Evans v. Freedom Healthcare , 311 Neb. 336 ( 2022 )


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    www.nebraska.gov/apps-courts-epub/
    05/06/2022 09:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    311 Nebraska Reports
    EVANS v. FREEDOM HEALTHCARE
    Cite as 
    311 Neb. 336
    Warren Evans, appellant, v. Freedom
    Healthcare, LLC, appellee.
    ___ N.W.2d ___
    Filed April 8, 2022.     No. S-21-494.
    1. Summary Judgment: Appeal and Error. An appellate court affirms a
    lower court’s grant of summary judgment if the pleadings and admitted
    evidence show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts and that
    the moving party is entitled to judgment as a matter of law.
    2. ____: ____. 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 and gives that party the benefit of all reasonable
    inferences deducible from the evidence.
    3. 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.
    4. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. In
    medical malpractice cases, expert testimony by a medical professional is
    normally required to establish the standard of care and causation under
    the circumstances.
    5. Malpractice: Physicians and Surgeons: Summary Judgment: Expert
    Witnesses: Proof. Once the defendant medical provider in a malpractice
    case presents evidence that he or she has met the standard of care, the
    plaintiff must normally present expert testimony to show that a material
    issue of fact exists preventing summary judgment.
    6. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. In
    medical malpractice cases brought under the res ipsa loquitur doctrine,
    negligence may be inferred in three situations without affirmative proof:
    (1) when the act causing the injury is so palpably negligent that it may
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    EVANS v. FREEDOM HEALTHCARE
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    be inferred as a matter of law, i.e., leaving foreign objects, sponges, scis-
    sors, et cetera, in the body, or amputation of a wrong member; (2) when
    the general experience and observation of mankind teaches that the
    result would not be expected without negligence; and (3) when proof by
    experts in an esoteric field creates an inference that negligence caused
    the injuries.
    7. Negligence: Proof. There are three elements that must be met for res
    ipsa loquitur to apply: (1) The occurrence must be one which would not,
    in the ordinary course of things, happen in the absence of negligence;
    (2) the instrumentality which produces the occurrence must be under the
    exclusive control and management of the alleged wrongdoer; and (3)
    there must be an absence of explanation by the alleged wrongdoer.
    8. Summary Judgment: Negligence: Proof. At the summary judgment
    stage of litigation, when deciding whether res ipsa loquitur applies, a
    court must determine whether evidence exists from which reasonable
    persons can say that it is more likely than not that the three elements of
    res ipsa loquitur have been met. If such evidence is presented, then there
    exists an inference of negligence which presents a question of material
    fact, and summary judgment is improper.
    9. ____: ____: ____. In a summary judgment proceeding, the court should
    not weigh the evidence to determine whether res ipsa loquitur applies.
    Instead, the court must determine whether there is sufficient evidence
    from which reasonable persons could find that it is more likely than not
    that the three elements of res ipsa loquitur have been proved and that
    it is therefore more likely than not that there was negligence associated
    with the event.
    Appeal from the District Court for Lancaster County:
    Jodi L. Nelson, Judge. Reversed and remanded for further
    proceedings.
    Elizabeth A. Govaerts, of Powers Law, for appellant.
    Erin C. Duggan Pemberton and Andrew D. Wurdeman, of
    Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn,
    L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
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    EVANS v. FREEDOM HEALTHCARE
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    Miller-Lerman, J.
    I. NATURE OF CASE
    Warren Evans sued Freedom Healthcare, LLC, in the district
    court for Lancaster County for medical malpractice. The com-
    plaint alleged that Freedom Healthcare was negligent when it
    performed hemocyte tissue autograft therapy on Evans’ knees,
    causing a polymicrobic infection of Evans’ right knee which
    ultimately required extensive treatment and hospitalization.
    Because the district court found that Evans had failed to intro-
    duce expert testimony of medical professional negligence, it
    granted summary judgment in favor of Freedom Healthcare.
