Green v. Box Butte Gen. Hosp.

284 Neb. 243

818 N.W.2d 589

Bradley E. GREEN, appellee and cross-appellant,

v.BOX BUTTE GENERAL HOSPITAL, appellant and cross-appellee.

No. S–11–576.

Supreme Court of Nebraska.

Aug. 3, 2012.

Syllabus by the Court

[284 Neb. 243]1. 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, and gives the party the benefit of all reasonable inferences deducible from the evidence.

2. Summary Judgment. Summary judgment is proper when the pleadings, depositions, and admissions on file, together with affidavits, show there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom and show the moving party is entitled to judgment as a matter of law.

3. Summary Judgment. As a procedural equivalent to a trial, a summary judgment is an extreme remedy because a summary judgment may dispose of a crucial question in litigation, or the litigation itself, and may thereby deny a trial to the party against whom the motion for summary judgment is directed.

4. Malpractice: Health Care Providers: Words and Phrases. Malpractice is defined as a health care provider's failure to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his or her profession engaged in a similar practice in his or her locality or in similar localities.

5. Health Care Providers: Negligence. The proper measure of the duty of a hospital to a patient is the exercise of that degree of care, skill, and diligence used by hospitals generally in the community where the hospital is located or in similar communities.

6. Malpractice: Health Care Providers: Proof: Proximate Cause. The plaintiff patient in a medical malpractice action must provide proof of the generally recognized medical standard involved, that there was a deviation from that standard by the physician or medical care provider, and that such deviation was the proximate cause of the plaintiff's injury.

7. 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.

[284 Neb. 244]8. Summary Judgment: Proof. After the moving party makes a prima facie case for summary judgment, the burden to produce contrary evidence showing the existence of a material issue of fact shifts to the party opposing the motion.

9. Summary Judgment: Proof. In the absence of a prima facie showing by the movant that he or she is entitled to summary judgment, the opposing party is not required to reveal evidence which he or she expects to produce at trial.

10. Health Care Providers: Negligence. Hospital policies and rules do not conclusively determine the standard of care owed.

11. Summary Judgment: Affidavits. Affidavits filed on behalf of the parties moving for summary judgment are to be strictly construed.

12. Summary Judgment: Affidavits. The absence of counter-affidavits does not relieve a moving party plaintiff from the burden of establishing the evidentiary facts of every element necessary to entitle the plaintiff to summary judgment.

13. Summary Judgment: Affidavits. Supporting affidavits in summary judgment proceedings shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.

14. Negligence. While the identification of the applicable standard of care is a question of law, the ultimate determination of whether a party deviated from the standard of care and was therefore negligent is a question of fact.

15. Negligence: Evidence: Tort-feasors. It is for the finder of fact to resolve what conduct the standard of care would require under the particular circumstances presented by the evidence and whether the conduct of the alleged tort-feasor conformed with that standard.

16. Trial: Expert Witnesses. The trier of fact is not bound to accept expert opinion testimony.

17. Summary Judgment: Trial. Summary judgment should not be used to deprive a litigant of a formal trial if there is a genuine issue of fact.

18. Summary Judgment: Jury Trials. The purpose of summary judgment is not to cut litigants off from their right of trial by jury if they really have issues to try.

19. Summary Judgment: Directed Verdict: Trial. A motion for summary judgment is not a substitute for a motion for a directed verdict or for error proceedings taken after a full trial.

David A. Blagg and Brien M. Welch, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellant.

Robert O. Hippe and Robert G. Pahlke, of Robert Pahlke Law Group, P.C., L.L.O., Scottsbluff, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

McCORMACK, J.

I. NATURE OF CASE

Bradley E. Green sued Box Butte General Hospital (Hospital) after he fell and injured his left shoulder while admitted as a patient. Green is a paraplegic. The Hospital allowed Green to have his shower chair brought from home and attempt an unassisted transfer from his wheelchair to the shower chair. The district court granted partial summary judgment in favor of Green on liability and proximate cause and ultimately found damages of $3,733,022, which it capped at $1 million. The issue is whether there was a genuine issue of material fact precluding summary judgment.

II. BACKGROUND

Green has been a paraplegic since 1985. He was admitted to the Hospital on March 6, 2005, with pneumonia. On March 7, Green wanted to take a shower. The staff allowed Green to have someone bring his personal shower chair from home. A nurse's aide placed the shower chair in the shower of the patient bathroom. She then allowed Green to attempt to transfer himself from his wheelchair to the shower chair unassisted. During the transfer, the shower chair slipped and Green fell, sustaining injuries to his left shoulder.

Green filed a complaint against the Hospital, alleging that the Hospital was negligent and that it had failed to exercise a degree of skill and care ordinarily exercised by a hospital in Alliance, Box Butte County, Nebraska, or a similarly situated area. Green alleged that such negligence and breach of the standard of care were the proximate cause of Green's injuries. The Hospital generally denied that it had breached the standard of care or that its employees' actions had caused any injury or damage to Green.

1. Summary Judgment on Liability

After discovery, Green moved for partial summary judgment on the issues of negligence and causation. In support of the motion, Green offered his deposition testimony, the affidavit of a professor of nursing, and the Hospital's responses to Green's request for admissions. Green also introduced the deposition testimony of his treating physician, the deposition testimony of a registered practical nurse at the Hospital, and the deposition testimony of a registered nurse at the Hospital. In opposition to the motion for summary judgment, the Hospital presented the affidavits of two of its employees who were present at the time of Green's fall.

The district court granted Green's motion for partial summary judgment. The district court did not specifically state that there was no material issue of fact, but instead stated that it was “find[ing]” that the Hospital was “guilty of negligence” and that the Hospital's “negligence was a proximate cause of injuries to [Green] the nature and extent of which will have to be determined at trial.”

(a) Melissa Lucas and Carol Glass

Melissa Lucas, a nurse's aide, testified that when Green attempted to transfer from his wheelchair to his shower chair, she was standing in the doorway of the bathroom. She testified that she stood monitoring the situation with the intent of helping Green if he needed help. She explained that the bathroom was not large enough to allow her to be inside with the wheel-chair, the shower chair, and Green. Lucas stated that before the transfer, she had asked Green whether he wanted assistance and he had indicated that he did not.

Carol Glass, a licensed practical nurse, testified that she was in Green's room changing the linens on his bed when Green fell. She generally confirmed that the bathroom size was too small to accommodate both a shower chair and a wheelchair. She also confirmed that Green had fallen attempting to transfer himself into his shower chair. Glass testified that after the fall, Green was checked by a nurse for injuries before he was assisted back into the shower chair. Glass testified that when she asked Green whether he was injured, he indicated that he was not.

(b) Green

Green testified in his deposition that when he requested to take a shower, the “nurse,” presumably Lucas, asked “if I had any means of taking a shower.” Green testified that the staff did not seem to know what a shower chair was. Nevertheless, the staff tried to find one in the Hospital. When they were unable to, they allowed Green to have someone bring his shower chair from home.

Green testified that in order to use the shower chair, nothing more was required than to set it on the shower floor. Green stated that after Lucas placed the shower chair in the bathroom, she went back into his room. Because the bathroom was not big enough to accommodate both the shower chair and his wheelchair, Green parked his wheelchair halfway inside the bathroom. Green then attempted to transfer himself from the wheelchair to the shower chair.

According to Green, the shower chair suction cups did not hold and the chair slipped out from underneath him, causing him to fall. Green testified that he was alone in the bathroom when he fell and that he had to push a call button to receive assistance. Green stated that when two staff members came to his aid, he...