Rodriguez v. Surgical Assocs.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/02/2018 08:15 AM CST
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Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
Francisca Rodriguez, an individual, appellant, v.
Surgical Associates P.C. and Greg Fitzke, M.D.,
an individual, appellees.
___ N.W.2d ___
Filed January 5, 2018. No. S-16-698.
1. Jury Instructions. Whether a jury instruction is correct is a question
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
4. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
5. Judges: Words and Phrases. A judicial abuse of discretion exists if the
reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in matters
submitted for disposition.
6. 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.
7. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant 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.
8. Negligence: Liability: Contractors and Subcontractors. Generally,
one who employs an independent contractor is not vicariously liable for
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
physical harm caused to another by the acts or omissions of the contrac-
tor or its servants. An employer’s liability for the breach of a nondel-
egable duty, however, is an exception to this general rule.
9. Negligence: Liability: Contractors and Subcontractors: Words and
Phrases. A nondelegable duty means that an employer of an indepen-
dent contractor, by assigning work consequent to a duty, is not relieved
from liability arising from the delegated duties negligently performed.
10. Negligence: Liability. As a result of a nondelegable duty, the respon-
sibility or ultimate liability for proper performance of a duty cannot be
delegated, although actual performance of the task required by a nondel-
egable duty may be done by another.
11. Negligence: Jury Instructions. A nondelegable duty instruction is not
appropriate when there are no judicial admissions or evidence that a
defendant had assigned the performance of his duties to a subordinate
party at the time that the alleged breach occurred.
12. Jury Instructions: Damages: Proximate Cause: Proof. A preexisting
condition jury instruction does not permit a jury to assess damages in
any amount unless the plaintiff first proves proximate cause.
13. Juries: Verdicts: Presumptions. When the jury returns a general ver-
dict for one party, an appellate court presumes that the jury found for
the successful party on all issues raised by that party and presented to
the jury.
14. Appeal and Error. The purpose of an appellant’s reply brief is to
respond to the arguments the appellee has advanced against the errors
assigned in the appellant’s initial brief.
15. Records: Appeal and Error. It is incumbent upon the appellant to
present a record supporting the errors assigned; absent such a record,
an appellate court will affirm the lower court’s decision regarding
those errors.
16. Rules of Evidence: Expert Witnesses: Hearsay. Under Neb. Evid. R.
703, Neb. Rev. Stat. § 27-703 (Reissue 2016), an expert may rely on
hearsay facts or data reasonably relied upon by experts in that field.
17. Expert Witnesses: Physicians and Surgeons: Records. A medical
expert may express opinion testimony in medical matters based, in part,
on reports of others which are not in evidence but upon which the expert
customarily relies in the practice of his or her profession.
18. Expert Witnesses: Records: Hearsay: Testimony. The mere fact that
an expert relied on hearsay does not transform it from inadmissible into
admissible evidence. However, inadmissible evidence, upon which an
expert relies, may be admitted on direct examination if it was offered
not to prove the truth of the matter asserted but simply to demonstrate
the basis for the expert’s testimony.
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Nebraska Supreme Court A dvance Sheets
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
Appeal from the District Court for Lancaster County: Lori
A. M aret, Judge. Affirmed.
Steven H. Howard, of Dowd, Howard & Corrigan, L.L.C.,
for appellant.
James A. Snowden and Elizabeth Ryan Cano, of Wolfe,
Snowden, Hurd, Luers & Ahl, L.L.P., for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Funke, J.
This appeal arises from an order entered on a general
jury verdict for Greg Fitzke, M.D., and Surgical Associates
P.C. (collectively appellees) in a medical negligence claim.
Francisca Rodriguez claimed that Fitzke was negligent in fail-
ing to timely diagnose and treat her, which resulted in her suf-
fering additional injuries.
Rodriguez claims that the court committed reversible error
in denying certain jury instructions and allowing witnesses to
provide expert opinions that were not disclosed before trial.
Because we do not find merit in Rodriguez’ claims, we affirm.
I. BACKGROUND
1. Factual Background of Rodriguez’
Hospitalization and Treatment
On April 16, 2012, Rodriguez was referred to a hospital in
Lincoln, Nebraska, due to stomach pains, fever, and nausea.
Fitzke is a general surgeon and a partner in Surgical
Associates who has surgical privileges at the hospital. Upon
examining Rodriguez, Fitzke determined that she needed an
immediate cholecystectomy, a surgical procedure to remove
her gallbladder. Rodriguez’ gallbladder was gangrenous and
had attached to other organs around it.
While her gallbladder was being removed, it ruptured and
released stones and purulent material, or pus, into Rodriguez’
abdominal cavity—an unavoidable risk of the surgery. Fitzke
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
cleaned the abdomen and inserted a drain in Rodriguez’
hepatic fossa to allow any accumulation of tissue fluids from
the procedure to drain out of the body and be monitored.
During or as a result of the surgery, however, Rodriguez’
intestine was also perforated, a fact not known by Fitzke at
the time.