    Evans appeals. Because the record presents genuine issues of
    material fact which preclude summary judgment, we reverse
    the order of the district court and remand the cause for fur-
    ther proceedings.
    II. STATEMENT OF FACTS
    Freedom Healthcare in Lincoln, Nebraska, is a clinic that
    offers joint injection therapies to treat patients suffering from
    knee and joint pain. Freedom Healthcare claims that these joint
    injections help patients maintain their joints so they may post-
    pone or avoid more invasive procedures, such as knee replace-
    ment. Evans had a long history of severe osteoarthritis and
    knee pain, and he received injections of hyaluronic acid into
    his knee at Freedom Healthcare in 2017. On February 5, 2018,
    Evans returned to Freedom Healthcare for another set of injec-
    tions. He received hemocyte tissue autograft therapy, or “PRP,”
    a type of viscosupplementation using platelet-rich plasma. The
    purpose of the injection is to treat pain and inflammation.
    Tana Kenley, a physician assistant, performed the procedure.
    She drew blood from Evans, centrifuged the blood, prepared
    syringes, prepared Evans, and performed the injections. Evans
    recalled that his left knee was injected first, then his right,
    and that the same needle was used for both knees. Kenley
    testified that prior to an injection, she would sterilize the skin
    with chlorhexidine as a matter of course, and that she believed
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    she followed this procedure when she performed the injections
    on Evans. Kenley testified in her deposition that she used sepa-
    rate syringes for each knee.
    During the day following the injections, Evans began expe-
    riencing right knee pain, and it continued to worsen. He
    returned to Freedom Healthcare on February 9, 2018, where he
    was referred to an emergency room and admitted with severe
    septic infection in his right knee. The infection was polymicro-
    bial, meaning that more than one infectious agent was present.
    Evans underwent prolonged hospitalization and multiple sur-
    geries for his affected knee.
    Evans sued Freedom Healthcare for negligence. His com-
    plaint alleged that Freedom Healthcare acted negligently by
    (1) failing to properly supervise its employees, (2) failing to
    properly train its employees, (3) failing to take appropriate
    steps to ensure that its equipment was sterile, (4) failing to use
    proper sterile techniques, (5) failing to perform the procedure
    appropriately, (6) failing to monitor Evans’ condition, and (7)
    failing to provide immediate followup care. It also alleged
    that in the normal course of events, an infection of this type
    would not happen in the absence of negligence, and it claimed
    that Freedom Healthcare was liable under a theory of res
    ipsa loquitur.
    Freedom Healthcare moved for summary judgment. Evidence
    was received by the district court. Freedom Healthcare’s expert,
    Dr. David Brown, testified:
    [Y]ou can’t completely sterilize the skin. The risk of
    infection from a joint injection has been estimated to be
    anywhere between one in 3,000 to one in 50,000; it’s an
    uncommon problem.
    I, I don’t recall the last time I had an infection from a
    joint. It’s just despite that, a study out of the U.K. [found
    that] 12 percent of the physicians [surveyed] had seen an
    infection from a joint injection.
    So it’s not — it’s rare, but it’s not impossible. . . .
    [I]t just all comes down to there’s always some risk of
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    infection anytime you intrude through the . . . skin into,
    in particular, into a joint.
    An infectious disease specialist, who collaborated in
    Evans’ treatment while he was hospitalized, stated in his con-
    sultation note that the polymicrobial infection was “undoubt-
    edly sourced from the overlying skin.”
    Evans’ expert, Dr. Scott Swanson, is an orthopedic surgeon
    licensed in Nebraska. He treated Evans while he was hospital-
    ized. Dr. Swanson’s opinions were offered through deposition
    testimony and an affidavit that included his March 30, 2018,
    report. Dr. Swanson opined that the type of infection Evans
    developed is not considered to be common or a routine risk of
    the procedure performed. He testified that he had never seen
    or heard of a polymicrobial infection following an injection.
