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Keywords

plaintiffdefendantnegligencetestimonysummary judgmentmalpractice

plaintiffnegligencetestimonysummary judgmentmalpractice

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Fossett v. Board of Regents of University of Nebraska, 258 Neb. 703, 605 N.W.2d 465

Facts

Melody M. Fossett was admitted to the University of Nebraska Medical Center for severe pain, where she underwent an ultrasound and an endoscopic retrograde cholangiopancreatography (ERCP) performed by Dr. Brand. During the ERCP, a false passage was created, leading to a perforation of the duodenum. Following this, Fossett had her gallbladder removed, during which a large amount of bilious fluid was found in her abdomen. Fossett contended that the fluid introduced bacteria into her abdominal cavity, resulting in multiple abscesses, prompting her to file a medical malpractice suit against the physicians involved.

On August 7, 1994, Fossett was admitted to the University of Nebraska Medical Center for severe pain on her right side and back, around the area of her ribs.

Issue

Did the statements made by the physicians create a genuine issue of material fact regarding their alleged negligence, thereby precluding summary judgment?

Rule

In a medical malpractice case, the plaintiff typically must prove the physician's negligence through expert testimony, unless the common knowledge exception applies, which allows laypersons to recognize negligence without expert input.

Ordinarily, in a medical malpractice case, the plaintiff must prove the physician's negligence by expert testimony.

Analysis

The court analyzed whether the statements made by Dr. Brand and Dr. Murayama constituted admissions that could negate the need for expert testimony. While Dr. Brand's statements suggested a failure to meet the standard of care, Dr. Murayama's comments did not provide sufficient insight into the standard of care required in the situation. The court concluded that Brand's admissions created a genuine issue of material fact, while Murayama's did not.

We agree with the district court that these statements are not sufficient to create an issue of fact as to Murayama.

Conclusion

The court affirmed the summary judgment in favor of Dr. Murayama and Dr. McCashland, but reversed the summary judgment for Dr. Brand, allowing Fossett's claims against him to proceed.

We therefore reverse with respect to Brand.

Who won?

The prevailing party was the defendants, Dr. McCashland and Dr. Murayama, as the court affirmed the summary judgment in their favor due to the lack of evidence of negligence.

The district court correctly entered summary judgment in favor of McCashland and Murayama.

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