Later that evening, Rodriguez appeared to be recovering
well with only minor pain from the surgery. On April 17, 2012,
Rodriguez began experiencing significant pain and her status
changed from outpatient to inpatient. Fitzke and Raymond
Taddeucci, M.D., another partner with Surgical Associates,
testified that her condition was consistent with the extent
of her acute cholecystitis and the known complications of
the surgery.
Rodriguez’ vital signs were relatively stable on April 17,
2012. But, around 11 p.m., Rodriguez’ blood pressure became
hypotensive, nearly to the point of being classified as shock,
and her heart rate increased into tachycardia. At both 3 and 4
a.m., on April 18, Rodriguez’ vitals again exhibited significant
hypotension, meeting the criteria for shock, and tachycar-
dia. Additionally, she had an elevated respiratory rate, tachy-
pnea; elevated white blood cell count; and decreased oxygen
saturation level and urinary output. She was also reported to
be confused.
The surgeon on call for Surgical Associates ordered
Rodriguez transferred to the intensive care unit and engaged
internal medicine services for further treatment and evaluation.
She also received a broad-spectrum antibiotic, in addition to
the antibiotic that she was given shortly after surgery; intrave-
nous fluids; and oxygen.
A physician’s assistant stated in a 4 a.m. progress note
that Rodriguez had diffuse tenderness in her abdomen. He
also stated the following as potential causes for many of
Rodriguez’ symptoms: dehydration, blood pressure medica-
tions, and early mild sepsis—potentially resulting from the
gallbladder material that spilled into her abdomen during sur-
gery or a developing pneumonia. At about 7 a.m., an internal
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
medicine doctor ordered a CT scan with unspecified contrast
of Rodriguez’ abdomen because of her pain and hypotension.
X rays performed that morning showed that there was free air
in Rodriguez’ abdomen, which was expected after the proce-
dure, and new developing lobe infiltrates in the left lower lung,
which suggested the development of pneumonia.
At about 8 a.m., Fitzke examined Rodriguez and reviewed
her laboratory tests. He noted that her abdomen was soft,
tender, and distended but that there were no signs of perito-
nitis. He decided not to perform exploratory surgery, and he
canceled the order for a CT scan. He testified that administer-
ing intravenous fluids or oral contrast for the CT scan would
have been risky because of Rodriguez’ decreasing kidney
function and developing pneumonia and that the CT scan
was unlikely to produce useful information, based on both
his physical examination of her and the proximity to surgery.
Instead, he decided to continue treating Rodriguez with addi-
tional intravenous fluids and antibiotics. He stated that he dis-
cussed canceling the CT scan with the internist on duty later
that morning.
Throughout the day, test results indicated that Rodriguez’
condition was declining into severe sepsis. She continued
to experience hypotension, tachycardia, confusion, both an
elevated respiratory rate and white blood cell count, and
both decreased oxygen saturation levels and urinary output.
Rodriguez was also diagnosed with renal failure and exhibited
results indicating that she might be suffering organ failure in
her heart, brain, and liver.
Between 2 and 3 a.m., on April 19, 2012, the nurses called
an internal medicine doctor because Rodriguez was in shock.
The doctor placed a central venous catheter into a large vein
going down toward Rodriguez’ heart. In addition, he gave
Rodriguez two vasopressor drugs designed to elevate the blood
pressure to a safe level.
The doctor also ordered a “HIDA” scan, which tests whether
the liver and biliary system are functioning normally, because
bile-tinged fluids were beginning to exit from the drain in
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
Rodriguez’ hepatic fossa. The results of the HIDA scan showed
that fluid was passing from the liver to the intestine, ruling out
cholangitis. However, it was otherwise equivocal regarding a
leak from the biliary system, which would be treated by a non-
surgical procedure, and an intestinal leak, which is a surgical
emergency requiring intervention.
When Rodriguez was returned to the intensive care unit
at about 12:20 p.m., she again went into shock. Rodriguez
was placed on heavy sedation, to allow an endotracheal tube
to be inserted directly into the lungs, and placed on a ven-
tilator to help oxygenate her tissues. She was administered
80 percent oxygen, which meant she was going rapidly into
overt respiratory failure and clear septic shock. Beginning on
the evening of April 18 and throughout April 19, 2012, the
nurses also reported several times that Rodriguez’ abdomen
was distended.
Despite the deterioration in her condition, Rodriguez experi-
enced slight improvement in some of her test results. Many of
her issues from the previous day, however, persisted. At 12:20
p.m., Robin Allen, M.D., an internist, stated at the conclusion
of her progress report: “? Need to go back to OR.”
At about 1:15 p.m., Fitzke examined Rodriguez. He stated
in his progress report that her abdomen was not rigid or dis-
tended. He also indicated that she might have delayed sepsis
from the gross purulence released during her surgery but
that there were no signs of ascending cholangitis. Further, he
wrote that a CT would still be “of low yield” for identifying
a bile leak. He concluded that he would follow Rodriguez’
progress and that the sepsis protocol should continue to
be followed.
