Ammon v. Nagengast ( 2017 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/18/2017 09:09 AM CDT
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AMMON v. NAGENGAST
Cite as 24 Neb. Ct. App. 632
Sheena A mmon, Special A dministrator of
the Estate of Patricia Cody, appellant,
v. Stephen Nagengast, M.D., and
General Surgery Associates,
LLC, appellees.
___ N.W.2d ___
Filed April 18, 2017. No. A-15-1184.
1. Jury Instructions: Appeal and Error. Whether a jury instruction
is correct is a question of law, which an appellate court indepen-
dently decides.
2. ____: ____. In an appeal based on a claim of an erroneous jury instruc-
tion, the appellant has the burden to show that the questioned instruction
was prejudicial and otherwise adversely affected a substantial right of
the appellant.
3. Negligence: Liability: Damages. Generally, an act wrongfully done by
the joint agency or cooperation of several persons, or done contempo-
raneously by them without concert, renders them liable for all damages,
both economic and noneconomic, jointly and severally.
4. Negligence: Tort-feasors: Liability: Damages. Under joint and several
liability, either tort-feasor may be held liable for the entire damage,
and a plaintiff need not join all tort-feasors as defendants in an action
for damages.
5. Tort-feasors: Compromise and Settlement. If a plaintiff settles with
one of the jointly and severally liable tort-feasors, then the plaintiff’s
recovery against the remaining tort-feasors is reduced by the actual
settlement amount.
6. Parties: Time. The proper timeframe to consider whether there are mul-
tiple defendants is when the case is submitted to the finder of fact.
7. Tort-feasors: Liability: Damages. Under the comparative fault statu-
tory scheme in Nebraska, joint tort-feasors who are defendants in an
action involving more than one defendant share joint and several liabil-
ity to the claimant for economic damages.
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AMMON v. NAGENGAST
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8. Tort-feasors: Compromise and Settlement: Liability. When the claim-
ant settles with a joint tort-feasor, the claimant forfeits that joint and
several liability.
9. Tort-feasors: Compromise and Settlement. The claimant cannot
recover from the nonsettling joint tort-feasor more than that tort-feasor’s
proportionate share in order to compensate for the fact that the claimant
made a settlement with another that may prove to be inadequate.
10. Jury Instructions: Pleadings: Evidence. A litigant is entitled to have
the jury instructed upon only those theories of the case which are pre-
sented by the pleadings and which are supported by competent evidence.
11. Jury Instructions. The general rule is that whenever applicable, the
Nebraska Jury Instructions are to be used.
12. Waiver: Appeal and Error. Errors not assigned in an appellant’s initial
brief are waived and may not be asserted for the first time in a reply
brief or during oral argument.
Appeal from the District Court for Otoe County: Jeffrey J.
Funke, Judge. Affirmed.
Greg Garland, of Greg Garland Law, Tara DeCamp, of
DeCamp Law, P.C., L.L.O., Kent A. Schroeder, of Ross,
Schroeder & George, L.L.C., and Kathy Pate Knickrehm
for appellant.
William L. Tannehill and John P. Weis, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., for appellees.
Moore, Chief Judge, and Inbody and Pirtle, Judges.
Pirtle, Judge.
INTRODUCTION
Sheena Ammon, the special administrator of the estate
of Patricia Cody, brought a medical malpractice action
against Denise Husen Murry; Murry’s employer, Sleep Tight
Anesthesia, P.C.; St. Mary’s Community Hospital; Stephen
Nagengast, M.D.; and Nagengast’s employer, General Surgery
Associates LLC (GSA). Ammon alleged that the defendants
were professionally negligent and that their joint and sev-
eral acts proximately caused injury to and the death of her
mother, Cody.
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AMMON v. NAGENGAST
Cite as 24 Neb. Ct. App. 632
Prior to trial, the claims against several of the defendants
were resolved by settlement. The case was tried to a jury,
which returned a verdict in favor of the remaining defendants,
Nagengast and GSA. Ammon timely appealed. Finding no
reversible error, we affirm.
