Apkan v. Life Care Centers of America

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/14/2018 12:08 AM CDT
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
APKAN v. LIFE CARE CENTERS OF AMERICA
Cite as 26 Neb. Ct. App. 154
David A pkan, Special A dministrator of the Estate
of Musa Gwelo, appellant, v. Life Care Centers
of A merica, I nc., and Consolidated R esources
Health Care Fund I, L.P., doing business as
Life Care Center at Elkhorn, appellees.
___ N.W.2d ___
Filed August 7, 2018. No. A-17-162.
1. Appeal and Error. In the absence of plain error, an appellate court con-
siders only claimed errors that are both assigned and discussed.
2. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose that there is no genuine
issue as to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to judgment
as a matter of law.
3. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment is granted and gives
that party the benefit of all reasonable inferences deducible from
the evidence.
4. Trial: Expert Witnesses: Appeal and Error. Generally, an appellate
court will reverse a trial court’s decision to receive or exclude the other-
wise relevant testimony of an expert only when there has been an abuse
of discretion.
5. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
6. Summary Judgment: Affidavits. Supporting affidavits in summary
judgment proceedings shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters
stated therein.
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APKAN v. LIFE CARE CENTERS OF AMERICA
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7. Malpractice: Health Care Providers: Statutes. Because of the statu-
tory difference between skilled nursing facilities and assisted living
facilities, they have differing standards of care.
8. Expert Witnesses. An expert’s opinion is ordinarily admissible if the
witness (1) qualifies as an expert, (2) has an opinion that will assist the
trier of fact, (3) states his or her opinion, and (4) is prepared to disclose
the basis of that opinion on cross-examination.
9. Negligence: Summary Judgment: Proof. For the court to grant sum-
mary judgment to the defendant in a negligence action, the defendant
need only prove that there is no issue of material fact as to one of the
elements such that the defendant is entitled to judgment as a matter
of law.
10. Expert Witnesses. When the character of an alleged injury is subjective
rather than objective, a plaintiff must establish the cause and extent of
the injury through expert medical testimony.
11. Negligence: Malpractice: Expert Witnesses. The common-knowledge
exception to the requirement for expert medical testimony applies where
the causal link between the defendant’s negligence and the plaintiff’s
injuries is sufficiently obvious to laypersons that a court can infer causa-
tion as a matter of law.
12. Negligence: Proof. To prevail in any negligence action, a plaintiff must
show a legal duty owed by the defendant to the plaintiff, a breach of
such duty, causation, and resulting damages.
13. Summary Judgment: Proof. The party moving for summary judgment
has the burden to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate that the moving party
is entitled to judgment as a matter of law.
14. ____: ____. A prima facie case for summary judgment is shown by pro-
ducing enough evidence to demonstrate that the movant is entitled to a
judgment in its favor if the evidence were uncontroverted at trial.
15. ____: ____. After the moving party has shown facts entitling it to a
judgment as a matter of law, the opposing party has the burden to pre­
sent evidence showing an issue of material fact that prevents judgment
for the moving party.
16. Trial: Evidence: Proximate Cause. Speculation and conjecture are not
sufficient to establish causation.
Appeal from the District Court for Douglas County: James T.
Gleason, Judge. Affirmed.
Richard F. Hitz, of Law Office of Rich Hitz, for appellant.
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APKAN v. LIFE CARE CENTERS OF AMERICA
Cite as 26 Neb. Ct. App. 154
Mark E. Novotny and Cathy S. Trent-Vilim, of Lamson,
Dugan & Murray, L.L.P., for appellees.
Moore, Chief Judge, and Pirtle and A rterburn, Judges.
Moore, Chief Judge.
I. INTRODUCTION
David Apkan, special administrator of the estate of Musa
Gwelo, brought an action against Life Care Centers of America,
Inc., and Consolidated Resources Health Care Fund I, L.P.,
doing business as Life Care Center at Elkhorn (collectively
Life Care), asserting Life Care’s negligence caused Gwelo pain
and suffering and led to her subsequent death. Apkan appeals
the order of the district court for Douglas County, which
granted summary judgment in favor of Life Care. On appeal,
Apkan challenges the district court’s admission of two affi-
davits over his objection. He further assigns the district court
erred in failing to apply the “common-knowledge exception”
to the requirement of expert testimony to prove causation. For
the reasons set forth below, we affirm.