Fitzke testified that his primary consideration at that time
was that Rodriguez had sepsis, resulting from the ruptured
gallbladder, and that his secondary concern was a bile duct
leak. He did not consider an intestinal perforation to be
existent because she was not exhibiting peritonitis or succus
­entericus in her drain; while Rodriguez was not necessarily
getting better, factors indicated a positive response to therapy
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
and a potential for improvement. He discussed the factors
present with Allen, another treating physician, and believed
that she agreed he did not need to return Rodriguez to the
operating room.
At 5 p.m. on April 19, 2012, Fitzke transferred care of
Rodriguez to Taddeucci, because Fitzke had to be out of town
for a medical meeting the following day. Taddeucci testified
that he and Fitzke discussed Rodriguez’ condition; Fitzke was
not sure what was causing Rodriguez’ issues, but they dis-
cussed ascending cholangitis, pneumonia, and a bile leak as
potential causes.
That evening, John Duch, M.D., a nephrologist, noted that
Rodriguez’ abdomen was soft but distended with diminishing
bowel sounds. He also wrote: “Septic shock. She is on broad-
spectrum antibiotics and empiric vasoactive medications, and
surgery is following.” Additionally, Rodriguez began present-
ing a fever for the first time since her operation, and her urine
output decreased again.
By the morning of April 20, 2012, the other improve-
ments from April 19 had also reversed. Taddeucci examined
Rodriguez at about 12:30 p.m. and stated that she was now
experiencing peritonitis. Further, the pulmonologist and criti-
cal care doctor informed Taddeucci that they had done every-
thing they could but that her condition was not improving.
Taddeucci determined that a second surgery would be neces-
sary to address her condition, which he performed at around
2:30 p.m.
The surgery started as an exploratory laparoscopic proce-
dure, intended to discover possible explanations for Rodriguez’
decline. During this surgery, however, Taddeucci discovered
the perforation in Rodriguez’ small intestine. At that point, the
nature of the surgery changed to an anastomosis procedure,
which is an operation to remove a section of the intestine.
Taddeucci also extracted about two quarts of bilious fluid,
which had leaked from the intestine into Rodriguez’ abdomi-
nal cavity. Rodriguez tolerated the procedure well, and there
were no complications.
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
Ultimately, Rodriguez had eight additional operations dur-
ing the subsequent 11⁄2 months and remained hospitalized until
July, with numerous complications. She had her final opera-
tion in February 2013, which was a skin graft to heal a large
open wound on her abdomen that had persisted since her
release. Rodriguez ultimately recovered with no permanent
organ injuries.
2. Expert Opinions
At trial, Rodriguez called one surgical expert and one criti-
cal care physician. Each testified regarding his opinion of the
care Fitzke provided to Rodriguez.
The surgical expert testified that Fitzke breached the stan-
dard of care in three instances: (1) by failing to follow the
three-step protocol for treating septic shock, (2) by failing to
create and follow a reasonable surgical differential diagnosis,
and (3) by canceling the CT scan that had been ordered for
Rodriguez on April 18, 2012. The critical care physician also
testified that Fitzke’s canceling the CT scan and failing to
timely treat the source of Rodriguez’ infections were a breach
of the standard of care. As a result of these breaches, each
testified that Rodriguez’ corrective surgery was delayed by 2
days, occurring on April 20 instead of April 18. The critical
care physician also provided testimony concerning the injuries
that resulted from the delay.
Appellees called two expert surgical witnesses. They testi-
fied that canceling the CT scan was reasonable based on the
circumstances. Additionally, they stated that Fitzke had com-
plied with all reasonable standards of care during the postop-
eration period and that Fitzke made the correct decision by not
sending Rodriguez to surgery before April 20, 2012, given the
information available at that time.
3. Procedural History
Rodriguez filed her complaint in August 2013, and the
matter proceeded to a jury trial in April 2016. The following
allegations of negligence against Fitzke were submitted to the
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
jury: (1) failing to adequately assess Rodriguez following the
April 16, 2012, surgery; (2) canceling an April 18 CT scan; (3)
failing to order a CT scan; (4) failing to perform surgery on
April 18; and (5) failing to perform surgery on April 19.
During deliberations, the jury submitted a question to the
court regarding Duch’s note on April 19, 2012. The question
and answer by the court are as follows:
Can we have clarification on Dr. Duch[’s] note, Exhibit
56, p: 17:
Assessment & Plan:
#4: Septic Shock — “surgery is following”
Does this mean that a surgical operation is expected to
occur, or that the surgical team will be following up?
Response:
You must base your verdict only on the evidence pre-
sented to you during the trial and the instructions of law
I have given you.