BACKGROUND
The underlying facts of this case are not in dispute. Cody
underwent a medical procedure to remove abdominal adhesions
at St. Mary’s Community Hospital in Nebraska City, Nebraska,
on January 23, 2012. Nagengast, a board-certified general sur-
geon who has been licensed to practice medicine in Nebraska
since 1991, was scheduled to perform the surgery.
A certified nurse anesthetist (CRNA), Murry, assisted
Nagengast. Murry was employed as an independent practi­
tioner at the time of the surgical procedure. Nagengast experi-
enced “difficulty insufflating” Cody at the start of the laparo-
scopic procedure, and opted to change to an “open technique.”
Roughly 5 minutes into the procedure, Murry alerted Nagengast
that Cody was doing poorly and that the procedure needed to
be aborted.
Cody no longer had a pulse, and her condition did not
improve once the “insufflation gas” was removed. Nagengast
testified that he was not informed of any change in Cody’s
condition until she was in cardiac arrest. Oxygen was provided
to Cody and the “advanced cardiac life support” protocol,
including the administration of cardiopulmonary resuscitation
(CPR), began immediately. The medical staff performed CPR
for 15 minutes, and after Cody’s cardiac status resumed, she
was transferred to a hospital in Lincoln, Nebraska, where she
died on January 24, 2012.
Ammon, the special administrator of Cody’s estate, brought
a medical malpractice action against Murry, Sleep Tight
Anesthesia, St. Mary’s Community Hospital, Nagengast, and
GSA. Ammon alleged that Murry, Nagengast, and St. Mary’s
Community Hospital were professionally negligent and that
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AMMON v. NAGENGAST
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their joint and several acts proximately caused the injury to and
the death of Cody.
On November 14, 2014, St. Mary’s Community Hospital
was dismissed from this action with prejudice. Prior to trial,
Ammon, Murry, and/or Sleep Tight Anesthesia reached a con-
fidential settlement agreement, and the claims against them
were dismissed with prejudice. The only remaining parties
at trial were Nagengast and GSA (hereinafter collectively
appellees).
At trial, the issue before the jury was whether Nagengast
was professionally negligent in “failing to place . . . Cody
in the Trendelenburg position and the Durant’s position upon
being notified the laparoscopic procedure should be aborted.”
Raymond J. Lanzafame, M.D., is a general surgeon licensed
to practice medicine in the State of New York. Lanzafame’s
videotaped deposition was presented at trial, and the video
and the deposition transcript were entered as exhibits. He
testified that it would have been appropriate for Nagengast
to reposition Cody in the Trendelenburg position and the
Durant’s position. The Trendelenburg position is “head
down,” relative to the patient’s feet, and the Durant’s posi-
tion features the patient on her left side, or in the “left lat-
eral decubitus” position. He testified that the purpose of
repositioning the patient would be to release an “airlock [or]
gas bubble” that could have accumulated in the heart, pre-
venting the flow of blood into the pulmonary circuit. This
would allow a bubble to rise to the top and allow gravity to
move blood through the heart.
Lanzafame testified that after attempting to reposition the
patient, if the situation warranted, it would be proper to insti-
tute the advanced cardiac life support protocol. Lanzafame
testified that Nagengast did not follow this standard of care
and that this breach directly caused Cody’s injuries, the result
of which was death by permanent brain damage due to lack
of oxygen.
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He testified that if Nagengast had known Cody’s “end tidal”
carbon dioxide level had dropped before the arrhythmia, it
would have made a heart attack much less likely as the pri-
mary event. Lanzafame testified that information regarding a
drop in end tidal carbon dioxide was not communicated by
Murry to Nagengast and that this information would have aided
Nagengast’s diagnostic process.
Nagengast testified that at the time Cody was transferred
to the hospital in Lincoln, the doctors had ruled out pneumo­
thorax, but had not ruled out myocardial infarction, arrhythmia,
pulmonary embolism, or venous air embolism. It is difficult
to rule out these conditions in an emergency setting because
the proper equipment is not available in an operating room.
Nagengast testified that after seeing additional evidence and
studies, which were not available at the time Cody was treated,
he was able to rule out some of those causes. He testified that
there was “no doubt in [his] mind that she died of a venous air
embolism,” which is a very rare, but recognized, complication
related to the surgery he performed.