    He stated that in his professional opinion, based on his obser-
    vations as an orthopedic student and practitioner of 20 years,
    “this type of infection could simply not have occurred absent
    a significant breach in the sterile technique at some point in
    the process” of performing the injections. He opined that such
    a breach of the sterile technique is a violation of the standard
    of care for medical providers in the Lincoln area. In his depo-
    sition, Dr. Swanson testified that because he had not been
    informed regarding Freedom Healthcare’s sterility protocol, if
    any, he was unable to form criticisms as to the sterility of the
    equipment used on Evans, whether Kenley followed proper
    sterile technique, and whether Kenley followed an appropri-
    ate procedure.
    In an order granting summary judgment in favor of Freedom
    Healthcare, the district court concluded that res ipsa loquitur
    failed as a matter of law and found that Dr. Swanson’s deposi-
    tion testimony was internally inconsistent. The district court
    further concluded that Evans had failed to put forward com-
    petent expert testimony that Freedom Healthcare breached the
    applicable standard of care.
    With respect to res ipsa loquitur, the district court stated that
    where the overlying skin is pierced and a needle is advanced
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    into the joint, the development of infection following an injec-
    tion is not “‘so palpably negligent’” that negligence should be
    inferred as a matter of law.
    The district court granted summary judgment in favor of
    Freedom Healthcare. Evans appeals.
    III. ASSIGNMENT OF ERROR
    On appeal, Evans assigns that the trial court erred when it
    granted summary judgment in favor of Freedom Healthcare on
    Evans’ theories of negligence and res ipsa loquitur.
    IV. STANDARDS OF REVIEW
    [1,2] An appellate court affirms a lower court’s grant of
    summary judgment if the pleadings and admitted evidence
    show that there is no genuine issue as to any material facts or
    as to the ultimate inferences that may be drawn from the facts
    and that the moving party is entitled to judgment as a matter of
    law. Rodriguez v. Lasting Hope Recovery Ctr., 
    308 Neb. 538
    ,
    
    955 N.W.2d 707
     (2021). 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 and gives
    that party the benefit of all reasonable inferences deducible
    from the evidence. Lombardi v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
     (2018).
    V. ANALYSIS
    As to the law, the district court concluded that Evans could
    not advance the res ipsa loquitur doctrine because he had
    alleged negligence in his original complaint. This was error.
    As to the facts, the district court granted Freedom Health­
    care’s motion for summary judgment on the bases that Evans’
    expert witness, Dr. Swanson, had given inconsistent testimony
    and that his expert opinion regarding the standard of care was
    insufficient as a matter of law. Giving Evans the reasonable
    inferences deducible from the evidence, to which he is entitled
    in summary judgment proceedings, our review of the record
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    shows that the district court erred in both respects. As outlined
    below, Dr. Swanson’s testimony was not inconsistent and his
    opinion was sufficient, thus creating a genuine issue of mate-
    rial fact precluding summary judgment.
    The grant of summary judgment requires reversal.
    1. Pleadings
    As an initial matter, we note that in its order on summary
    judgment, the district court concluded that Evans could not
    advance the doctrine of res ipsa loquitur “as a matter of law”
    because he had also alleged the theory of negligence in his
    complaint. As we explain below, this misapplies the evidentiary
    rule for res ipsa loquitur at this stage of the proceedings.
    Res ipsa loquitur is a procedural tool that, if applicable,
    allows an inference of a defendant’s negligence to be submit-
    ted to the fact finder, where it may be accepted or rejected.
    Anderson v. Union Pacific RR. Co., 
    295 Neb. 785
    , 
    890 N.W.2d 791
     (2017). We have explained that res ipsa loquitur is “‘not
    a rule of pleading, not a substantive rule of law, but a rule of
    evidence.’” 
    Id. at 792
    , 890 N.W.2d at 796 (quoting Ramsouer
    v. Midland Valley R. Co., 
    135 F.2d 101
     (8th Cir. 1943)). A
    plaintiff alleging and offering proof of specific theories of
    negligence would necessarily preclude the fact finder from
    considering res ipsa loquitur, but the pleading stage does not
    warrant such particularity. See Anderson v. Union Pacific RR.
