule of expanded relevancy which
authorizes admitting evidence which otherwise would have been irrelevant in order to
respond to (1) admissible evidence which generates an issue or (2) inadmissible evidence
admitted by the court over objection. Huber v. Rohrig[, 280 Neb. 868, 791 N.W.2d 590(2010)]; Sturzenegger v. Father Flanagan’s Boys’ Home[, 276 Neb. 327, 754 N.W.2d 406(2008)]. Thus, we have used “opening the door” to describe both specific contradiction,
i.e., responding to “admissible evidence which generates an issue,” and curative
admissibility, i.e., responding to “inadmissible evidence admitted by the court over
objection.” Although we have not referred to the “specific contradiction doctrine” in our
discussion of “opening the door,” our cases illustrate our acceptance of the concept and we
apply it in this case.
Because Ray advances the doctrine of the rule of completeness on appeal, not the doctrine of
opening the door which he advanced to the trial court, as we noted before, absent plain error, an
issue not raised to the district court will not be considered by an appellate court on appeal. See
State v. Kays, 289 Neb. 260, 854 N.W.2d 783 (2014), overruled on other grounds, State v. Malone,
308 Neb. 929, 957 N.W.2d 892 (2021). Finding no plain error associated with the district court’s
refusal to admit Deaconson’s deposition under the rule of completeness, Ray’s argument fails.
Ray finally argues that the district court erred in granting summary judgment in not
applying the “common knowledge rule.” Ray cites to Thone v. Regional West Med. Ctr., 275 Neb.
238, 250-51, 745 N.W.2d 898, 908 (2008), in stating that “causation may be inferred without
expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries
is sufficiently obvious to laypersons.” To that end, he argues:
The evidence presented in this case shows that . . . Ray had undergone knee replacement
surgery the previous day. On the morning of the fall, . . . Ray had sustained a fall in the
bathroom. It is undisputed that . . . Ray weighed 340 pounds. During the physical therapy
session at which the second fall occurred, only a single person, the physical therapist, was
in attendance. Had two additional persons been present, they could have grabbed . . . Ray’s
gait belt and prevented him from falling. It does not take an expert to conclude that the
absence of additional personnel was a proximate cause of . . . Ray’s fall.
(Citations omitted.) Brief for appellant at 19.
- 10 -
“As a general matter [in a medical malpractice action], expert testimony is required to
identify the applicable standard of care.” Thone v. Regional West Med. Ctr., 275 Neb. at 243, 745
N.W.2d at 903. Further,
Expert testimony is almost always required to prove proximate causation.
Nevertheless, as with the standard of care, the common-knowledge exception applies to
proximate causation in professional negligence cases. Thus causation may be inferred
without expert testimony if the causal link between the defendant’s negligence and the
plaintiff’s injuries is sufficiently obvious to laypersons. We note, however, that whether a
causal link is sufficiently obvious that it may be inferred under the common-knowledge
exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain
that it, too, may be inferred by laypersons.
Id., 275 Neb. at 250-51, 745 N.W.2d at 90. Ray urges that the nurses’ alleged misconduct here and
Ray’s resulting fall is one of those rare cases in which expert testimony was unnecessary to
establish the causal link between the nurses’ conduct and the resulting fall. We disagree.
As we stated before, the only evidence of negligence on the part of the Hospital’s nurses
was derived from evidence adduced by the Hospital in the form of excerpts from Deaconson’s
deposition. In those excerpts, Deaconson generally opined that the Hospital nurses were negligent
in failing to take Ray’s vital signs and perform neurological checks, failing to notify Ray’s family
in accordance with “fall policy,” and in failing to document the incident. As to these opinions on
negligence, even Deaconson indicated she could not issue an opinion on how these alleged
negligent acts caused or contributed to Ray’s fall. Instead, Deaconson deferred to other medical
providers to establish a causal link. Under these circumstances, we find that the link between the
alleged negligent acts in this record and the manner in which those negligent acts proximately
caused Ray’s fall and associated injury is not sufficiently obvious to laypersons and does not fall
within the common knowledge exception to the general rule requiring an expert to prove causation.
Ray’s argument fails.
The Hospital offered expert testimony indicating that any acts or omissions of the Hospital
nurses were not the proximate cause of Ray’s fall and resulting injury. This evidence shifted the
burden to Ray to provide contrary evidence on the issue of proximate causation. “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.”
Thone v. Regional West Med. Ctr., 275 Neb. 238, 250, 745 N.W.2d 898, 908 (2008). Ray provided
no such evidence at the summary judgment hearing. Accordingly, the district court properly
granted the Hospital’s motion for summary judgment.
CONCLUSION
For the reasons stated above, we affirm the district court’s grant of summary judgment in
favor of the Hospital.
AFFIRMED.
- 11 -