Nagengast stated that positional changes, such as placing
the patient in the Durant’s position, are to be used, unless
the patient has had a cardiovascular collapse. He testified
that when a patient is in cardiopulmonary arrest, even from
a venous air embolism, it is recognized that “you should pro-
ceed with CPR and not positioning changes.” The advanced
cardiac life support protocol is used to treat myocardial infarc-
tion, ischemic arrhythmia, pulmonary embolism, or venous air
embolism. Nagengast testified that he met the standard of care
of a reasonable surgeon under the circumstances and that if he
were placed in the same situation again, he would follow the
same procedure he used with Cody.
Greg A. Fitzke, M.D., is a general surgeon practicing medi-
cine in Lincoln. He became board certified in 2005, and he
testified as an expert witness in this case. Fitzke opined that
the most appropriate action under the circumstances was to
initiate CPR, rather than positional changes, because Cody was
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AMMON v. NAGENGAST
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in cardiac arrest. He testified that, in his opinion, Nagengast
provided the expected standard of care, in all respects, under
the circumstances.
Ammon’s counsel objected to jury instructions Nos. 2 and
24, and the objections were overruled.
Jury instruction No. 2 stated as follows:
STATEMENT OF THE CASE—NEGLIGENCE
I. Plaintiff’s Claims
A. ISSUES
This is a medical malpractice or professional negligence
action filed by Sheena Ammon, as Special Administrator
of the Estate of Patricia Cody, deceased, against Stephen
Nagengast, M.D. and General Surgery Associates, LLC
(“GSA”) arising out of a surgical procedure performed on
Patricia Cody on January 23, 2012.
There are two Defendants in this lawsuit. The inter-
ests of Dr. Nagengast and GSA are the same. If you find
in favor of one of them, you must find in favor of both
of them. If you find against one of them, you must find
against both of them.
Plaintiff claims that Defendant Dr. Nagengast was pro-
fessionally negligent in the following way:
1. In failing to place Patricia Cody in the Trendelenburg
position and the Durant’s position upon being notified the
laparoscopic procedure should be aborted.
Patricia Cody was pronounced deceased on January 24,
2012. Plaintiff claims Patricia Cody’s death was a result
of the alleged professional negligence and seeks a judg-
ment against the Defendants for the damages which she
alleges resulted from Patricia Cody’s death.
Dr. Nagengast and GSA admit that Dr. Nagengast
had a patient relationship with Patricia Cody and pro-
vided surgical treatment to Patricia Cody on January 23,
2012. They deny that Dr. Nagengast was negligent in
his treatment of Patricia Cody and further deny that any
alleged departure from the standard of care by him was a
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proximate cause of her death or of the damages claimed.
Dr. Nagengast and GSA claim that Dr. Nagengast acted
in a reasonable manner and in full compliance with all
appropriate standards of care. They also denied the nature
and extent of Plaintiffs damages.
B. BURDEN OF PROOF
Before the Plaintiff can recover against Dr. Nagengast
and GSA, Plaintiff must prove, by the greater weight of
the evidence, each and all of the following:
1. That Dr. Nagengast was professionally negligent in
one or more of the ways claimed by the plaintiff.
2 That any such professional negligence of Dr.
Nagengast was a proximate cause of decedent’s death.
3. That the death of the decedent was a proximate
cause of some damage to her “next of kin”; and
4. The nature and extent of any pecuniary losses sus-
tained by the “next of kin” as a result of the decedent’s
death. “Next of kin” is defined for you in Instruction
No. 11.
C. EFFECT OF FINDINGS
1. If the Plaintiff has not met her burden of proof with
respect to the Defendants, then your verdict must be for
the Defendants, and you will use Verdict Form No. 1 (in
favor of Dr. Nagengast and GSA).
2. If the Plaintiff has met her burden of proof with
respect to the Defendants, then you must consider the
defendant’s affirmative defense.
Defendant’s Defense
A. Issues
In defense of Plaintiff’s claim, Defendants allege that
if any negligence occurred, it was committed by Denise
Murry, CRNA, in the performance of the surgical proce-
dure in the following way:
1. Failing to inform Dr. Nagengast that Patricia Cody’s
end tidal CO2 dropped prior to Patricia Cody experiencing
cardiac arrhythmias.