II. BACKGROUND
Apkan filed a complaint on June 17, 2014. He alleged
that Gwelo was a resident of Life Care’s nursing home in
Elkhorn, Nebraska, from July 6 to 9, 2012, and that Life Care
breached its duty to care for Gwelo, resulting in Gwelo’s fall-
ing from her bed and suffering injury and in her subsequent
death on July 12. The complaint set forth a negligence claim
for Gwelo’s pain and suffering prior to her death and for her
wrongful death.
In its answer, Life Care admitted that Gwelo was its resi-
dent during the alleged time period, that it is skilled in the
per­formance of nursing, and that it is properly staffed and
licensed by the Department of Health and Human Services as
alleged in Apkan’s complaint. In all other respects, it denied
the allegations of Apkan’s complaint.
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APKAN v. LIFE CARE CENTERS OF AMERICA
Cite as 26 Neb. Ct. App. 154
Life Care filed a motion for summary judgment, alleging
that there were no genuine issues of material fact and that it
was entitled to judgment as a matter of law. On August 19,
2016, the court heard arguments on the summary judgment
motion. In support of its motion, Life Care offered the affida-
vits of Kirk Sweeney and Dr. Donald R. Frey, which the court
received into evidence over Apkan’s foundational objection.
Sweeney’s affidavit stated that he was the director of Life
Care’s Elkhorn facility at all times relevant to Apkan’s com-
plaint. His affidavit included the following statements: Life
Care admitted Gwelo on July 6, 2012, when she was trans-
ferred there from a hospital where she had been for sev-
eral weeks. Gwelo was admitted to Life Care with several
medical diagnoses, including multiple myeloma, bacteremia,
chronic pain, osteoporosis, thrombocytopenia, anemia, tachy-
cardia, and depressive disorder. Gwelo requested “Do Not
Resuscitate” status at the time of her admission and com-
pleted the appropriate forms. Around 5 p.m. on July 6, a nurse
checked on Gwelo, finding her on the floor on her left side
“in a fetal position.” Life Care was not aware of anyone who
witnessed how Gwelo got from her bed to the floor. On July
9, Gwelo was transported to a cancer center for treatment,
was readmitted to the hospital that day, and did not return to
Life Care. Gwelo died on July 12. Her death certificate lists
multiple myeloma as her immediate cause of death. A copy of
her “Do Not Resuscitate” form and her death certificate were
attached to Sweeney’s affidavit.
Dr. Frey’s affidavit and attached curriculum vitae stated
that he is a medical doctor specializing in family medicine in
Omaha, Nebraska. Frey outlined his educational background,
his board certification in family and geriatric medicine, and
his special qualifications in the area of geriatric medicine. Frey
practices at a medical center and a family healthcare facility.
He has written peer-reviewed and non-peer-reviewed articles
and books about family and geriatric medicine and has given
presentations and radio interviews on the same. Frey’s affidavit
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included the following statements: Frey has regularly seen and
cared for residents, like Gwelo, who reside in assisted living
facilities, like Life Care. Based on his education, training, and
experience, he is familiar with the generally recognized stan-
dard of care for assisted living facilities and healthcare provid-
ers working in assisted living facilities. He reviewed Apkan’s
complaint and “hundreds, if not more than a thousand,” pages
of medical records related to Gwelo’s medical condition and
treatment prior to her death.
Gwelo was 51 years old at the time of her death. Her offi-
cial cause of death was multiple myeloma, a cancer of the
blood, with which she was first diagnosed in October 2004.