    Co., supra.
    The district court relied on Anderson v. Union Pacific
    RR. Co. in its analysis. But the issue in Anderson v. Union
    Pacific RR. Co. was whether the trial court erred when its jury
    instructions submitted both negligence and res ipsa loquitur.
    Given the evidence of a specific act of negligence, we con-
    cluded submitting both was error. See id. The district court
    in this case erroneously applied the jury instruction lesson
    of Anderson v. Union Pacific RR. Co. to this summary judg-
    ment proceeding.
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    EVANS v. FREEDOM HEALTHCARE
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    To the extent our cases could be understood to prohibit
    pleading both specific acts of negligence and res ipsa loquitur
    after the adoption of notice pleading, they are disapproved.
    See, e.g., Bargmann v. Soll Oil Co., 
    253 Neb. 1018
    , 
    574 N.W.2d 478
     (1998); Finley v. Brickman, 
    186 Neb. 747
    , 
    186 N.W.2d 111
    (1971). A plaintiff is able to recover on a valid claim regard-
    less of a failure to perceive the true basis of the claim at the
    pleading stage. See Tryon v. City of North Platte, 
    295 Neb. 706
    , 
    890 N.W.2d 784
     (2017). In a notice pleading jurisdiction
    like Nebraska, a party is only required to set forth a short and
    plain statement of the claim showing that the pleader is entitled
    to relief. 
    Id.
     The party is not required to plead legal theories
    or cite appropriate statutes so long as the pleading gives fair
    notice of the claims asserted. 
    Id.
     Accordingly, the district court
    erred as a matter of law when it rejected Evans’ invocation of
    res ipsa loquitur at this stage.
    Record
    The district court found that Dr. Swanson’s testimony was
    inconsistent, from which it erroneously reasoned Dr. Swanson
    believed Freedom Healthcare was free from fault, and that Dr.
    Swanson had expressed either no opinions or an inadequate
    opinion. Contrary to the district court’s characterization of the
    evidence, Dr. Swanson’s testimony was candid, but not incon-
    sistent, and he expressed adequate opinions.
    The following exchanges are illustrative.
    Q. Do you have any information about the sterility of
    equipment used at Freedom Healthcare?
    A. No.
    Q. So do you have any criticisms about whether or
    not the equipment that was used on . . . Evans was or
    wasn’t sterile?
    A. No.
    ....
    Q. Are you familiar with the joint injection procedure
    at Freedom Healthcare?
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    A. No.
    Q: So it would be fair to say you don’t have a criticism
    of the procedure as it is because you don’t know —
    A: Correct.
    Dr. Swanson testified in his deposition that if a sterile
    preparation was performed correctly before the injection, there
    would not be bacteria on the skin such that it could cause an
    infection like that which Evans developed. He explained:
    My main criticism with this all along, which I have
    openly shared with [Evans] and his wife, is that it was
    my opinion that the infection could not have developed
    if it were not for a significant breach in sterile technique
    somewhere along the process. That has always been my
    main criticism of this case.
    With respect to his opinion, Dr. Swanson testified:
    The foundation for my opinion is based on nearly 20
    years of experience as an orthopaedic student and prac-
    titioner and someone who specializes, really, in the diag-
    nosis and treatment of infections. Because of the nature
    of my practice in nearly — the foundation in which,
    based on nearly 20 years of extensive experience, I have
    never seen or heard of an infection after an injection. It
    is not considered to be a common or routine risk of the
    procedure. And in my opinion, it can only develop after
    a significant breach in sterile technique somewhere in
    the process.
    Dr. Swanson also indicated that the only way that the infection
    could have gotten into the joint is through an inoculation dur-
    ing the treatment with bacteria that do not normally exist in a
    closed joint.
    In addition to the foregoing, Dr. Swanson’s March 30, 2018,
    report stated:
    As a result of the hemocyte tissue autograft injection on
    February 15, 2018, . . . Evans contracted a polymicro-
    bial infection in his knee. That is to say, there was more
    than one (1) bacteria cultured from his knee infection.
