Lauer v. Golden Living Center , 28 Neb. Ct. App. 729 ( 2020 )

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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729Betty Lou Lauer, appellant, v. Golden
Living Center - Hartington, appellee.
___ N.W.2d ___
Filed August 18, 2020. No. A-19-181.
1. Summary Judgment. Summary judgment is proper if the pleadings and
admissible evidence offered at the hearing show that there is no genuine
issue as to any material facts 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.
2. Summary Judgment: Proof. A party makes a prima facie case that it
is entitled to summary judgment by offering sufficient evidence that,
assuming the evidence went uncontested at trial, would entitle the party
to a favorable verdict.
3. ____: ____. If the moving party makes a prima facie case that it is
entitled to summary judgment, the burden then shifts to the nonmov-
ing party to produce admissible contradictory evidence which raises a
genuine issue of material fact. If it cannot, summary judgment should
be granted.
4. 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 was granted, giv-
ing that party the benefit of all reasonable inferences deducible from
the evidence.
5. ____: ____. In conducting a summary judgment review, an appellate
court is mindful of the fact that on questions of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
6. Malpractice: Physicians and Surgeons: Proof: Proximate Cause.
To establish a prima facie case of medical malpractice, a plaintiff must
show (1) the applicable standard of care, (2) that the defendant(s) devi-
ated from that standard of care, and (3) that this deviation was the proxi-
mate cause of the plaintiff’s harm.
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LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 7297. Physicians and Surgeons: Expert Witnesses: Proof. To establish the
customary standard of care in a particular case, expert testimony by a
qualified medical professional is normally required. Often, such testi-
mony is premised on the expert’s personal knowledge of, and familiarity
with, the customary practice among medical professionals in the same or
similar locality under like circumstances.
8. Summary Judgment: Malpractice: Physicians and Surgeons:
Affidavits: Proof. At the summary judgment stage, it is well settled
that self-supporting affidavits submitted by medical providers suffice
to make a prima facie case that the provider did not commit profes-
sional negligence.
9. Trial: Evidence. Where reasonable minds could draw different conclu-
sions from the facts presented, such presents a triable issue of material
fact and summary judgment is not appropriate.
10. Summary Judgment: Proof. On a motion for summary judgment, the
movant has the burden of producing evidence and demonstrating there
are no genuine issues of material fact.
Appeal from the District Court for Cedar County: Paul
J. Vaughan, Judge. Reversed and remanded for further
proceedings.
Christopher P. Welsh, of Welsh & Welsh, P.C., L.L.O., for
appellant.
Charles E. Wilbrand, Jeanelle R. Lust, and Sydney C. Aase,
of Knudsen, Berkheimer, Richardson & Endacott, L.L.P., for
appellee.
Pirtle, Riedmann, and Welch, Judges.
Pirtle, Judge.
INTRODUCTION
Betty Lou Lauer appeals from an order entered by the dis-
trict court for Cedar County granting summary judgment in
favor of Golden Living Center - Hartington (GL-Hartington).
We conclude the district court erred in granting summary judg-
ment in favor of GL-Hartington, and we reverse the court’s
order and remand the cause for further proceedings.
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729BACKGROUND
Lauer had knee replacement surgery on June 29, 2015.
Following the surgery, Lauer was transferred on July 2 to
GL-Hartington, a skilled nursing facility in Hartington,
Nebraska, where she remained until July 5. On July 3, Lauer’s
family informed the GL-Hartington nursing staff that Lauer
had increased confusion and was not her normal self. The
GL-Hartington nursing staff sent Lauer’s treating physician a
fax regarding Lauer’s cognition. On July 4, the GL-Hartington
nursing staff again contacted Lauer’s doctor with concerns
about a bowel movement. The doctor “prescribed Milk of
Magnesia and Dulcolax.” On July 5, the GL-Hartington nursing
staff noted further changes in Lauer’s mental status and again
notified the doctor. The doctor then called the GL-Hartington
facility and ordered Lauer transferred to a hospital in Yankton,
South Dakota. Lauer was admitted to the intensive care unit
for treatment of severe hyponatremia, hypokalemia, hypo­
chloremia, both metabolic and respiratory alkalosis, anemia,
and metabolic encephalopathy. Lauer remained in the hospital
for 2 weeks.