When the hospital discharged Gwelo to Life Care, her medical
providers recommended she either be placed in hospice care
or be moved to a nursing home. In addition to her multiple
myeloma, Gwelo was being treated for a sepsis infection of
her “port (used to provide chemotherapy treatments).” She
also suffered from pancytopenia, secondary to her multiple
myeloma, which required frequent blood transfusions; acute
respiratory failure; congestive heart failure; hypokalemia (low
potassium); malnutrition; headaches; and various other medi-
cal conditions. At the time of her admission to Life Care,
Gwelo’s prognosis was poor and she appeared extremely
weak. Gwelo had no history of falls prior to her admission to
Life Care.
In the early evening of July 6, 2012, only hours after her
admission to Life Care, a nurse found Gwelo “lying on the
floor in a fetal position.” But no one reported observing or
witnessing how she got from her bed to the floor. The records
from Life Care reflect that its staff followed all appropriate
precautions regarding falls. In addition, based on a review of
the records, “little evidence” suggests Gwelo actually fell out
of her bed, other than the allegations in Apkan’s complaint.
Gwelo suffered from low platelets, which posed a risk of her
passing out and falling. Although the hospital noted some
bleeding on Gwelo’s brain on July 9, her low platelets may
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have caused a spontaneous bleed. Based on Dr. Frey’s review
of the evidence and information in the case, his credentials,
and his knowledge of the applicable standard of care, he
opined to a reasonable degree of medical certainty that Life
Care at all times met the applicable standard of care and that
the alleged actions or inactions of Life Care did not cause
Gwelo’s death, alleged damages, or both.
In response to Life Care’s motion, Apkan submitted his
own affidavit, which the court received into evidence. Apkan
stated he was Gwelo’s longtime companion for over 12 years.
At 11:48 p.m. on July 6, 2012, a staff member at Life Care
contacted him, saying Gwelo had fallen to the floor. The staff
member explained that Gwelo was examined after the fall,
returned to her bed, and would be monitored for the rest of
the night. Apkan immediately drove to Life Care in Elkhorn.
When he arrived at Gwelo’s room, he found her lying on the
floor, motionless, in a soiled nightgown. Apkan looked for
help but could find no staff members in the hallway or near
Gwelo’s room. Apkan lifted Gwelo and placed her on her bed,
noticing the bed linens were also soiled with feces and urine.
Apkan alerted Life Care’s staff to her situation. He returned to
Gwelo’s room where he waited 30 minutes for a staff mem-
ber to check on her. The staff member told Apkan that Gwelo
was “‘all right,’” and Apkan left when he felt Gwelo was safe
and asleep.
Apkan returned to Life Care each day until Gwelo left the
facility on July 9, 2012. Apkan did not recall nursing staff
conducting any medical tests or evaluating Gwelo’s think-
ing or neurological status while he was visiting. During his
visits, Gwelo complained of a severe headache, which Life
Care’s staff acknowledged. They occasionally provided her
with pain medication. Apkan was not aware of whether Life
Care informed Gwelo’s physician of her falls or her subse-
quent headache complaints. Gwelo had an outpatient appoint-
ment on July 9. Upon Gwelo’s arrival at the clinic, the nursing
staff concluded her condition was not stable, and she was
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transferred to a hospital emergency room. At the emergency
room, Apkan informed the doctors of Gwelo’s falls and head-
aches. The hospital staff informed him that Gwelo suffered
from two subdural hematomas on her brain that were actively
bleeding and could not be surgically treated due to her platelet
deficiency. Due to the hematomas, her cancer treatments were
suspended, and she died on July 12.
The court granted the parties leave to submit briefs and took
the matter under advisement. On January 11, 2017, the court
entered an order on Life Care’s motion for summary judgment.
The court found that Dr. Frey’s affidavit established that Life
Care met the applicable standard of care. The court noted,
“Implicit in this is the determination that if the actions of [Life
Care] in treating [Gwelo] comported with the applicable stan-
dard of care, the actions of [Life Care] could not have been a
proximate cause of any damage suffered by [Gwelo].” Because
Apkan failed to provide contrary evidence on the issue of cau-
sation, the court granted Life Care’s motion for summary judg-
ment. The court further found that Apkan could not proceed
under the common-knowledge exception to the requirement
for expert testimony to prove causation because the evidence
did not support a determination that Life Care’s conduct was
extreme and obvious misconduct. Apkan appeals.