The jury returned a general verdict for appellees. Rodriguez
filed a motion for new trial, which was overruled. Rodriguez
then perfected a timely appeal. We moved the case to our
docket pursuant to our authority to regulate the caseloads of
this court and the Nebraska Court of Appeals.1
II. ASSIGNMENTS OF ERROR
Rodriguez assigns, restated and reordered, that the court
erred in (1) failing to give the requested jury instruction
regarding Fitzke’s liability for the negligence of his surgical
team; (2) failing to give the requested jury instruction regard-
ing the aggravation of her preexisting condition; (3) allow-
ing appellees’ expert, Taddeucci, to give expert testimony
on issues not previously disclosed; and (4) permitting Fitzke
to quote a nonexpert and nontestifying treating physician
regarding the standard of care for his postoperative treatment
of Rodriguez.
1
Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
III. STANDARD OF REVIEW
[1,2] Whether a jury instruction is correct is a question of
law.2 When reviewing questions of law, an appellate court has
an obligation to resolve the questions independently of the
conclusion reached by the trial court.3
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.4 A trial court
has the discretion to determine the relevancy and admissibility
of evidence, and such determinations will not be disturbed on
appeal unless they constitute an abuse of that discretion.5
[5] A judicial abuse of discretion exists when the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition.6
IV. ANALYSIS
1. Trial Court Did Not Err in R ejecting
Rodriguez’ R equested Jury Instructions
[6] Jury instructions are subject to the harmless error rule,
and an erroneous jury instruction requires reversal only if the
error adversely affects the substantial rights of the complain-
ing party.7 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
evidence.8
2
See Armstrong v. Clarkson College, 297 Neb. 595, 901 N.W.2d 1 (2017).
3
Id.
4
Id.
5
Cohan v. Medical Imaging Consultants, 297 Neb. 111, 900 N.W.2d 732
(2017), modified on denial of rehearing 297 Neb. 568, 902 N.W.2d 98.
6
Armstrong, supra note 2.
7
Jay v. Moog Automotive, 264 Neb. 875, 652 N.W.2d 872 (2002).
8
Armstrong, supra note 2.
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RODRIGUEZ v. SURGICAL ASSOCS.
Cite as 298 Neb. 573
[7] 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.9 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 concerning
the instructions and necessitating a reversal.10
(a) Rodriguez Was Not Entitled to Have
Nondelegable Duty Language Included
in Jury Instructions
Rodriguez contends that the court erred by not including
nondelegable duty of care language in jury instruction No. 2.
She argues that experts on both sides testified that whether
Rodriguez was returned to surgery was ultimately Fitzke’s
decision, as her attending surgeon. Additionally, she argues
that she was prejudiced by the potential for jurors to believe
that other doctors were negligent in not returning her to surgery
and cites the jury’s question about Duch’s note as evidence of
the confusion.
Appellees contend that the nondelegable duty doctrine is
not applicable here, because there was no allegation of a neg-
ligent error or omission by a person other than Fitzke. They
also argue that Rodriguez was not prejudiced, because there
was no attempt to shift the blame to a nonparty and the court
gave another instruction that Fitzke could still be liable even if
another individual was also negligent.
[8] Generally, one who employs an independent contractor
is not vicariously liable for physical harm caused to another by
the acts or omissions of the contractor or its servants.11 This is
9
Id.
10
Id.
11
See Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
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the general rule, because an employer of an independent con-
tractor generally has no control over the manner in which the
work is to be done by the contractor, so the contractor, rather
than the employer, is the proper party to be charged with the
responsibility of preventing the risk and bearing and distribut-
ing it.12 An employer’s liability for the breach of a nondelega-
ble duty, however, is an exception to this general rule.13
[9,10] A nondelegable duty means that an employer of
an independent contractor, by assigning work consequent to
a duty, is not relieved from liability arising from the del-
egated duties negligently performed.14 As a result of a nondel-
egable duty, the responsibility or ultimate liability for proper
per­formance of a duty cannot be delegated, although actual
perform­ance of the task required by a nondelegable duty may
be done by another.15 Thus, the person owing a nondelegable
duty is not excused from taking the necessary precautions by
contracting with or relying on others to take necessary precau-
tionary measures.16
Whether a duty is nondelegable is a question of law.17 There
is no set formula for determining when a duty is nondelegable.18
“‘Indeed, whether a particular duty is properly categorized as
“nondelegable” necessarily entails a sui generis inquiry, since
the conclusion ultimately rests on policy considerations.’”19 In
a given case, the policy question facing a court is whether, on
the facts presented, the public interest warrants imposition upon
a person who has delegated a task the duty to guard against
12
Id.
13
Eastlick v. Lueder Constr. Co., 274 Neb. 467, 741 N.W.2d 628 (2007).
Accord Gaytan, supra note 11.
14
Gaytan, supra note 11.
15
Breeden v. Anesthesia West, 265 Neb. 356, 656 N.W.2d 913 (2003).
16
Id.
17
Id.
18
Id.
19
Id. at 363, 656 N.W.2d at 920.