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    In my sixteen years of practicing orthpaedic medicine, I
    have never seen or heardof [sic] a polymicrobial septic
    joint after an injection. An infectious disease special-
    ist . . . in his consultation note opined that this was
    “undoubtedly source[d] from the overlying skin.” In my
    opinion, this could only occur from a significant break in
    sterile technique.
    Dr. Swanson’s testimony and opinions are not inconsistent;
    instead, he expressed an absence of specific criticism due to
    lack of knowledge. Dr. Swanson opined this is not the type
    of infection that ordinarily happens in a closed joint in the
    absence of negligence. In several places, he opined that it was
    more likely than not a breach of sterile technique occurred and
    that such breach violated the standard of care.
    3. Application of Law to Facts
    Evans argues that summary judgment was improper because
    there is a genuine issue of material fact as to whether Free­
    dom Health­care breached the standard of care for administer-
    ing the knee injection. We examine Evans’ theories of recov-
    ery below and apply the facts in the record recited above to
    each theory.
    (a) Negligence
    [3-5] 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). In medical malpractice cases, expert testimony by a
    medical professional is normally required to establish the stan-
    dard of care and causation under the circumstances. Lombardo
    v. Sedlacek, 
    299 Neb. 400
    , 
    908 N.W.2d 630
     (2018). Therefore,
    once the defendant medical provider in a malpractice case pre­
    sents evidence that he or she has met the standard of care, the
    plaintiff must normally present expert testimony to show that
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    a material issue of fact exists preventing summary judgment.
    See 
    id.
    Freedom Healthcare’s expert, Dr. Brown, testified that
    Freedom Healthcare’s health care workers satisfied the appli-
    cable standard of care. The district court found that Evans
    did not thereafter satisfy his burden to put forward expert tes-
    timony that Freedom Healthcare breached the standard of care.
    Evidently distracted by its view that Dr. Swanson’s testimony
    contained inconsistencies, the district court determined that
    there was a “complete failure of proof” by Evans regarding
    the applicable standard of care. To the contrary, Dr. Swanson
    opined that there is always the possibility of infection caused
    by a breach in the preinjection sterile procedure and opined that
    Evans’ infection could not have developed if it were not for a
    significant breach in sterile technique somewhere along the
    process. Freedom Healthcare did not challenge Dr. Swanson’s
    expert credentials or file a motion to prevent Dr. Swanson
    from testifying about his opinion in this area of medicine. See,
    e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
     (1993); Schafersman
    v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
     (2001). Dr.
    Swanson was qualified and provided an opinion on the appro-
    priate standard of care for a joint injection, the weight of which
    opinion should be determined by the finder of fact. The district
    court erred when it disregarded Dr. Swanson’s testimony and
    granted summary judgment on negligence.
    (b) Res Ipsa Loquitur
    Turning to Evans’ theory of res ipsa loquitur, the district
    court found that the development of an infection in a joint fol-
    lowing an injection is not “‘so palpably negligent’” that neg-
    ligence should be inferred as a matter of law. From this, the
    district court concluded there was no genuine issue of material
    fact regarding Freedom Healthcare’s alleged negligence. At the
    summary judgment stage and on this record, we disagree.
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    Dr. Brown testified that the risk of infection from a joint
    injection may be “anywhere between one in 3,000 to one in
    50,000,” whereas Dr. Swanson testified that he had not encoun-
    tered or heard of an infection such as Evans’ in his career,
    although infection was theoretically possible where the skin is
    breached during an injection. The district court reasoned that,
    however rare, since an infection could occur following this
    type of procedure, Evans had failed to prove it was a situation
    to apply res ipsa loquitur. This is a misapplication of res ipsa
    loquitur at the summary judgment stage.