III. ASSIGNMENTS OF ERROR
Apkan assigns, restated, that the district court erred in (1)
overruling his objections to Life Care’s affidavits in support
of summary judgment, (2) finding that Dr. Frey’s affidavit
provided evidence that Life Care met the applicable standard
of care, (3) finding that the common-knowledge exception
did not apply, and (4) entering summary judgment in favor of
Life Care.
[1] As addressed by Life Care in its appellate brief, Apkan
does not specifically argue his assignment of error regarding
Sweeney’s affidavit. In the absence of plain error, an appellate
court considers only claimed errors that are both assigned and
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discussed. Salem Grain Co. v. Consolidated Grain & Barge
Co., 297 Neb. 682, 900 N.W.2d 909 (2017).
IV. STANDARD OF REVIEW
[2,3] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose that there is no gen-
uine issue as to any material fact or as to the ultimate infer-
ences that may be drawn from those facts and that the mov-
ing party is entitled to judgment as a matter of law. Oldfield
v. Nebraska Machinery Co., 296 Neb. 469, 894 N.W.2d
278 (2017). In reviewing a summary judgment, an appellate
court views the evidence in the light most favorable to the
party against whom the judgment is granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence. Walters v. Sporer, 298 Neb. 536, 905 N.W.2d
70 (2017).
[4,5] Generally, an appellate court will reverse a trial court’s
decision to receive or exclude the otherwise relevant testimony
of an expert only when there has been an abuse of discre-
tion. See Cohan v. Medical Imaging Consultants, 297 Neb.
111, 900 N.W.2d 732 (2017). An abuse of discretion occurs
when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. ACI Worldwide
Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d
156 (2017).
V. ANALYSIS
In essence, Apkan’s appeal assigns that because the court
erred in admitting the affidavits of Sweeney and Dr. Frey, it
also erred in granting Life Care’s motion for summary judg-
ment. As discussed below, the district court properly admit-
ted both affidavits into evidence. While Dr. Frey’s expert
opinion applied the incorrect standard of care, he also found
Life Care’s action or inaction did not cause Gwelo’s death
or damages. As a result, we find that Life Care has made a
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prima facie case for summary judgment to which Apkan did
not respond with contradictory evidence. More, the cause of
Gwelo’s death was not obvious to the layperson such that
Apkan did not need to support his allegations with expert
testimony. Therefore, we affirm the decision of the dis-
trict court.
1. A ffidavit of Sweeney
[6] Apkan assigns as error, but does not argue, that the dis-
trict court erred in admitting Sweeney’s affidavit into evidence.
Therefore, we review the court’s decision for plain error. See
Salem Grain Co. v. Consolidated Grain & Barge Co., supra.
Under Neb. Rev. Stat. § 25-1334 (Reissue 2016), supporting
affidavits in summary judgment proceedings shall be made
on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein. See
Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d
589 (2012).
Life Care submitted Sweeney’s affidavit, which stated that
he was the director of the Life Care’s Elkhorn facility and that
his affidavit was based on his personal knowledge. On our
review for plain error, we find Sweeney had sufficient personal
knowledge, his affidavit set forth facts that would be admis-
sible in evidence, and he was competent to testify to the mat-
ters stated in his affidavit. The district court did not abuse its
discretion in entering it into evidence.
2. A ffidavit of Dr. Frey
Apkan assigns that the district court erred in admitting Dr.
Frey’s affidavit into evidence. He argues that Dr. Frey’s affi-
davit does not apply the appropriate standard of care in deter-
mining whether Life Care was negligent, because his affidavit
applies the standard of care for “assisted living facilit[ies]”
while the parties agreed that Life Care is a “skilled nursing
facility.” Apkan argues that because assisted living facilities
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and skilled nursing facilities require a different standard of
care, Dr. Frey’s opinion as to whether Life Care’s conduct met
the required standard of care is irrelevant. In response, Life
Care argues that Dr. Frey’s references to the standard of care
for assisted living facilities was a scrivener’s error that did
not affect the standard of care he applied. An examination of
the statutory differences between skilled nursing facilities and
assisted living facilities is useful to our determination of the
appropriate standard of care in this case.