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AMMON v. NAGENGAST
Cite as 24 Neb. Ct. App. 632
B. Burden of Proof
In connection with Defendants’ claim that Denise
Husen (Murry), CRNA, was negligent, the burden is upon
the defendants by the greater weight of the evidence to
prove both of the following:
1. That Denise Husen (Murry), CRNA, was negligent
in one or more ways claimed by the defendants;
2. That this negligence on the part of Denise Husen
(Murry), CRNA, was a proximate cause of plaintiff’s
damages.
C. EFFECT OF FINDINGS
1. If the plaintiff has met her burden of proof and the
defendant has not met his burden of proof, then your ver-
dict must be for the plaintiff.
2. If the Plaintiff has met her burden of proof with
respect to the Defendants and the Defendants have not
met their burden of proof with respect to Denise Husen
(Murry), CRNA, then you must use Verdict Form No. 2.
3. If the Plaintiff has met her burden of proof with
respect to the Defendants and the Defendants have met
their burden of proof with respect to Denise Husen
(Murry), CRNA, then you must use Verdict Form No. 3
allocating their negligence.
(Emphasis in original.)
Jury instruction No. 24 explained how the jury would cal-
culate damages if the jury determined the damages should be
allocated between appellees and Murry.
The jury returned a unanimous verdict for appellees, using
verdict form No. 1. Ammon timely appealed.
ASSIGNMENT OF ERROR
Ammon asserts:
The trial court erred by submitting Instructions number[s]
2 and 24 and Verdict Forms 2 and 3 to the jury con-
cerning the negligence of Husen (Murry) and apportion-
ment of damages and in failing to properly instruct the
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jury concerning [Appellees’] negligence relative to their
defense that [Cody’s] injuries and damages were the
proximate result of the actions or in-actions of others over
whom they had no control.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of law,
which an appellate court independently decides. RM Campbell
Indus. v. Midwest Renewable Energy, 294 Neb. 326, 886
N.W.2d 240 (2016).
[2] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial and otherwise adversely
affected a substantial right of the appellant. Scheele v. Rains,
292 Neb. 974, 874 N.W.2d 867 (2016).
ANALYSIS
Ammon argues the trial court erred in submitting jury
instructions Nos. 2 and 24, as well as verdict forms Nos. 2
and 3 to the jury. However, we note that verdict forms Nos.
2 and 3 were not included in the record. Only verdict form
No. 1 is found in the record presented to us in this appeal.
Citing Neb. Rev. Stat. § 25-21,185.10 (Reissue 2016) and
Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d 455 (2001),
Ammon asserts that only one defendant remained at the time
the case was submitted to the jury and that the jury should
not have been permitted to allocate a percent of damages or
negligence to the defendants who were no longer part of the
proceedings. She asserts that because appellees were the only
remaining defendants when the case was submitted to the jury,
the instructions regarding an allocation of negligence to Murry
and Sleep Tight Anesthesia incorrectly stated the law and were
misleading. We disagree.
Ammon’s only assignment of error relates to the appro-
priateness of the jury instructions provided in this case and,
more specifically, to whether Murry’s negligence should have
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been submitted to the jury under any circumstance. However,
to be able to determine whether the court erred in giving
instructions regarding the allocation of negligence, we must
examine the applicability of the comparative fault statutes
governing joint and several liability in civil actions.
[3-5] The Nebraska Supreme Court has considered the appli-
cability of § 25-21,185.10 and Neb. Rev. Stat. § 25-21,185.11
(Reissue 2016) in situations similar to the circumstances of
this case. Generally, under Nebraska common law, an act
wrongfully done by the joint agency or cooperation of several
persons, or done contemporaneously by them without con-
cert, renders them liable for all damages, both economic and
noneconomic, jointly and severally. Tadros v. City of Omaha,
273 Neb. 935, 735 N.W.2d 377 (2007). Under such joint and
several liability, either tort-feasor may be held liable for the
entire damage, and a plaintiff need not join all tort-feasors as
defendants in an action for damages. Id. Also, in accordance
with the underpinnings of joint and several liability, our com-
mon law follows the traditional rule that if the plaintiff settles
with one of the jointly and severally liable tort-feasors, then
the plaintiff’s recovery against the remaining tort-feasors is
reduced by the actual settlement amount. Id.
