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negligencetrialverdicttestimonymalpracticejury instructions

verdictmalpractice

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Bank v. Mickels, 302 Neb. 1009, 926 N.W.2d 97

Facts

Carl Bank was referred to Dr. Mickels for a rotator cuff tear and underwent surgery in September 2012. After experiencing ongoing pain, he returned to Dr. Mickels, who performed an injection and manipulation procedure on November 20, 2012, without obtaining written informed consent. Following the procedure, Carl's condition worsened, leading to a diagnosis of a serious infection that required shoulder replacement surgery. The Banks alleged that Dr. Mickels' negligence caused the infection and subsequent permanent injury.

Carl's physician referred him to Dr. Mickels, an orthopedic surgeon, for a rotator cuff tear in August 2012.

Issue

Did Dr. Mickels fail to obtain informed consent and properly diagnose Carl's infection, constituting medical malpractice?

Rule

Informed consent does not require written documentation under Neb. Rev. Stat. § 44-2816, and the standard of care is determined by expert testimony regarding local practices.

Neb. Rev. Stat. § 44-2816 (Reissue 2010) does not require that informed consent be written.

Analysis

The court found that the expert testimony presented by Dr. Mickels established that he met the standard of care in the locality. The jury was instructed that written consent was not required, which was consistent with the law. The court also determined that the Banks did not demonstrate prejudice from the trial court's refusal to give their proposed jury instruction regarding preexisting conditions.

The court's jury instruction was a correct statement of the law and was warranted by the evidence.

Conclusion

The Supreme Court affirmed the jury's verdict in favor of Dr. Mickels, concluding that the evidence supported the finding that he met the standard of care and that the jury instructions were appropriate.

We affirm.

Who won?

Dr. Jason J. Mickels prevailed in the case because the jury found that he met the standard of care and that the Banks did not prove their claims of malpractice.

The jury returned a general verdict in favor of Mickels.

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