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risks implicit in the performance of the task.20 Courts have often
deemed a duty to be nondelegable when the responsibility is so
important to the community that the employer should not be
permitted to transfer it to another.21
In Long v. Hacker,22 we held that a head surgeon is ulti-
mately liable for the negligent acts or omissions of the indi-
viduals assisting him or her in surgery.23 However, we have
also held that surgeons are not liable for the failure of hospital
employees to execute reasonable instructions left for the treat-
ment of the patient.24 We have not before considered whether
an attending surgeon has a nondelegable duty to diagnose and
treat a patient by returning the patient to surgery when neces-
sitated by his or her condition.
In Morgan v. Mysore,25 the plaintiff alleged that the defend­
ant, the internist in charge of the patient’s care, was negligent
in failing to make a timely diagnosis and treat the patient
appropriately. The trial court rejected the plaintiff’s requested
jury instruction that the defendant had a nondelagable duty
“‘to be aware of all reasonably available medical informa-
tion significant to the health of his patient during the time
that he is providing medical care to his patient.’”26 The Court
of Appeals affirmed the lower court’s decision, because the
plaintiff “did not present evidence that [the defendant] del-
egated or assigned duties in regard to [the patient’s] avail-
able medical information and [the defendant] did not contend
20
Id.
21
Id.
22
Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994).
23
See, also, Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997);
Swierczek v. Lynch, 237 Neb. 469, 466 N.W.2d 512 (1991).
24
Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998),
citing Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387
N.W.2d 486 (1986).
25
Morgan v. Mysore, 17 Neb. Ct. App. 17, 756 N.W.2d 290 (2008).
26
Id. at 26, 756 N.W.2d at 298.
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that [he] was not required to be aware of all the medi-
cal information.”27
[11] Based on our longstanding precedent on vicarious
liability and the nondelegable duty exception, we agree that
a nondelegable duty instruction is not appropriate when there
are no judicial admissions or evidence that a defendant had
assigned the performance of his duties to a subordinate party
at the time that the alleged breach occurred.
Here, the court declined to include the following nondel-
egable duty language requested by Rodriguez in jury instruc-
tion No. 2: “[T]he Court has determined as a matter of law
that the obligation to return the plaintiff to surgery on the
18th or the 19th, . . . if any, . . . was that of Defendant Greg
Fitzke, M.D.”
There were no judicial admissions or evidence that Fitzke
had assigned his duty to diagnose or treat Rodriguez to a
subordinate on April 18 or 19, 2012. Further, Fitzke, and
experts on both sides, testified that, as Rodriguez’ attending
surgeon, it was ultimately his decision whether or not to return
Rodriguez to surgery on April 18 or 19 and that no other doctor
could force Fitzke to return her to surgery. Therefore, assum-
ing, without deciding, that Fitzke had a nondelegable duty
to diagnose and treat Rodriguez by returning her to surgery,
the evidence did not support a nondelegable duty instruction.
Consequently, the court did not abuse its discretion in rejecting
the instruction.
Rodriguez’ argument that she was prejudiced by the potential
for jurors to find other parties negligent without this instruc-
tion and reference to the jury’s question regarding Duch’s note
are unavailing. First, as discussed above, the negligence of
another party was irrelevant, absent evidence that Fitzke had
delegated his duty to diagnose or treat Rodriguez to another
party. Second, while there was evidence adduced regarding
the negligence of other doctors and nurses and Fitzke testified
27
Id.
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that another surgeon could have returned Rodriguez to surgery
if her condition necessitated it, a different instruction by the
court informed the jury that the negligence of other parties was
no defense to finding Fitzke liable for Rodriguez’ entire injury
if he was also negligent.
(b) Rodriguez Cannot Show Prejudice From
Court’s Denial of Her Preexisting
Condition Instructions
Rodriguez requested two alternative instructions on preexist-
ing conditions. Initially, she contends that there was evidence
that she had a preexisting condition consisting of a necrotic
gallbladder prior to April 17, 2012. In the alternative, she con-
tends that there is evidence that beginning April 16, she had a
preexisting condition of a perforated bowel resulting from her
surgery on that date, which perforation continued until April
20, when it was repaired. She argues that both her instruc-
tions are correct statements of the law and are supported by
the evidence adduced at trial. Additionally, she asserts that she
was prejudiced by the jury’s not knowing that it could rule in
her favor even if her damages could not be separated from the
injuries resulting from her preexisting conditions.
Appellees contend that Rodriguez was not prejudiced by
the court’s rejection of her instructions, because the instruc-
tions concern only the apportionment of damages and, by
entering a general verdict, the jury never reached the issue
of damages.
Rodriguez requested the following instruction, which is par-
tially based on NJI2d Civ. 4.09:
There is evidence that the Plaintiff had a pre-existing
condition consisting of a necrotic gallbladder prior to
April 17, 2012. The Defendants are only liable for any
damages that you find to be proximately caused by the
Defendants’ medical negligence.
If you cannot separate damages caused by the pre-
existing conditions from those caused by the medical
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negligence, then the Defendants are liable for all of
those damages.