[6] Ammon argues that the provisions of § 25-21,185.10
are inapplicable because there was only one defendant in this
case at the time the case was submitted to the jury. In Maxwell
v. Montey, supra, the Nebraska Supreme Court explained that
if the action does not involve multiple party defendants, then
§ 25-21,185.10 is not applicable. The proper timeframe to con-
sider whether there are multiple defendants is when the case is
submitted to the finder of fact. See id. Because Murry was no
longer a defendant in Ammon’s action at the time the case was
submitted to the jury, we agree that § 25-21,185.10 is inap-
plicable to the question of apportionment of liability between
appellees and Murry. However, unlike in Maxwell v. Montey,
supra, Murry was not merely dismissed as a party—she was
dismissed pursuant to a settlement agreement.
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In Tadros v. City of Omaha, supra, the Nebraska Supreme
Court determined that § 25-21,185.11 abrogated common law
with regard to the apportionment of liability between a party
defendant joint tort-feasor and a nonparty settling tort-feasor.
Section 25-21,185.11 states in full:
(1) A release, covenant not to sue, or similar agree-
ment entered into by a claimant and a person liable shall
discharge that person from all liability to the claimant
but shall not discharge any other persons liable upon the
same claim unless it so provides. The claim of the claim-
ant against other persons shall be reduced by the amount
of the released person’s share of the obligation as deter-
mined by the trier of fact.
(2) A release, covenant not to sue, or similar agree-
ment entered into by a claimant and a person liable shall
preclude that person from being made a party or, if an
action is pending, shall be a basis for that person’s dis-
missal, but the person’s negligence, if any, shall be con-
sidered in accordance with section 25-21,185.09.
(Emphasis supplied.)
We note that Neb. Rev. Stat. § 25-21,185.09 (Reissue 2016)
dictates the effect that a claimant’s contributory negligence
has on the claimant’s recovery. There was no allegation of any
contributory negligence chargeable to Cody, so § 25-21,185.09
is not applicable to this case.
Ammon asserts that Neb. Rev. Stat. §§ 25-21,185.07 to
25-21,185.12 (Reissue 2016), the statutes which govern civil
actions to which contributory negligence is a defense, apply
only to cases in which contributory negligence of the claimant
is at issue. She argues that because Cody’s negligence was not
at issue, these statutes, specifically § 25-21,185.11(2), do not
apply in this case.
Traditionally, contributory negligence is defined as “[a]
plaintiff’s own negligence that played a part in causing the
plaintiff’s injury . . . .” Black’s Law Dictionary 1196 (10th ed.
2014). However, it also can be defined as “[t]he negligence of
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a third party — neither the plaintiff nor the defendant — whose
act or omission played a part in causing the plaintiff’s injury.”
Id. at 1197. In this case, appellees asserted the negligence of
a settling third-party tort-feasor as a defense; thus, this is a
“civil action to which contributory negligence was asserted as
a defense,” and the provisions of the comparative fault statutes,
including § 25-21,185.11, are applicable.
As reflected above, § 25-21,185.11(1) plainly states that
after the claimant settles with a joint tort-feasor, the claims
against other persons “shall be reduced by the amount of the
released person’s share of the obligation as determined by the
trier of fact.”
[7-9] Under the comparative fault statutory scheme in
Nebraska, joint tort-feasors who are “‘defendants’” in an action
“‘involving more than one defendant’” share joint and several
liability to the claimant for economic damages. See Tadros
v. City of Omaha, 273 Neb. 935, 941, 735 N.W.2d 377, 382
(2007). But, when the claimant settles with a joint tort-feasor,
the claimant forfeits that joint and several liability. Id. The
claimant cannot recover from the nonsettling joint tort-feasor
more than that tort-feasor’s proportionate share in order to
compensate for the fact that the claimant made a settlement
with another that may prove to be inadequate. Id.