On January 4, 2017, Lauer filed a complaint against
GL-Hartington, alleging that it was negligent in her treatment
and care and that it did not use ordinary care under the cir-
cumstances. The complaint further alleged that as a direct and
proximate result of the negligence of GL-Hartington, Lauer
was seriously and permanently injured.
GL-Hartington filed its answer to the petition on March
15, 2017. On May 30, the matter was transferred from the
district court for Douglas County to the district court for
Cedar County. On August 22, GL-Hartington filed a motion
for summary judgment. At the time the motion for summary
judgment was filed, discovery had not yet begun in earnest. No
progression order had yet been filed nor had experts yet been
designated. The summary judgment was argued on December
18. GL-Hartington offered two exhibits: an affidavit of Amy
Dickes, the GL-Hartington director of nursing and interim
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729executive director, with attached medical records, and the affi-
davit of GL-Hartington’s attorney, with the attached responses
of Lauer to GL-Hartington’s requests for admission. Both
exhibits were received without objection.
During argument on the motion for summary judgment,
counsel for Lauer made clear to the court that of the five spe-
cific acts of negligence alleged in her complaint, Lauer was
proceeding only on her allegation that GL-Hartington failed
to use ordinary care under the circumstances in the treat-
ment of Lauer prior to her transfer to the hospital in Yankton
and that the facility failed to properly instruct and train its
employees. In support of her position, Lauer offered an affida-
vit from Sheryl Deaconson, a certified legal nurse consultant
and administrative nursing supervisor licensed in Minnesota,
Florida, and California. Deaconson identified specific instances
of GL-Hartington’s failure to “adhere to the acceptable stan-
dards of care” and concluded those failures “were the direct
and proximate cause of . . . Lauer’s damages.” The court
admitted Deaconson’s affidavit with the exception of a por-
tion of paragraph 10, because the court did not believe nurses
are qualified to offer direct and proximate causation opinions.
Following additional briefing, the matter was ripe for decision
on January 16, 2018.
Nearly a calendar year later, the district court granted
GL-Hartington’s motion for summary judgment on January 10,
2019. Lauer then filed a motion to alter or amend the judg-
ment, which was denied on February 14. No discovery or any
other trial readiness efforts were made between August 2017
and January 2019. Lauer’s notice of appeal was filed February
20, 2019.
ASSIGNMENTS OF ERROR
Lauer assigns three errors: (1) The district court erred as a
matter of law in holding her legal nursing consultant expert
did not state the applicable standard of care in her affidavit, (2)
the court improperly decided a factual issue instead of deter-
mining whether any issues of material fact existed, and (3)
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LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729the court improperly placed the burden on Lauer to produce
evidence that there was a genuine issue of material fact in dis-
pute as to proximate cause.
STANDARD OF REVIEW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no
genuine issue as to any material facts 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.
Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d
898 (2008).
[2,3] A party makes a prima facie case that it is entitled to
summary judgment by offering sufficient evidence that, assum-
ing the evidence went uncontested at trial, would entitle the
party to a favorable verdict. Id. If the moving party makes such
a case, the burden then shifts to the nonmoving party to pro-
duce admissible contradictory evidence which raises a genuine
issue of material fact. If it cannot, summary judgment should
be granted. Id.[4,5] In reviewing a summary judgment, we view the evi-
dence in the light most favorable to the party against whom
the judgment was granted, giving that party the benefit of
all reasonable inferences deducible from the evidence. Id. In
conducting our review, we are mindful of the fact that on ques-
tions of law, an appellate court is obligated to reach a conclu-
sion independent of the determination reached by the court
below. Id.ANALYSIS
Medical malpractice or professional negligence means that a
health care provider, in rendering professional services,
failed to use the ordinary and reasonable care, skill, and
knowledge ordinarily possessed and used under like cir-
cumstances by members of his profession engaged in a
similar practice in his or in similar localities. In determin-
ing what constitutes reasonable and ordinary care, skill,
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729and diligence on the part of a health care provider in a
particular community, the test shall be that which health
care providers, in the same community or in similar
communities and engaged in the same or similar lines of
work, would ordinarily exercise and devote to the benefit
of their patients under like circumstances.