(a) Standards of Care
Under Nebraska law, skilled nursing facilities provide a
higher level of care than assisted living facilities. Neb. Rev.
Stat. § 71-429 (Reissue 2009) defines a skilled nursing facil-
ity as “a facility where medical care, skilled nursing care,
rehabilitation, or related services and associated treatment are
provided for a period of more than twenty-four consecutive
hours to persons residing at such facility who are ill, injured,
or disabled.” The Nebraska Nursing Home Act regulates these
facilities. See Neb. Rev. Stat. §§ 71-6008 to 71-6037 (Reissue
2009). With some exceptions, skilled nursing facilities must
maintain a licensed registered nurse for at least 8 consecutive
hours every day and must always have a licensed registered
nurse or licensed practical nurse on duty. § 71-6018.01(1).
The Nebraska Nursing Home Act does not place restrictions
on the types of patients a skilled nursing facility may admit
based on their needs.
By contrast, Neb. Rev. Stat. § 71-5904 (Reissue 2009),
at the time relevant to this appeal, intended assisted living
facilities to promote “resident self-direction and participation
in decisions which emphasize independence, individuality,
privacy, dignity, and residential surroundings.” According to
Neb. Rev. Stat. § 71-5905 (Reissue 2009), assisted living
facilities are unable to admit certain patients based on the
level of care they require and, at the time relevant to this
appeal, provided:
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(1) An assisted-living facility shall not admit or retain a
resident who requires complex nursing interventions or
whose condition is not stable or predictable unless:
....
(b) The resident or his or her authorized represent­
ative agrees to arrange for the care of the resident
through appropriate private duty personnel, a licensed
home health agency, or a licensed hospice[.]
[7] Based on the statutory differences between skilled nurs-
ing facilities and assisted living facilities, we conclude they
have differing standards of care. Dr. Frey applied the standard
of care for assisted living facilities rather than the standard of
care for skilled nursing facilities such as Life Care. We can-
not dismiss Dr. Frey’s assessment of Life Care based on the
standard of care applicable to assisted living facilities as a
mere scrivener’s error. Even if, as Life Care alleges, Dr. Frey’s
curriculum vitae demonstrates that he was qualified to provide
an expert opinion as to the standard of care for skilled nursing
facilities, his failure to explicitly do so makes his opinion as
to whether Life Care met the applicable standard of care irrel-
evant. See Green v. Box Butte General Hosp., 284 Neb. 243,
818 N.W.2d 589 (2012).
But Dr. Frey also opined in his affidavit that the alleged
actions or inactions of Life Care did not cause Gwelo’s death
or alleged damages. We find the district court properly admit-
ted the portions of the affidavit describing the element of cau-
sation, which we discuss below.
(b) Causation
Regardless of the relevance of Dr. Frey’s affidavit as to the
standard of care, it provides uncontroverted evidence that Life
Care’s actions or inactions did not cause Gwelo’s death or
alleged damages. Because Dr. Frey’s affidavit and curriculum
vitae establish his credentials to evaluate cause of injuries and
death, we find the district court did not err in finding sufficient
foundation for the affidavit under § 25-1334 and admitting it
into evidence.
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[8] An expert’s opinion is ordinarily admissible under Neb.
Rev. Stat. § 27-702 (Reissue 2016) if the witness (1) qualifies
as an expert, (2) has an opinion that will assist the trier of fact,
(3) states his or her opinion, and (4) is prepared to disclose
the basis of that opinion on cross-examination. ACI Worldwide
Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 N.W.2d
156 (2017). Dr. Frey’s affidavit clearly establishes his creden-
tials that qualify him as an expert. In it, Dr. Frey stated his
opinion about the cause of Gwelo’s death and damages and set
forth the basis for that opinion.
