Ewers v. Saunders Cnty.

298 Neb. 944

906 N.W.2d 653

T. Louise EWERS, personally and as Personal Representative of the Estate of Mickley (Michael) Lynn Ellis, appellant,

v.SAUNDERS COUNTY, Nebraska, a political subdivision, et al., appellees.

No. S-17-251

Supreme Court of Nebraska.

Filed February 9, 2018

Larry R. Demerath, Omaha, of Demerath Law Office, and Justin B. Demerath, of O'Hanlon, McCollom & Demerath Law Firm, for appellant.

Joseph S. Daly and Mary M. Schott, Omah, of Sodoro, Daly, Shomaker & Selde, P.C., L.L.O., and J. Scott Paul, Omaha, of McGrath, North, Mullin & Kratz, PC., L.L.O., for appellees Advanced Correctional Health Care, Inc., et al.

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

Kelch, J.

INTRODUCTION

This appeal arises from the in-custody death of Mickley (Michael) Lynn Ellis. T. Louise Ewers, personally and as personal representative of Ellis' estate, brought a wrongful death action alleging medical malpractice by Advanced Correctional Healthcare, Inc. (ACH), and its agents in their individual and official capacities (collectively Appellees). Ewers also filed suit against Saunders County, the Saunders County sheriff's office, Saunders County Corrections, Saunders Medical Center, and Dan Scott, but those causes of action are not relevant to this appeal. Ewers now appeals from the orders of the district court for Saunders County that denied her discovery motions and granted Appellees' motion for summary judgment. We conclude that the district court did not err, and we affirm.

BACKGROUND

Ellis was incarcerated in the Saunders County jail on May 27, 2010. During the morning of June 22, he spoke with Mallory Reeves, a licensed practical nurse employed by ACH, the medical contractor hired by Saunders County. In her notes, Reeves stated that Ellis wanted to talk to a counselor about nightmares he was having and that she told him to fill out a "sick call," which is how an inmate reports medical issues.

Instead of filling out a "sick call," Ellis filled out a "kite" form, which is how an inmate relays reports or requests to jail personnel. In the form, he requested help with his nightmares. He mentioned that he was having chest pain and "hard" breathing when he awoke from the nightmares and that he was waiting to find the right medication to help him. Ellis had a history of chest pain and shortness of breath after nightmares and, about 3 weeks prior, had been taken to a hospital for mental health issues.

After receiving the "kite" form, jail personnel completed an incident narrative. According to the incident narrative, jail personnel informed Reeves of the physical complaints Ellis described on the "kite" form, and she responded that it was not a medical issue, as Ellis was requesting to speak with someone, and that there was not anything she could do for him. At her deposition, Reeves did not recall that conversation but admitted that chest pain was a serious complaint that could be life-threatening. As a result of the "kite" form, an appointment was made for Ellis to speak with a pastor.

Ellis made no further complaints until 3:40 a.m. on June 25, 2010. He told jail personnel that he was having trouble breathing and that his back hurt. At 4 a.m., jail personnel contacted Mary Scherling, a nurse practitioner employed by ACH. She suggested that Ellis breathe into a bag, believing he was having a panic attack. At 4:08 a.m., jail personnel called Scherling back and reported that breathing into the bag was not helping and that Ellis was now complaining of chest pain. Scherling instructed jail personnel to take Ellis to the hospital. At the Saunders Medical Center, Ellis was treated for a heart attack, but he died at 6:20 a.m. from a bilateral pulmonary embolism.

Ewers, who is Ellis' sister, filed suit, alleging that Ellis' death and associated damages resulted from the negligence of Reeves and Scherling. Ewers sought damages from Reeves and Scherling in their individual capacities and from ACH. In part, Ewers specifically averred that as a result of the negligence of Appellees, Ellis experienced damages and injuries, including chest pain, trouble breathing, and nightmares.

SUMMARY JUDGMENT

On January 6, 2017, Appellees filed a motion for summary judgment. The district court conducted a hearing and received evidence. For purposes of the appeal of the summary judgment, only the evidence relating to Reeves' conduct is relevant.

Victoria Halstead, a registered nurse, reviewed the autopsy report and medical records for Ellis and depositions by Reeves, Scherling, the sheriff, and jail personnel. She explained in a deposition that any person who complains of chest pain or shortness of breath requires a face-to-face assessment. Therefore, she opined that Reeves should have conducted an in-person assessment of Ellis' condition on June 22, 2010. Further, in Halstead's opinion, Ellis should have been taken to a hospital to be examined by a physician that day.