Neb. Rev. Stat. § 44-2810 (Reissue 2010). A nursing home, a
skilled nursing facility, and a rehabilitation hospital are all con-
sidered “health care provider[s]” under Nebraska law. See Neb.
Reb. Stat. § 44-2803 (Reissue 2010). GL-Hartington is also
considered a hospital under Nebraska law, because it provides
nursing care on an inpatient basis for a period of more than 24
consecutive hours for persons receiving convalescent care. See
Neb. Rev. Stat. § 71-419 (Reissue 2018).
[6] To establish a prima facie case of medical malpractice,
a plaintiff must show (1) the applicable standard of care, (2)
that the defendant(s) deviated from that standard of care, and
(3) that this deviation was the proximate cause of the plain-
tiff’s harm. Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d
59 (2018).
Standard of Care.
[7] Lauer first assigns that the district court erred as a mat-
ter of law in finding that her expert witness did not state the
applicable standard of care in her affidavit. To establish the
customary standard of care in a particular case, expert testi-
mony by a qualified medical professional is normally required.
Id. Often, such testimony is premised on the expert’s personal
knowledge of, and familiarity with, the customary practice
among medical professionals in the same or similar locality
under like ­circumstances. Id.[8] GL-Hartington, as the party moving for summary judg-
ment, offered the affidavit of Dickes, the nursing director at
the facility, to show that it met the standard of care. Dickes
is a registered nurse, having received her license in 2008.
Dickes states all the nurses, medication assistants, and nursing
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729assistants followed the appropriate standard of nursing care
for charting progress, administering medications, notifying the
physician of progress, and monitoring the patient. At the sum-
mary judgment stage, it is well settled that self-supporting
affidavits submitted by medical providers suffice to make a
prima facie case that the provider did not commit professional
negligence. See Thone v. Regional West Med. Ctr., 275 Neb.
238, 745 N.W.2d 898 (2008). See, e.g. Wagner v. Pope, 247
Neb. 951, 531 N.W.2d 234 (1995).
The burden then shifted to Lauer, as the nonmoving party,
to produce admissible evidence which raised a genuine issue
of material fact in regard to the standard of care.
Lauer offered the affidavit of Deaconson to establish the stan-
dard of nursing care in the GL-Hartington facility was below
the standard of nursing care in similar communities. Deaconson
is a licensed registered nurse in several states, and she serves
as a legal nurse consultant and administrative nursing supervi-
sor in a large midwestern hospital system. Deaconson’s nursing
career spans 30 years. Deaconson stated in her affidavit that
she was familiar with the standard of care used in Hartington,
which is sufficient for summary judgment purposes.
Deaconson’s affidavit also identifies specific instances of
deviation from the standard of care by the GL-Hartington
nurses while Lauer was in their care. Deaconson opined that
the nurses failed to notify Lauer’s treating physician of mental
status changes during an admission assessment and of daily
deterioration of Lauer’s mental status during the time she was
in GL-Hartington. Deaconson’s review of the GL-Hartington
records reveals a 24-hour period where no documentation of
mental status was made. Further, she asserts that the nurses
failed to accurately document Lauer’s intake and output of flu-
ids and that there was no demonstrable effort made to follow
the admission recommendation to keep Lauer hydrated because
she had been prescribed multiple diuretic medications. And, the
medical records do not include any laboratory tests monitoring
electrolytes—potassium, sodium, and chloride.