The Defendants may be liable for harm to the Plaintiff
even though her ultimate injury is greater than usual
due to the pre-existing gallbladder condition which pre-
disposed her to at least some minimal post-operative
care. In short, the Defendants take the Plaintiff as they
find her.
In the alternative, Rodriguez requested the following
instruction:
There is evidence that beginning April 16, 2012,
Plaintiff had a perforated bowel resulting from her April
16, 2012 surgery, which perforation continued until April
20, 2012 when it was repaired. Plaintiff claims it was
not timely repaired and Defendant is only liable for any
damages that you find to be proximately caused by the
delay. If you cannot separate damages caused by the pre-
existing perforation from those caused by the delay, then
Defendant is liable for all of those damages.
[12] In David v. DeLeon,28 we held that a preexisting con-
dition jury instruction, which was similar to the first two
paragraphs of Rodriguez’ initial instruction, did not permit a
jury to assess damages in any amount unless the plaintiff first
proved proximate cause.
In Golnick v. Callender,29 we considered whether the court
committed error in giving a preexisting condition jury instruc-
tion similar to the first two paragraphs of Rodriguez’ initial
instruction but omitting the third paragraph, which was similar
to the third paragraph of Rodriguez’ instruction. We held that
the plaintiff was not prejudiced because, unlike cases where
we approved all three paragraphs, the jury had returned a gen-
eral verdict.
28
David v. DeLeon, 250 Neb. 109, 547 N.W.2d 726 (1996).
29
Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).
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[13] We stated that “[w]hen the jury returns a general verdict
for one party, we presume that the jury found for the success-
ful party on all issues raised by that party and presented to the
jury.”30 Accordingly, we interpreted the verdict as finding that
the plaintiff failed to prove that the defendant was the proxi-
mate cause of the plaintiff’s injuries.
Here, the jury also returned a general verdict. Accordingly,
we presume that the jury found for appellees on all issues
presented to it. Because the jury presumably decided that
Fitzke was not negligent or the proximate cause of Rodriguez’
injuries, the jury never reached the issues of preexisting con-
ditions or damages. Accordingly, this assignment of error is
without merit.
2. R ecord on A ppeal Is Insufficient to R eview
Whether Trial Court Erred in Permitting
Taddeucci to A nswer Certain Questions
Rodriguez contends that Taddeucci should not have been
allowed to provide standard of care opinions regarding Fitzke’s
postoperative care, because appellees did not disclose in dis-
covery that Taddeucci would provide such opinions. She argues
that appellees violated Neb. Ct. R. Disc. § 6-326(e)(1)(B) by
not supplementing their interrogatory to disclose that Taddeucci
would testify regarding postoperative care. She argues that the
appropriate sanction was to preclude Taddeucci from testifying
about Rodriguez’ postoperative care.
Appellees contend that they did not violate § 6-326(e)(1)(B),
because Rodriguez called Taddeucci in her case in chief and
questioned him extensively regarding Fitzke’s postoperative
care. Accordingly, they assert that she opened the door to
cross-examination on the subject and that the question and
answer Rodriguez identified did not call for or elicit a standard
of care opinion.
30
Id. at 410, 860 N.W.2d at 193-94.
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The Nebraska Court Rules of Discovery in Civil Cases pro-
vide, in relevant part, the following:
[Rule 26]
§ 6-326. General provisions governing discovery.
....
(b) Scope of Discovery. Unless otherwise limited by
order of the court in accordance with these rules, the
scope of discovery is as follows:
....
(4) Trial Preparation: . . . .
(A)(i) A party may through interrogatories require any
other party to identify each person whom the other party
expects to call as an expert witness at trial, to state the
subject matter on which the expert is expected to testify,
and to state the substance of the facts and opinions to
which the expert is expected to testify and a summary of
the grounds for each opinion.
....
(e) Supplementation of Responses. A party who has
responded to a request for discovery with a response that
was complete when made is under no duty to supple-
ment his or her response to include information thereafter
acquired, except as follows:
(1) A party is under a duty seasonably to supplement
his or her response with respect to any question directly
addressed to
....
(B) the identity of each person expected to be called as
an expert witness at trial, the subject matter on which he
or she is expected to testify, and the substance of his or
her testimony.31
[Rule 33]
§ 6-333. Interrogatories to parties.
(a) Availability; Procedures for Use. . . .
31
§ 6-326.
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Each interrogatory shall be repeated and answered
separately and fully in writing under oath . . . . The party
submitting the interrogatories may move for an order
under [§ 6-3]37(a) with respect to any objection to or
other failure to answer an interrogatory.32
[Rule 37]
§ 6-337. Failure to make discovery: sanctions.
....
(d) Failure of Party to Attend at Own Deposition or
Serve Answers to Interrogatories or Respond to Request
for Inspection. If a party . . . fails
....
(2) To serve answers or objections to interrogatories
submitted under [§ 6-3]33, after proper service of the
interrogatories . . . .