The “Special Note” which follows NJI2d Civ. 2.01 provides
guidance to us in this case and states in part:
(§ 25-21,185.10 does not operate until the finder of fact
has determined liability and is apportioning damages;
“Because the statute’s effect is on only the apportionment
of damages between multiple defendants after liability
has been established, the proper timeframe to consider in
determining whether there are, in fact, multiple defend­
ants in a case is when the case is submitted to the
finder of fact”; presumably, the just quoted rule does not
apply when at least one defendant has been discharged
from a lawsuit by a release, a covenant not to sue, or
a similar agreement entered into by a claimant and a
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person liable; all of this is discussed further at NJI2d Civ.
5.04, Comment).
(Emphasis supplied.)
In the comment to NJI2d Civ. 5.04, the following appears:
VII. HOW DAMAGES ARE APPORTIONED
WHEN THERE WAS MORE THAN ONE
TORTFEASOR BUT THERE IS ONLY ONE
DEFENDANT IN THE CASE WHEN IT IS
SUBMITTED TO THE TRIER OF FACT.
....
For purposes of the application of Nebraska’s compara-
tive negligence statute, there are two ways this can occur,
each with a different solution. There are two different
ways to handle this situation, two different ways the trier
of fact must be instructed, depending how the situation
has arisen.
The first jury-instruction situation itself arises either
when there was only ever one putative joint tortfeasor in
the case or when there was more than one but all but the
one remaining were dismissed for reasons of pleading
or proof [(e.g., failure to state a cause of action, failure
to prove a prima facie case, etc.)] (This was the situa-
tion in Maxwell v. Montey, 262 Neb. 160, 631 N.W.2d
455 (2001).) In this case, the applicable statutory section
is Neb.Rev.Stat. § 25-21,185.10 (Reissue 2008). In this
situation, no instruction on apportionment of damages is
called for (or allowed).
The second jury-instruction situation arises when
there was more than one putative joint tortfeasor in the
case—either because the claimant originally sued or later
brought into the case more than one alleged joint tortfea-
sor or a defendant brought other putative joint tortfeasors
into the case—and all but the one remaining alleged
tortfeasor have been dismissed from the case pursuant to
a release, covenant not to sue, or similar agreement. This
includes the putative tortfeasor dismissed pursuant to a
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settlement with the plaintiff. (This was the situation in
Tadros v. City of Omaha, 273 Neb. 935, 942, 735 N.W.2d
377, 381 (2007).) In this case, the applicable statutory
section is Neb.Rev.Stat. § 25-21,185.11 (Reissue 2008). In
this situation, jury instruction on apportionment of dam-
ages is required.
(Emphasis supplied.)
In this particular case, the jury was instructed to determine
whether Nagengast was professionally negligent in “failing to
place . . . Cody in the Trendelenburg position and the Durant’s
position upon being notified the laparoscopic procedure should
be aborted.” If the jury found that Ammon had not met her
burden of proof with respect to appellees, verdict form No. 1
was to be used. If the jury found that Ammon met her burden
of proof with respect to appellees, then the jury was instructed
to consider appellees’ affirmative defense that “if any negli-
gence occurred, it was committed by . . . Murry” for failing to
provide information to Nagengast that would have assisted him
in diagnosing and treating Cody’s complications during the
surgical procedure.
The jury was instructed to use verdict form No. 2 if it found
Ammon had met her burden of proof with respect to appel-
lees, and appellees failed to meet their burden of proof with
respect to Murry. The jury then was instructed to use verdict
form No. 3 if Ammon met her burden of proof with respect
to appellees and appellees met their burden with respect
to Murry.
Because § 25-21,185.11 mandates reduction by the settling
tort-feasor’s proportionate share of liability as determined by
the trier of fact, the court did not err in allowing the jury to
allocate negligence between appellees and Murry if the jury
determined that Ammon had met her burden of proof with
regard to appellees.
Ammon also asserts the trial court erred in providing
instruction No. 24, which explained how the jury should
total the amount of damages if the jury determined Cody’s
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damages were caused by both Nagengast and Murry. From
the outset of the case, Ammon asserted that Murry was neg-
ligent in the performance of her professional duties during
Cody’s procedure. However, at the time of trial, Ammon
argued that language related to Murry was misleading and
prejudicial. The trial court overruled Ammon’s objection to
instruction No. 24.