Apkan insists the district court should have disregarded
Dr. Frey’s entire expert opinion based on his application of
the inappropriate standard of care. He bases this argument
on Green v. Box Butte General Hosp., supra. In Green, a
rural hospital admitted a paraplegic patient who, during his
unassisted attempt to move from his wheelchair to a shower
chair, fell and injured his left shoulder. The patient filed suit
against the hospital, alleging that the hospital’s negligence
caused his left shoulder injury. A professor of nursing gave
deposition testimony in which she opined that the hospital
violated the standard of care in its treatment of the patient.
But she did not claim to be familiar with the standard of care
for rural hospitals. The patient moved for partial summary
judgment on the issues of negligence and causation, which
the district court granted. On appeal, the Nebraska Supreme
Court found the district court erred in granting the patient’s
motion of summary judgment because the professor did not
testify about the standard of care applicable to nurses in rural
hospitals. Id.
The present case is distinguishable from Green. Although
Dr. Frey did not provide the appropriate standard of care, he
did provide an opinion about the cause of Gwelo’s death and
damages. Based on the credentials listed in Dr. Frey’s curricu-
lum vitae, the district court found he was qualified to provide
expert testimony about causation. Although Apkan provided
sufficient foundational reasons to disregard Dr. Frey’s opinion
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about whether Life Care met the applicable standard of care,
he provides no reason to disregard the contents of the remain-
der of Dr. Frey’s affidavit regarding causation.
[9] Further in Green, the plaintiff filed the motion for sum-
mary judgment. For the court to grant his motion, he was
required to prove all elements of a negligence case: a legal
duty owed by the defendant to the plaintiff, a breach of such
duty, causation, and resulting damages. See id. Here, the
defendant, Life Care, moved for summary judgment. For the
court to grant summary judgment to the defendant in a neg-
ligence action, the defendant need only prove that there is
no issue of material fact as to one of the elements such that
the defendant is entitled to judgment as a matter of law. See,
e.g., McReynolds v. RIU Resorts and Hotels, 293 Neb. 345,
880 N.W.2d 43 (2016) (finding hotel guest’s negligence claim
precluded due to absence of hotel’s duty to guest); Latzel v.
Bartek, 288 Neb. 1, 846 N.W.2d 153 (2014) (finding summary
judgment in favor of defendant was appropriate because inter-
vening cause eliminated element of causation from plaintiff’s
negligence action).
Dr. Frey’s affidavit and attached curriculum vitae establish
that he is qualified to assess the cause of Gwelo’s alleged
damages (i.e., her alleged pain and suffering) and subsequent
death. We find, therefore, that the district court did not abuse
its discretion in admitting Dr. Frey’s affidavit into evidence at
the hearing on Life Care’s motion for summary judgment.
3. Common-K nowledge Exception
Does Not A pply
[10,11] Apkan assigns that the district court erred in finding
Life Care’s negligence was not so palpable that a layperson
could recognize it without expert proof. When the character of
an alleged injury is subjective rather than objective, a plaintiff
must establish the cause and extent of the injury through expert
medical testimony. Lewison v. Renner, 298 Neb. 654, 905
N.W.2d 540 (2018). But the common-knowledge exception,
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which stems from the doctrine of res ipsa loquitur, applies
where the causal link between the defendant’s negligence
and the plaintiff’s injuries is sufficiently obvious to layper-
sons that a court can infer causation as a matter of law. See,
Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d
898 (2008); Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d
354 (2004).
After our review of the record, we find the district court
did not abuse its discretion in finding that the common-­
knowledge exception does not apply. Gwelo suffered from
multiple myeloma for 8 years prior to her stay in Life Care’s
facilities. The record shows that the disease had taken a dra-
matic toll on her well-being at the time Life Care admitted
her, and by all accounts, she was nearing the end of her life.