(3) . . . the court in which the action is pending on
motion may make such orders in regard to the failure as
are just, and among others it may take any action autho-
rized under paragraphs (A), (B), and (C) of subdivision
(b)(2) of this rule.
....
The failure to act described in this subdivision may
not be excused on the ground that the discovery sought
is objectionable unless the party failing to act has applied
for a protective order as provided by [§ 6-3]26(c).33
Further, a sanction authorized by § 6-337(b)(2)(B) is “[a]n
order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him or
her from introducing designated matters in evidence.”
Appellees’ answers to Rodriguez’ interrogatories and desig-
nation of experts included the following:
Interrogatory No. 17: Identify each expert witness
whom you intend to call to testify at trial in this action
and state for each such expert:
32
Neb. Ct. R. Disc. § 6-333.
33
Neb. Ct. R. Disc. § 6-337.
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(a) The subject matter on which the expert is expected
to testify;
(b) The substance of facts and opinions on which the
expert is expected to testify;
(c) The basis for each opinion to be given by the
expert . . . .
....
Supplemental Answer:
....
5a. Raymond Taddeucci . . . [;]
b. Dr. Taddeucci is expected to express the opinions
set forth in his deposition taken by [Rodriguez;]
c. The operative technique of Dr. Fitzke complied with
reasonable standards of care[;]
d. The basis is expected to be set forth in the deposition
of Dr. Taddeucci taken by [Rodriguez] and information
set forth in the medical records.
In Rodriguez’ opening brief, she identified the following
question as erroneously permitted, over objection, by the court:
“Q. Now, based upon the — looking at this without the
hindsight of knowing there turned out to be an intestinal
perforation, looking at this from the standpoint of what
was known to the physicians attending . . . Rodriguez
throughout the period that we’ve talked about here today,
was there ever a point where in your opinion the patient
was required to be taken back to surgery?”34
In Rodriguez’ reply brief, she also argued that she was preju-
diced by Taddeucci’s being permitted to respond, over objec-
tion, to the following question: “‘With regards to the decision
of . . . Fitzke to cancel the CT scan, do you believe that com-
plied with the appropriate standards of care?’”35
[14] We begin by noting that the purpose of an appel-
lant’s reply brief is to respond to the arguments the appellee
34
Brief for appellant at 23.
35
Reply brief for appellant at 9.
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has advanced against the errors assigned in the appellant’s
initial brief.36 While this second question is encompassed in
Rodriguez’ assignment of error, her attempt to raise it for the
first time in her reply brief is untimely, because it gave appel-
lees no opportunity to respond.37
[15] Further, it is incumbent upon the appellant to present a
record supporting the errors assigned; absent such a record, an
appellate court will affirm the lower court’s decision regarding
those errors.38
The question Rodriguez bases her claim on concerns the
postoperative care provided to Rodriguez by Fitzke. Regarding
Rodriguez’ interrogatory requesting appellees to identify the
scope of opinions that Taddeucci would provide, appellees
stated that he would provide opinions regarding Fitzke’s opera-
tive technique and “the opinions set forth in his deposition
taken by [Rodriguez].”
Rodriguez’ deposition of Taddeucci is not included in the
record. Accordingly, we do not know whether the subject of
Fitzke’s postoperative care was discussed in the deposition.
Therefore, we are unable to assess whether appellees failed to
comply with § 6-326, because we cannot determine the scope
of Taddeucci’s expected testimony that was actually disclosed
in the interrogatory. Because Rodriguez failed to satisfy her
duty to present a record that supported her assignment of error,
we affirm the court’s ruling on this issue.
3. Fitzke’s Testimony Was Permitted Under
Nebraska Rules of Evidence
Rodriguez argues that, in response to one of her questions,
Fitzke provided a nonresponsive, hearsay answer that stated
the opinion of Allen, who was not designated as an expert.
She again contends that appellees violated § 6-326 by failing
36
Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017).
37
Id.
38
In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
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to disclose Allen as an expert, her opinion, and the relevant
foundation for her opinion. Rodriguez further contends that
classifying the testimony as Fitzke’s perception is merely pre-
text to admit Allen’s testimony.
Appellees argue that Fitzke did not provide Allen’s opinion.
Instead, they contend that he stated only his perception of
her opinion, which said nothing about the truth of his belief.
Further, they assert that the answer was directly responsive
to Rodriguez’ line of questioning and that precise question
because it was asking if he disregarded her opinion.
Rodriguez’ objection concerned Fitzke’s answer to the
final question from Rodriguez’ attorney in the following
interchange:
Q. Okay. And did Dr. Allen put at the bottom here,
question mark, “Need to go back to OR”?
A. She did write that, yes.
Q. So there is at least one question mark in this record
relative to your return — relative to the question of
whether you need to take her back to surgery; correct?
A. An internist questioned whether or not going back
to the operating room would be helpful.
Q. So this is the second time that an internist, mean-
ing a hospitalist, has had a suggestion about the care and
you’ve answered the question, no. We’ve heard about the
CAT scan and going back to the OR; correct?