The court determined that an allocation instruction regarding
Nagengast’s alleged negligence compared to Murry’s alleged
negligence was warranted. The court recognized the obligation
to correctly instruct the jury and give adequate instructions to
explain the effects of an allocation of negligence. The court
specifically stated:
The Court, in reviewing the evidence — there’s been
evidence presented, first that . . . Murry . . . was a
defend­ant in a case that was released and dismissed prior
to trial and before this case is submitted to the trier of
fact. The Court believes, as a result of that, that may
entitle an issue of allocation. The Court believes that the
evidence presented in, specifically, Dr. Lanzafame’s tes-
timony and Dr. Nagengast’s testimony is that they would
have expected, as the surgeon in charge of the OR, to be
told positive findings, such as a drop in end-tidal CO2,
and that would have been a relevant factor to be made
aware of and may have had some impact on how they
proceeded in — Dr. Nagengast proceeded in treating
. . . Cody.
The evidence shows that Nagengast and Murry had worked
together professionally and that they were expected to share
information vital to the treatment of the patient. Nagengast
testified that he relied on Murry to provide him with necessary
information without being asked.
Ammon’s own expert witness, Lanzafame, testified that,
based upon his review of the evidence, Murry did not com-
municate information to Nagengast that would have been help-
ful in diagnosing the complications Cody experienced during
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the surgical procedure. Lanzafame was asked whether the two
healthcare providers, Nagengast and Murry, misdiagnosed the
issue that Cody experienced, and he opined that “they” mis-
diagnosed the cause of Cody’s “emergent issue.” Lanzafame
testified that in his personal experience, he had relied upon
his participating anesthetist to communicate a patient’s drop in
carbon dioxide levels and stated that this information is impor-
tant to properly treat a patient.
Prior to the close of Ammon’s case, appellees’ counsel
made an offer of proof regarding “allocation against a released
and dismissed defendant, under Nebraska Revised Statute
§ 25-21,185.11,” and Ammon’s counsel agreed, without objec-
tion. As a result, it would appear that Ammon settled her case
with a joint tort-feasor, with the knowledge that an issue of
allocation of negligence would be forthcoming before the end
of the trial.
[10,11] A litigant is entitled to have the jury instructed
upon only those theories of the case which are presented by
the pleadings and which are supported by competent evi-
dence. RM Campbell Indus. v. Midwest Renewable Energy,
294 Neb. 326, 886 N.W.2d 240 (2016). Given the pleadings,
Ammon’s allegations of professional negligence by Nagengast
and Murry, and the evidence and testimony presented at trial,
an instruction regarding the potential allocation of negligence
was warranted. We find the trial court correctly instructed the
jury (over Ammon’s objections), including jury instructions
Nos. 2 and 24, all of which appear to have been taken directly
from the Nebraska pattern jury instructions. The general rule
is that whenever applicable, the Nebraska Jury Instructions are
to be used. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d
37 (2015).
Further, and perhaps most importantly, at the conclusion of
their deliberations, the jury unanimously entered its verdict
using verdict form No. 1, finding Ammon had not met her
burden of proof against appellees, thereby finding in favor of
appellees. Even if jury instructions Nos. 2 and 24 were given
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in error, Ammon cannot show, on these facts, that she was
prejudiced by the instructions, because the jury found Ammon
had failed to prove her underlying case against appellees.
Thus, the jury never reached the issue of comparative fault
and verdict forms Nos. 2 and 3 were not used. Hence, any
error by the court in giving instructions Nos. 2 and 24, and
in allowing the jury to consider verdict forms Nos. 2 and 3,
was harmless.
[12] Finally, during oral argument, Ammon’s counsel
asserted that because there were no opinions offered by any
expert witness regarding a breach of the applicable standard
of care by Murry, there could be no basis to determine her
negligence. Although this argument was made in Ammon’s
reply brief, it was not assigned as error nor was it argued in
Ammon’s initial brief filed in this appeal. Errors not assigned
in an appellant’s initial brief are waived and may not be
asserted for the first time in a reply brief or during oral
argument. See Genetti v. Caterpillar, Inc., 261 Neb. 98, 621
N.W.2d 529 (2001).
CONCLUSION
We affirm the decision of the district court, entering an
order of judgment in favor of appellees, pursuant to the jury
verdict rendered in this case.
A ffirmed.