Bank v. Mickels

302 Neb. 1009

926 N.W.2d 97

Carl BANK and Teresa M. Bank, Appellants,

v.Jason J. MICKELS, M.D., and Omaha & Sports Medicine, P.C., Appellees.

No. S-18-427.

Supreme Court of Nebraska.

Filed April 25, 2019

Jason M. Bruno and Jared C. Olson, of Sherrets, Bruno & Vogt, L.L.C., Omaha, for appellants.

William M. Lamson, Jr., and William R. Settles, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellees.

Heavican, C.J., Miller -Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller -Lerman, J.

I. NATURE OF CASE

Carl Bank and Teresa M. Bank sued Dr. Jason J. Mickels and Omaha Orthopedic Clinic & Sports Medicine, P.C. (collectively Mickels), in the district court for Douglas County for medical malpractice and loss of consortium. Their complaint alleged that Dr. Mickels breached the standard of care because he failed to obtain informed consent before performing an injection and manipulation procedure on Carl’s shoulder and failed to diagnose and treat an infection that ultimately caused permanent injury and serious daily pain. During the jury trial, the court made various rulings regarding the admission of evidence, including witness testimony, and jury instructions, with which the Banks take issue. A jury returned a general verdict in favor of Mickels. The court overruled various posttrial motions by which the Banks had requested a new trial. The Banks appeal. We analyze the Banks’ assignments of error below and determine that they are without merit. We specifically conclude that Neb. Rev. Stat. § 44-2816 (Reissue 2010) does not require informed consent to be written and that the court’s jury instruction to that effect was a correct statement of the law and warranted by the evidence. We affirm.

II. STATEMENT OF FACTS

Our statement of facts is taken from the evidence presented at trial. Carl’s physician referred him to Dr. Mickels, an orthopedic surgeon, for a rotator cuff tear in August 2012. Dr. Mickels performed surgery to repair the rotator cuff in September 2012. Following the surgery, Carl kept his arm in a sling and completed physical therapy and recommended exercises. At the first postoperative visit, on October 2, Carl was recovering as expected. Carl testified that soon after, in early October, he was slammed forward into the passenger restraints in his automobile when his wife braked to avoid colliding with another vehicle. Carl testified that his pain had continued, but not worsened, after the braking incident. He returned to Dr. Mickels to make sure that the near-collision had not affected his shoulder. Carl testified that Dr. Mickels performed x rays and stated that "everything was fine, all the pins were in place and not to worry about it."

According to Carl’s testimony, not everything was fine. Carl continued to experience pain when he followed up with Dr. Mickels on November 20, 2012. Dr. Mickels injected a local anesthetic into the shoulder joint to allow him to test the range of motion in Carl’s affected shoulder. The purpose of the procedure was to assess the range of motion without pain to determine if Carl’s limited range of motion was due to inadequate pain controls. Dr. Mickels testified that he and Carl discussed the risk of increased pain after an injection and range of motion procedure and that they discussed the risk of infection from any injection. Dr. Mickels noted that Carl had tattoos and was not a "stranger to needles," and according to Dr. Mickels, Carl stated he had never had an infection from receiving any of his tattoos. Carl testified that Dr. Mickels did not explain the risks of the manipulation and injection. Carl did not sign an informed consent form for the procedure and testified that he would not have agreed to go forward with the injection and procedure if the risks had been explained to him. During the range of motion procedure, as Dr. Mickels raised the arm, Carl heard cracking and popping noises in his shoulder. He recalled that Dr. Mickels told him those sounds were "a good sign" of scar tissue breaking down. During the procedure, Dr. Mickels observed that Carl "had a pretty stiff shoulder," so he prescribed additional physical therapy.

Carl testified that his shoulder was more painful after the November 2012 procedure. He reported that his range of motion was continuing to decline and that his pain was severe. At trial, Carl attributed the pain to the November injection and procedure. Dr. Mickels testified that his medical records attributed Carl’s worsening pain to the automobile incident in October.

In December 2012, Dr. Mickels ordered x rays and an MRI. Dr. Mickels described the MRI results and testified that the findings pointed to a stress fracture or, less likely, avascular necrosis. He recommended that Carl take a break from therapy and perform exercises at home to rest over the next couple of weeks. At this point, Carl was back to work with restrictions.