A. No, that’s not correct. I canceled the CAT scan, and
there was a question as to — from Dr. Allen’s standpoint
as to whether we felt going back to the operating room
would be helpful at that point in time, and we had a dis-
cussion, and we or I decided — I ultimately decided that
she did not need to go back to the operating room, but
we discussed the factors that were in front of us, and I
believe that she agreed.
(Emphasis supplied.)
Hearsay is defined as “a statement, other than one made by
the declarant while testifying at the trial or hearing, offered
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in evidence to prove the truth of the matter asserted.”39
Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 2016),
provides:
If the witness is not testifying as an expert, his tes-
timony in the form of opinions or inferences is limited
to those opinions or inferences which are (a) rationally
based on the perception of the witness and (b) helpful to a
clear understanding of his testimony or the determination
of a fact in issue.
In his testimony, Fitzke did not relay any out-of-court
statements made by Allen, but merely described his percep-
tion of Allen’s opinion after speaking with her. Since Fitzke’s
statement was limited to his perception of Allen’s opinion, it
was permissible under § 27-701. Fitzke established that he
had firsthand knowledge of what Allen said in the discussion
and his belief as to her opinion on the topic was an inference
that was rationally based on the conversation of the subject.
Further, it cannot rationally be argued that the testimony was
not helpful to the determination of whether Fitzke breached
the standard of care by not returning Rodriguez to surgery
on April 19, 2012. The credibility of his opinion of her con-
clusion goes to the weight of the statement, rather than to
its admissibility.40
Accordingly, his statement was not hearsay and did not sup-
port a violation of § 6-326 by presenting an undisclosed opin-
ion of an undisclosed expert.
[16-18] Even if Fitzke’s answer was hearsay, Neb. Evid. R.
703, Neb. Rev. Stat. § 27-703 (Reissue 2016), provides that an
expert may rely on hearsay facts or data reasonably relied upon
by experts in that field.41 Specifically, a medical expert may
express opinion testimony in medical matters based, in part,
39
Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2016).
40
See Harmon Cable Communications v. Scope Cable Television, 237 Neb.
871, 468 N.W.2d 350 (1991).
41
State v. Hudson, 268 Neb. 151, 680 N.W.2d 603 (2004).
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on reports or statements of others which are not in evidence
but upon which the expert customarily relies in the practice
of his or her profession.42 While the mere fact that an expert
relied on hearsay, however, does not transform it from inadmis-
sible into admissible evidence,43 we have permitted inadmis-
sible evidence, upon which an expert relies, to be admitted on
direct examination if it was offered not to prove the truth of
the matter asserted but simply to demonstrate the basis for the
expert’s testimony.44
Fitzke was disclosed as an expert who would testify regard-
ing whether he “applied the degree of skill and knowledge
expected of a reasonable and prudent general surgeon . . .
managing . . . a patient post-operatively.” To the extent that
his answer was addressing whether he exercised an appropri-
ate degree of skill and knowledge in caring for Rodriguez
postoperatively, Fitzke’s statement regarding his understand-
ing of Allen’s opinion was offered to show that he believed
he was not disregarding the opinion of another physician
involved in Rodriguez’ treatment; it was not offered to prove
that Allen did not believe that Rodriguez needed to be returned
to surgery. Further, as part of his statement, Fitzke provided
his independent opinion, which he reached, in part, based
on Allen’s opinion. The opinion of an internist involved
in the treatment of a postoperative patient is clearly a fact
relied upon by experts in the medical field. Accordingly, to
the extent that hearsay of Allen’s opinion was admitted into
evidence through Fitzke’s testimony, it was permitted, under
§ 27-703.
Fitzke’s answer was also responsive to the question by
Rodriguez’ attorney. Rodriguez’ attorney had asked whether
42
Id.
43
See Vacanti v. Master Electronics Corp., 245 Neb. 586, 514 N.W.2d 319
(1994).
44
See Koehler v. Farmers Alliance Mut. Ins. Co., 252 Neb. 712, 566 N.W.2d
750 (1997).
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Allen questioned whether Rodriguez needed to be returned
to the operating room. He then went on to directly ques-
tion whether Fitzke disregarded Allen’s opinion about whether
Rodriguez needed to be returned to the operating room.
Accordingly, Fitzke’s statement that he discussed the note
Allen made with her and believed that she changed her opinion
to agree with him was directly relevant to whether or not he
was disregarding her opinion. Accordingly, this assignment of
error is without merit.
V. CONCLUSION
We find that the court did not err in rejecting Rodriguez’
proposed jury instructions or jury instruction language. Further,
we find that the record on appeal is insufficient to review
whether the court erred in permitting Taddeucci to answer
certain questions. Finally, we conclude that the court did not
abuse its discretion by ruling Fitzke’s answer was admissible.
Therefore, we affirm.
A ffirmed.
Wright, J., not participating in the decision.