Halstead conceded that other than the "kite" form that Ellis filled out on June 22, 2010, he made no further reports of chest pain, shortness of breath, or other issues on June 22, 23, or 24. She stated that she could not predict whether the results of a complete medical assessment on June 22 would have yielded normal or abnormal results, but she suspected that the results would have been abnormal. But she testified that she did not have an opinion as to what a medical "workup" on June 22 would have shown.

The district court received the deposition testimony of Joyce Black, a registered nurse with a Ph.D. in nursing who both parties used as an expert witness. Ewers' counsel conducted direct examination for Black's deposition, and Appellees' counsel cross-examined her.

Black testified that she instructs graduate students on the subject of pulmonary embolism. To prepare for her testimony, Black reviewed records from the Saunders County jail; records of Ellis' emergency room visits, autopsy and forensic toxicology report, and death certificate; narratives of events from jail personnel; and the Nebraska State Patrol investigative report.

Black explained that a blood clot, or embolus, can form, perhaps in the leg, and that a piece of the clot can break off and travel through the body until it becomes lodged in a lung (a pulmonary embolism ). As a result, the clot will then block the flow of blood and oxygen to the tissue beyond the clot, and that tissue stops functioning. She testified that "[e]arly diagnosis is better in all cases because you want to stop the extension and additional clots from forming, and you do that with anti-coagulation." But Black also stated that even with early treatment, not all pulmonary embolisms are survivable.

Black further explained that the body mounts an inflammatory response to a pulmonary embolism. According to Black, the pain is "exquisite" or "excruciating" and does not go away. Black testified that the pain continues during the entire inflammatory response, which lasts about 72 hours. Black testified that in addition to excruciating pain, someone dying of a pulmonary embolism would experience the sensation of difficulty breathing and possibly the feeling of impending doom. She testified that once blood flow is completely blocked, a patient would remain conscious for less than 1 minute.

Black testified that surgeons would remove saddle emboli, the type that Ellis suffered, only when such emboli are positioned a certain way and that even then, there was a risk that the clot would break during surgery and kill the patient. She described having a patient's family say goodbye prior to surgery because "that's how uniformly fatal that particular embolus is."

Based on Ellis' history; his complaint on June 22, 2010; and the absence of additional complaints until June 25, Black offered her opinion that there was no pulmonary embolus on June 22. Black testified with "reasonable medical certainty" that an examination on June 22 would not have shown that Ellis was having a medical issue or a pulmonary embolism. She stated that if Ellis had experienced a pulmonary embolism on June 22, his condition would have worsened on June 22, 23, and 24. According to Black, based on Ellis' history of anxiety, it was not problematic for Reeves not to examine him on June 22.

Upon examination by Ewers' counsel, Black agreed that if, hypothetically, Ellis had a pulmonary embolism on June 22, 2010, then Reeves, hypothetically, should have examined him. She also agreed that if Ellis had a pulmonary embolism on June 22 and had been treated for it, his chances of recovery would have been higher. Black emphasized, however, that in her opinion, Ellis did not suffer a pulmonary embolism on June 22.

The district court granted the motion for summary judgment, finding no material issue of fact as to causation. It found that there was no expert testimony establishing a causal link between the acts of Reeves and Scherling and injuries or damages suffered by Ellis or Ewers. Specifically, the district court discerned no evidence that Ellis suffered a pulmonary embolism on June 22, 2010, or that an examination of Ellis on June 22 would have identified the presence of a pulmonary embolism on that date. It expressly rejected Ewers' argument that Black's response to a hypothetical question, that early detection of a pulmonary embolism on June 22 could have helped Ellis if he suffered from such condition on that day, was sufficient to show causation, because Black did not subscribe to the version of the facts presented in the hypothetical question.

Ewers now appeals the order granting summary judgment.

DISCOVERY

In addition to challenging the summary judgment, Ewers assigns errors pertaining to the discovery process and Appellees' alleged failure to timely and properly respond to requests for admission, requests for production, and interrogatories.

On April 8, 2014, Ewers filed a motion to compel discovery, which alleged that Appellees had provided "[i]mproper and/or inadequate" responses to...