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Nebraska Court of Appeals Advance Sheets
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LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729Dickes’ affidavit offered in support of GL-Hartington’s
motion for summary judgment says the nurses adhered to the
appropriate standard of care and did everything they were sup-
posed to do for Lauer while she was in their care. The evidence
Lauer offered in the form of Deaconson’s affidavit conflicts
with the evidence presented in Dickes’ affidavit and was suf-
ficient to rebut GL-Hartington’s evidence that the nursing staff
did not breach the standard of care. Since a genuine issue of
material fact existed as to whether GL-Hartington breached the
standard of care, summary judgment was not warranted.
Court Decided Factual Issues.
Lauer next argues the district court erred by actually deciding
factual disputes related to whether the nurses breached the stan-
dard of care. Paragraphs six and seven of Deaconson’s affidavit
identify specific shortcomings on the part of GL-Hartington’s
nurses, which she says amount to a breach of the standard of
care. After reviewing the medical notes attached to the affidavit
of Dickes, GL-Hartington’s nursing director, the district court
concluded that the nurses actually did the things Deaconson
says they did not do and that further, Deaconson failed to
establish what the nurses should have done instead.
[9] When faced with a motion for summary judgment, the
question for the court is not how to resolve a factual dis-
pute but whether a material fact is actually in dispute. The
Nebraska Supreme Court has said many times that where
reasonable minds could draw different conclusions from the
facts presented, such presents a triable issue of material fact
and summary judgment is not appropriate. Wynne v. Menard,
Inc., 299 Neb. 710, 910 N.W.2d 96 (2018). Here, we find that
once GL-Hartington established a prima facie case that its
staff did not breach the standard of care for this locale, Lauer
sufficiently rebutted that contention by producing admissible
contradictory evidence of GL-Hartington’s specific departures
from that standard of care, from which different conclusions
could be drawn by reasonable minds. Therefore, a genuine
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Nebraska Court of Appeals Advance Sheets
28 Nebraska Appellate Reports
LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729issue of material fact existed. The district court then erred by
attempting to resolve those issues of fact in connection with
the summary judgment proceeding.
Proximate Cause of Lauer’s Injuries.
Lauer next assigns that the district court improperly placed
the burden on her in regard to producing evidence of proximate
cause. The court excluded the portion of Deaconson’s affidavit
that concluded GL-Hartington’s failure to adhere to the stan-
dard of care was the direct and proximate cause of Lauer’s
injuries. Because the portion of the affidavit related to proxi-
mate cause was excluded, Lauer did not present any admissible
evidence regarding causation.
The court found that Lauer had the initial burden to show
there was evidence of causation and that she failed to present
any such evidence. The court further determined that because
Lauer failed to establish any evidence of causation, there was
no evidence GL-Hartington needed to rebut. The court con-
cluded that because Lauer had failed to produce evidence of
proximate cause, there was no genuine issue of material fact
and GL-Hartington was entitled to summary judgment even if
a standard of care issue existed.
[10] We conclude that the court improperly placed the ini-
tial burden on Lauer, rather than GL-Hartington, to produce
evidence in regard to causation. On a motion for summary
judgment, the movant, in this case GL-Hartington, has the
burden of producing evidence and demonstrating there are no
genuine issues of material fact. See Wolfe v. Becton Dickinson
& Co., 266 Neb. 53, 662 N.W.2d 599 (2003). GL-Hartington
had to produce evidence on proximate cause before the burden
shifted to Lauer. Because GL-Hartington did not present such
evidence, Lauer was under no duty to present proximate cause
evidence. In other words, GL-Hartington, as the moving party,
did not contest proximate cause so it was not necessary for
Lauer, the opposing party, to rebut it because the burden never
shifted. Therefore, the issue of causation remains a genuine
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Nebraska Court of Appeals Advance Sheets
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LAUER v. GOLDEN LIVING CENTER
Cite as 28 Neb. App. 729issue of material fact and should not have been resolved by
the court on summary judgment.
CONCLUSION
Finding the district court abused its discretion in granting
summary judgment in favor of GL-Hartington, we reverse the
order of the district court and remand the cause for further
proceedings.
Reversed and remanded for
further proceedings.