As Dr. Frey’s affidavit outlined, Gwelo arrived at Life Care
with many different health problems. No witnesses could
identify how Gwelo came to be found on the floor or to show
that she actually fell from her bed. Dr. Frey noted that Gwelo
suffered from low platelets, which may have caused the brain
bleed the hospital found after Gwelo left Life Care. Given this
evidence, the district court did not abuse its discretion in find-
ing that Life Care’s conduct did not obviously cause Gwelo’s
death or damages such that a layperson could identify it with-
out the assistance of expert testimony.
4. Summary Judgment
[12] Apkan assigns that the district court erred in grant-
ing Life Care’s motion for summary judgment. To prevail
in any negligence action, a plaintiff must show a legal duty
owed by the defendant to the plaintiff, a breach of such duty,
causation, and resulting damages. Lewison v. Renner, supra.
See, also, King v. Crowell Memorial Home, 261 Neb. 177,
622 N.W.2d 588 (2001) (affirming directed verdict for nurs-
ing home in negligence action where plaintiff provided no
evidence that any actions or inactions of nursing home caused
decedent’s death).
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APKAN v. LIFE CARE CENTERS OF AMERICA
Cite as 26 Neb. Ct. App. 154
[13-15] The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists
and must produce sufficient evidence to demonstrate that
the moving party is entitled to judgment as a matter of law.
Bernard v. McDowall, LLC, 298 Neb. 398, 904 N.W.2d 679
(2017). A prima facie case for summary judgment is shown
by producing enough evidence to demonstrate that the mov-
ant is entitled to a judgment in its favor if the evidence were
uncontroverted at trial. Id. After the moving party has shown
facts entitling it to a judgment as a matter of law, the oppos-
ing party has the burden to present evidence showing an issue
of material fact that prevents judgment for the moving party.
Midland Properties v. Wells Fargo, 296 Neb. 407, 893 N.W.2d
460 (2017).
Life Care, the party moving for summary judgment, pro-
vided sufficient evidence through the affidavits of Sweeney
and Dr. Frey to establish that Gwelo’s alleged injuries and
death were not caused by any actions or inactions on the
part of Life Care. Apkan adduced no evidence to support his
allegation that Gwelo actually fell while in Life Care or how
she came to be on the floor. And the record contained no
evidence that Gwelo suffered an actual injury while in the
Life Care facility. Apkan points to the subdural hematomas
noted at the hospital after Gwelo left the facility. But after
Dr. Frey’s review of Gwelo’s extensive medical records,
he found that the subdural hematomas noted at the hospital
could have resulted from a spontaneous bleed caused by her
low platelet count. Apkan did not adduce evidence to con-
tradict Dr. Frey’s findings or to establish what caused the
subdural hematomas.
Dr. Frey provided an expert medical opinion that Life Care’s
alleged actions or inactions did not cause Gwelo’s death or
alleged damages. Gwelo’s death certificate stated that her mul-
tiple myeloma was her immediate cause of death. Apkan did
not adduce evidence to contradict this cause of death.
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APKAN v. LIFE CARE CENTERS OF AMERICA
Cite as 26 Neb. Ct. App. 154
[16] Life Care sustained its burden to show that no genu-
ine issue of material fact existed as to causation. The bur-
den then shifted to Apkan to prove genuine issues of mate-
rial fact remained. Apkan failed to do so. Speculation and
conjecture are not sufficient to establish causation. King v.
Crowell, supra.
Without evidence that Life Care’s actions or inactions
caused Gwelo’s injuries and death, the district court could not
find Life Care liable in negligence for any resulting damages.
Although our analysis differs, in part, from that of the district
court in that we do not rely upon Dr. Frey’s opinion regarding
standard of care, we conclude the district court did not abuse
its discretion in granting Life Care’s motion for summary
judgment, because there is no genuine issue of fact regard-
ing causation.
VI. CONCLUSION
The district court did not err in admitting Sweeney’s affida-
vit or the affidavit of Dr. Frey as it relates to causation. Nor
did the district court err in finding that the common-knowledge
doctrine did not apply. We affirm the district court’s grant of
summary judgment in favor of Life Care, because the evidence
was unrebutted that the alleged actions or inactions of Life
Care did not cause Gwelo’s death or damages.
A ffirmed.