Yoder v. Cotton

758 N.W.2d 630

276 Neb. 954

Randy L. YODER and Cheryl Yoder, husband and wife, Appellants, v. Joel T. COTTON, M.D., Appellee.

No. S-07-1337.

Supreme Court of Nebraska.

December 19, 2008.

David A. Domina and Linda S. Christensen, of Domina Law Group, P.C., L.L.O., Omaha, for appellants.

David J. Cripe, Thomas J. Shomaker, and Michael G. Monday, of Sodoro, Daly & Sodoro, Omaha, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, and McCORMACK, JJ.

HEAVICAN, C.J.

I. INTRODUCTION

Randy L. Yoder (Yoder) and Cheryl Yoder brought this claim against Joel T. Cotton, M.D., alleging battery and negligence as a result of an independent medical examination. Cotton filed a motion for summary judgment. The trial court granted the summary judgment motion and applied Nebraska law. The Yoders claim that there were genuine issues of material fact and that Iowa law should have applied. We affirm the decision of the district court granting summary judgment to Cotton.

II. BACKGROUND

Yoder is an insurance adjuster and resident of Lincoln, Nebraska. Yoder sustained an on-the-job injury while working in Iowa. As a result of that injury, Yoder filed a workers' compensation claim in Iowa. As part of that claim, Yoder was required to undergo an independent medical examination (IME) by a physician of the employer's choice. The physician chosen was Cotton, a neurologist practicing in Omaha, Nebraska.

The undisputed facts indicate that Yoder presented himself at Cotton's office for the IME on March 21, 2005. At that time, Yoder informed Cotton that he had surgery on his right shoulder less than a month before and that Cotton should exercise care during his examination of Yoder. Yoder also informed Cotton that he had surgeries on the same shoulder in 1999, 2001, and June 2003. Yoder claims that Cotton disregarded the warning and manipulated Yoder's right shoulder in such a way as to cause further, permanent injury. Cotton acknowledges that Yoder told him about the recent injury, but Cotton insists he did not manipulate the shoulder in any way that would cause the injury of which Yoder complains.

The Yoders filed a claim against Cotton for battery and negligence. The Yoders argued that because there was no physician-patient relationship, their claim cannot be defined as a malpractice action and therefore is not governed by the Nebraska Hospital-Medical Liability Act or any other statutory limitations on recoverable damages. The Yoders also argued that Iowa law should govern, because the circumstances requiring Yoder to undergo the IME arose under the Iowa workers' compensation law. Cotton contended that Nebraska law should apply and filed a motion for summary judgment.

The district court determined that Nebraska law applied and allowed discovery to proceed. After discovery was complete, Cotton once again filed a motion for summary judgment. The district court granted summary judgment on the negligence claim because the Yoders were unable to produce expert testimony on the issue of medical negligence or causation. The district court also granted summary judgment on the claim of battery, finding that Yoder had consented to the IME and therefore could not maintain a claim. The Yoders appealed. We moved this case to our docket pursuant to our authority to regulate the dockets of this court and of the Nebraska Court of Appeals.¹

III. ASSIGNMENTS OF ERROR

The Yoders claim that the district court erred when it (1) applied Nebraska law rather than Iowa law, (2) granted summary judgment on their claim for battery, and (3) granted summary judgment on their claim for negligence.

IV. STANDARD OF REVIEW

Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue as to any material fact 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 In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.³ When reviewing questions of law, an appellate court resolves questions of law independently of the trial court's conclusions.⁴

V. ANALYSIS

1. CHOICE OF LAW IN PERSONAL INJURY ACTION

The Yoders first argue that Iowa law should have applied in this case and that the district court erred when it applied Nebraska law. In a personal injury action, the question of whether to apply the law of the state where the injury occurred or the law of another state is a question of law.⁵ In answering any choice-of-law question, the court first asks whether there is any real conflict between the laws of the states.⁶ At oral argument, the Yoders essentially admitted that there is no difference between Iowa law and Nebraska law as it pertains to battery and negligence. We note that while Iowa law would allow the Yoders to collect punitive damages unavailable in Nebraska, no other substantial differences exist.⁷

Even if substantial differences did exist, however, Nebraska law would still apply. The Restatement (Second) of Conflict of Laws § 146⁸ states that "[i]n an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship ...."

We have recently applied § 146. We noted that "`in virtually all instances where the conduct and the injury occur in the same state, that state has the dominant interest in regulating that conduct.'"⁹ We went on to explain that every state has an interest in compensating its domiciliaries for their injuries.¹⁰

In this particular case, both the Yoders and Cotton are residents of Nebraska. The IME took place in Nebraska. The Yoders have given no reason to apply Iowa law other than arguing that Yoder was ordered to undergo the IME because of his Iowa workers' compensation claim. We therefore apply Nebraska law to the Yoders' claims.

2. SUMMARY JUDGMENT ON BATTERY CLAIM

The Yoders next argue that the district court erred when it granted Cotton summary judgment on their claim of battery. The Yoders claim that Yoder's consent was ineffective because he was required to undergo the IME in order to pursue his workers' compensation claim. Alternatively, the Yoders argue that Cotton's actions went beyond the scope of Yoder's consent.

The tort of battery requires actual infliction of unconsented injury upon or unconsented contact with another.¹¹ The Restatement (Second) of Torts § 892¹² states that "[c]onsent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor." And, "[i]f words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact."¹³

Battery committed by a physician has been distinguished from claims of medical malpractice. Courts have generally noted that a claim for battery arises out of an action which "`depends on neither professional judgment nor the physician's surgical skill.'"¹⁴ Battery actions in the medical context have been limited to situations where the physician did not gain consent for his or her actions or greatly exceeded the scope of that consent, e.g., operating on the wrong limb.¹⁵ In all cases, consent to a procedure defeated a battery claim.

In Nebraska, battery cases against physicians have been largely limited to claims of sexual assault.¹⁶ However, in Jones v. Malloy,¹⁷ we found that a patient's consent to chiropractic services defeated her battery claim against the physician, even though the physician acted outside the explicit scope of her consent. In that case, the patient had asked the chiropractor not to work on her lower back and had even refused him permission to x-ray her lower back.¹⁸ The patient alleged that the chiropractor disregarded her explicit instructions and that by adjusting her lower back, he committed a battery on her.¹⁹

We held that "[a]s a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient."²⁰ We further stated that "implied consent may be inferred from the patient's action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment."²¹ Questions of whether a physician overstepped his or her bounds of the patient's initial consent by failing to inform the patient of the risks of treatment is an issue of negligence properly addressed under a medical malpractice claim.²²

Yoder gave implicit consent when he arrived at Cotton's office to undergo the IME. Yoder cooperated with Cotton's directions during the course of the examination and gave no indication that he was not giving his consent. In his deposition, Yoder testified that he tape recorded his visit, and a transcript of the tape was included in the record. Although much of the tape is indistinguishable, there is no indication that Yoder ever refused to give consent or that he asked Cotton to stop the examination. Yoder's argument that his consent was ineffective because he was required to attend the examination is unpersuasive.

We also find Andrew v. Begley²³ instructive. In that case, plaintiff was required to undergo a physical examination as part of her regularly scheduled review of disability benefits. Plaintiff claimed the physician punctured her skin during the sensory examination, tore her rotator cuff while testing range of motion in her arm, and caused further injury to her back and legs. Plaintiff then filed claims for negligence and battery. The battery claim was dismissed, because plaintiff could not show that she did not give consent or that she had withdrawn her consent.²⁴

The court's analysis in Andrew addressed what constituted...