Carl returned on December 20, 2012, at which time Dr. Mickels noted some muscular atrophy in Carl’s shoulder. Dr. Mickels asked a partner physician to observe Carl to see if he had "any other ideas." Dr. Mickels ordered electrodiagnostic studies to evaluate nerve function, and Carl’s results were normal. At the next visit, on January 9, 2013, Dr. Mickels recommended that Carl return to therapy and continued his work restrictions.

At this point, Carl had not improved, and he sought a second opinion from Dr. Charles Rosipal, an orthopedic surgeon, on January 14, 2013. Dr. Rosipal ordered a CT scan and suspected an infection. He requested a radiologist to perform a CT-guided needle aspiration to obtain material to culture and check for bacteria. However, the culture was negative and Dr. Rosipal noted, "There does not appear to be any active infection in the shoulder."

Dr. Rosipal scheduled shoulder replacement surgery for April 1, 2013, but when he opened Carl’s shoulder, he found that a serious infection had eroded essentially all of the cartilage in the joint. Dr. Rosipal installed a temporary joint and prescribed strong antibiotics. A permanent replacement joint was installed in May 2013.

Carl has severe ongoing shoulder pain and stiffness that requires frequent physical therapy treatments and reduces his quality of life. He avoids public places because of the risk of someone’s bumping into him.

The Banks brought this action in the district court for Douglas County, claiming medical malpractice and loss of consortium against Mickels. Their complaint alleged that Dr. Mickels breached the standard of care required of medical providers in Omaha, Nebraska, because he failed to obtain informed consent before performing an injection and manipulation procedure on Carl’s shoulder and because he failed to diagnose and treat an infection. The Banks alleged that Dr. Mickels’ negligence caused the infection to destroy Carl’s joint before another doctor could treat it.

Trial was held on December 11 through 14, 2017. Both parties called expert witnesses. The Banks called two experts, Drs. Sonny Bal and Roger Massie, the latter of whom appeared by deposition. Dr. Bal is an orthopedic surgeon from Columbia, Missouri. He testified that Dr. Mickels fell below the standard of care by failing to obtain informed consent for the November 20, 2012, procedure, stating, "There’s some question as to whether or not the patient was informed. And if the patient was not told or given the information that a reasonable health care provider would give, that’s below the standard of care." According to Dr. Bal, the standard of care required the patient be given information that there was a risk of a fracture and a risk of infection.

Dr. Bal also testified that Dr. Mickels fell below the standard of care because "despite many, many pieces of evidence pointing to an infection, [Carl] never got a workup or evaluation for infection." Dr. Bal testified that Dr. Mickels performed the rotator cuff repair properly, but that Carl’s lack of improvement after surgery was a "red flag."

On cross-examination, Mickels’ counsel questioned Dr. Bal about the compensation he received for his work as an expert witness in this case. Mickels’ counsel offered several bills into evidence that documented Dr. Bal’s expert witness fees. These were received without objection. On redirect, the Banks’ counsel asked Dr. Bal what he does with the money he earns from expert witness work. Mickels objected on the basis of relevancy. In an offer of proof, the Banks’ counsel represented that Dr. Bal donated this money to charity. The district court sustained Mickels’ objection to this question.

The Banks also called Dr. Massie, a family physician from Malcolm, Nebraska, whose opinions were generally similar to Dr. Bal’s. Dr. Massie explicitly opined that the standard of care required that Dr. Mickels obtain written informed consent from Carl for the November 20, 2012, procedure. Dr. Massie explained that written consent is "a generic form that is signed by the patient that you have in detail explained to the patient the risk, benefits, complications that could accrue to such procedure."

Mickels called Dr. John Wright as an expert witness on the standard of care. Dr. Wright is an orthopedic surgeon who practices general orthopedics in Kearney, Nebraska. Dr. Wright testified to his schooling, training, experience, and publications. Dr. Wright became board certified by the American Board of Orthopaedic Surgery in 2001 and recertified in 2010. His practice predominantly involves joint replacement surgery and sports medicine and includes rotator cuff repairs.

Dr. Wright testified that Dr. Mickels’ care and treatment of Carl met the standard of care and that Dr. Mickels obtained appropriate informed consent for the November 20, 2012, procedure. He testified that the injection into Carl’s shoulder "was done according to acceptable techniques and community standards." He opined that the procedure did not cause Carl’s infection or fracture. Later in the trial, the Banks unsuccessfully sought to...