    [6] In medical malpractice cases brought under the res ipsa
    loquitur doctrine, negligence may be inferred in three situations
    without affirmative proof: (1) when the act causing the injury
    is so palpably negligent that it may be inferred as a matter of
    law, i.e., leaving foreign objects, sponges, scissors, et cetera,
    in the body, or amputation of a wrong member; (2) when the
    general experience and observation of mankind teaches that the
    result would not be expected without negligence; and (3) when
    proof by experts in an esoteric field creates an inference that
    negligence caused the injuries. Keys v. Guthmann, 
    267 Neb. 649
    , 
    676 N.W.2d 354
     (2004). Evans asserts that the circum-
    stances of this case fit into the first situation.
    [7] There are three elements that must be met for res ipsa
    loquitur to apply: (1) The occurrence must be one which would
    not, in the ordinary course of things, happen in the absence of
    negligence; (2) the instrumentality which produces the occur-
    rence must be under the exclusive control and management of
    the alleged wrongdoer; and (3) there must be an absence of
    explanation by the alleged wrongdoer. See Roberts v. Weber &
    Sons, Co., 
    248 Neb. 243
    , 
    533 N.W.2d 664
     (1995). See, also,
    Long v. Hacker, 
    246 Neb. 547
    , 
    520 N.W.2d 195
     (1994). When
    applicable, the essence of the doctrine is that an inference
    of negligence arises without further proof and that the facts
    speak for themselves. Long v. Hacker, 
    supra.
     Res ipsa loquitur
    is a procedural tool that, if applicable, allows an inference of
    a defendant’s negligence to be submitted to the fact finder,
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    where it may be accepted or rejected. Anderson v. Union
    Pacific RR. Co., 
    295 Neb. 785
    , 
    890 N.W.2d 791
     (2017).
    [8,9] At the summary judgment stage of litigation, when
    deciding whether res ipsa loquitur applies, a court must deter-
    mine whether evidence exists from which reasonable persons
    can say that it is more likely than not that the three elements of
    res ipsa loquitur have been met. See McLaughlin Freight Lines
    v. Gentrup, 
    281 Neb. 725
    , 
    798 N.W.2d 386
     (2011). If such evi-
    dence is presented, then there exists an inference of negligence
    which presents a question of material fact, and summary judg-
    ment is improper. 
    Id.
     The court should not weigh the evidence
    to determine whether res ipsa loquitur applies. 
    Id.
     Instead,
    the court must determine whether there is sufficient evidence
    from which reasonable persons could find that it is more likely
    than not that the three elements of res ipsa loquitur have been
    proved and that it is therefore more likely than not that there
    was negligence associated with the event. 
    Id.
    On appeal, we review the evidence in the light most favor-
    able to the party against whom summary judgment was granted,
    giving that party the benefit of all reasonable inferences. See
    Rodriguez v. Lasting Hope Recovery Ctr., 
    308 Neb. 538
    , 
    955 N.W.2d 707
     (2021). In so doing, we review the evidence as
    it pertains to the three elements recited above. The evidence
    presented by Freedom Healthcare was that it is extremely
    rare for a joint injection to become infected, and Dr. Swanson
    opined that the only time an infection such as Evans’ could
    occur is if the sterile preparation was not performed correctly.
    There is conflicting evidence regarding whether one or two
    syringes were used. There is evidence that, in the absence of
    negligence, such infection does not occur. There is evidence
    that the instrumentality which produced the infection was in
    the control of Freedom Healthcare. And there is no particular
    explanation by Freedom Healthcare as to how the infection
    occurred. The order below appears to judge the weight of such
    evidence and the credibility of the parties’ experts. However, as
    demonstrated by the evidence to which we refer above, there
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    exists an inference of negligence under the theory of res ipsa
    loquitur, which presents a question of material fact for the fact
    finder, and summary judgment was improperly granted. See
    McLaughlin Freight Line v. Gentrup, supra.
    VI. CONCLUSION
    For the foregoing reasons, we reverse the judgment of the
    district court and remand the cause for further proceedings
    consistent with this opinion.
    Reversed and remanded for
    further proceedings.