Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/05/2023 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
Brad Carson and Jamie Carson, individually and
as next friends of Boston Carson, a minor,
appellants, v. Rebecca Steinke, M.D., and
Douglas Boon, M.D., appellees.
___ N.W.2d ___
Filed May 5, 2023. No. S-21-873.
1. Malpractice: Physicians and Surgeons: Expert Witnesses. Under
Neb. Rev. Stat. § 44-2810 (Reissue 2021), a party who seeks to present
expert testimony on the standard of care in a medical malpractice case
must demonstrate familiarity with the standard of care in the defendant’s
locality or a similar locality.
2. Trial: Expert Witnesses: Appeal and Error. An appellate court
reviews de novo whether the trial court applied the correct legal standards for admitting an expert’s testimony, and an appellate court reviews
for abuse of discretion how the trial court applied the appropriate standards in deciding whether to admit or exclude an expert’s testimony.
3. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason,
and evidence.
4. Trial: Expert Witnesses: Proof. It is the burden of the proponent of
expert testimony to establish the necessary foundation for its admission.
5. Malpractice: Physicians and Surgeons: Expert Witnesses. Expert testimony offered to establish the standard of care in a medical malpractice
case is admissible only if its proponent can demonstrate the expert’s
familiarity with the relevant standard of care in the defendant’s community or a similar community.
6. Malpractice: Physicians and Surgeons: Words and Phrases. Neb.
Rev. Stat. § 44-2810 (Reissue 2021) defines the general standard
of care in medical malpractice cases as the ordinary and reasonable
care, skill, and knowledge ordinarily possessed and used under like
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
circumstances by members of their profession engaged in a similar
practice in their or in similar localities.
7. ____: ____: ____. To determine what constitutes ordinary and reasonable care, skill, and diligence under Neb. Rev. Stat. § 44-2810 (Reissue
2021), the test is that which health care providers, in the same community or in similar communities and engaged in the same or similar lines
of work, would ordinarily exercise and devote to the benefit of their
patients under like circumstances.
8. Malpractice: Physicians and Surgeons: Expert Witnesses. Expert
testimony concerning the standard of care in a medical malpractice case
should not be received if it appears the witness is not in possession of
such facts as will enable him or her to express a reasonably accurate
conclusion as distinguished from a mere guess or conjecture.
9. Trial: Expert Witnesses. In general, expert testimony is admissible
only if scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue.
10. ____: ____. Where an expert’s opinion is mere speculation or conjecture, it is irrelevant and cannot assist the trier of fact.
11. Malpractice: Physicians and Surgeons. Neb. Rev. Stat § 44-2810
(Reissue 2021) should be interpreted in light of its general purpose to
define the standard of care to which a defendant is to be held in medical
malpractice cases.
12. ____: ____. The purpose of Neb. Rev. Stat § 44-2810 (Reissue 2021)
to define the standard of care to which a defendant is to be held in
medical malpractice cases would not be served if the similarity of two
communities could be determined by considering characteristics that are
irrelevant to the level of medical care that is to be expected.
13. ____: ____. A court considers medically relevant factors, including
available facilities, personnel, equipment, and practices, to determine
whether two communities are similar under Neb. Rev. Stat § 44-2810
(Reissue 2021).
14. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. The
burden is on the proponent of standard-of-care testimony to demonstrate
that the expert is familiar with the customary practice among physicians
in the defendant’s community or a community that is similar in terms of
available resources, facilities, personnel, practices, and other medically
relevant factors.
15. ____: ____: ____: ____. If a party cannot demonstrate his or her
expert’s familiarity with the standard of care in the defendant’s community or a community that is similar, then the expert’s testimony is
properly excluded.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
16. Malpractice: Physicians and Surgeons: Statutes: Public Policy:
Legislature: Appeal and Error. An appellate court cannot depart from
the customary standard of care on policy grounds, even if is subject to
criticism, because the standard of care is defined by statute and public
policy is declared by the Legislature.
17. Malpractice: Physicians and Surgeons: Legislature: Appeal and
Error. An appellate court cannot read a burden-shifting framework into
Neb. Rev. Stat § 44-2810 (Reissue 2021) that the Legislature did not
put into it.
18. Malpractice: Physicians and Surgeons: Expert Witnesses. Expert
testimony establishing a national standard of care is admissible if the
expert can establish that the national standard of care does not differ in
the defendant’s community or a similar community.
19. Trial: Expert Witnesses. A trial court acts as gatekeeper to ensure the
reliability of an expert’s opinion.
20. ____: ____. A trial court is not required to exercise the gatekeeping
function from Schafersman v. Agland Coop, 262 Neb. 215,
631 N.W.2d
862 (2001), where expert testimony is challenged on the basis of lack
of foundation.
21. Pretrial Procedure: Expert Witnesses. An important aspect of each
party’s trial preparation is the discovery of the opinions that the opposing party’s expert witness will state at trial.
22. Pretrial Procedure. Pretrial discovery enables litigants to prepare for
trial without the element of an opponent’s tactical surprise.
23. Directed Verdict. A directed verdict is proper at the close of all the evidence only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law.
24. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
25. Malpractice: Physician and Patient: Proof: Proximate Cause. To
make a prima facie case for 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 plaintiff’s harm.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
26. Malpractice: Physicians and Surgeons: Expert Witnesses. Except in
limited circumstances, expert testimony is required on each element of a
medical malpractice claim.
27. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. To
satisfy the burden to establish each element of medical malpractice by
expert testimony, the expert’s opinion must be sufficiently definite and
relevant to provide a basis for the fact finder’s determination of an issue
or question.
28. Malpractice: Physicians and Surgeons: Expert Witnesses: Words
and Phrases. Medical expert testimony regarding causation based upon
possibility or speculation is insufficient; it must be stated as being at
least “probable,” in other words, more likely than not.
29. ____: ____: ____: ____. Although expert medical testimony need not
be couched in the magic words “reasonable medical certainty” or “reasonable probability,” it must be sufficient as examined in its entirety to
establish the crucial causal link between the plaintiff’s injuries and the
defendant’s negligence.
30. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof.
Even when an opinion purports to rise to a reasonable degree of medical certainty or probability, it does not satisfy the burden of proof on
causation in a medical malpractice case if the outcome is not sufficiently definite.
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
Diana J. Vogt and James L. Schneider, of Sherrets, Bruno &
Vogt, L.L.C., and Sarah Centineo, of Centineo Law, P.C., for
appellants.
James A. Snowden and Kathryn J. Van Balen, of Wolfe,
Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for
appellee Rebecca Steinke, M.D.
Mark A. Christensen, Travis W. Tettenborn, and Isaiah J.
Frohling, of Cline, Williams, Wright, Johnson & Oldfather,
L.L.P., for appellee Douglas Boon, M.D.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Freudenberg, JJ., and Miller, District Judge.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
Freudenberg, J.
I. INTRODUCTION
Parents brought a claim for medical malpractice against
two doctors involved in the birth and emergency care of their
infant son. At trial, the district court excluded expert testimony
concerning the standard of care, ruling that the parents failed
to establish the expert’s familiarity with the standard of care
under the locality rule. The district court also excluded expert
testimony concerning causation because of a lack of pretrial
disclosure and lack of foundation. At the close of the plaintiffs’ evidence, the district court directed a verdict in favor
of the defendant doctors, finding that the plaintiffs failed to
present sufficient evidence for a jury to find in their favor on
each element of their claims. On appeal, the plaintiffs argue
that the district court abused its discretion by excluding the
expert testimony on the standard of care and causation and
that a reasonable jury could have found in their favor on both
malpractice claims. We affirm.
II. BACKGROUND
In 2015, Jamie Carson (Carson) went into labor and was
admitted to St. Francis Medical Center (St. Francis) in Grand
Island, Nebraska. Around 1:30 a.m., a nurse informed Rebecca
Steinke, M.D., that the heart rate of the baby, Boston Carson,
had dropped to around 90 beats per minute, medical personnel
were having trouble keeping the monitor in position to get a
good reading, and they wanted Steinke to come to the hospital
and evaluate Carson.
Steinke immediately went to the hospital. Steinke was concerned because the heart rate monitor showed Boston’s heart
rate was too low. Steinke decided to place an internal monitor
on Boston’s head to get a more consistent reading of Boston’s
heart rate. To do so, Steinke punctured Carson’s amniotic sac,
allowing her to manually feel around Boston’s head.
As Steinke attempted to place the internal heart rate monitor, she felt Boston’s umbilical cord up by his head and
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
ordered the nurses to immediately summon the surgeon on call
for an emergency cesarean delivery (C-section). Steinke kept
her hand on Boston’s head to keep it from pinching the umbilical cord until Carson was moved to the operating room and the
surgeon delivered Boston by C-section. Boston was not moving or breathing after birth. The emergency room physician
arrived and was able to resuscitate and intubate Boston after
several tries.
Douglas Boon, M.D., then took over Boston’s care. Boon
provided care and treatment to Boston from shortly after birth
until Boston left St. Francis. Boon did not testify to his experience of Boston’s treatment.
Carson visited Boston in the neonatal intensive care unit
(NICU) several times the next day. On her third visit, Carson
observed Boston gasping for air. When Boon visited that night,
Carson told him that she believed Boston was dying because
he was hardly breathing. Carson then requested to have Boston
transferred to a different hospital. Boston was transferred by
ambulance to Children’s Hospital in Omaha, Nebraska, where
he was placed on a breathing machine. Upon his subsequent
discharge from the hospital, Boston was prescribed medication
for seizures.
Steinke saw Boston after his discharge from the hospital.
As part of the care Steinke provided Boston, she created a
“problem list,” which is a record of a patient’s history, including potential problems that the patient may have experienced.
The “problem list” included hypoxic ischemic encephalopathy
(HIE), or decreased alertness and cell damage due to the lack
of oxygen. At trial, Steinke later testified that the inclusion of
HIE on the “problem list” did not mean it occurred. Carson
testified that as Boston has grown, he was “developmentally
delayed,” required an individualized education plan at school,
took medication to aid in sleeping, and was prone to unpredictable emotional “meltdowns.”
Carson and her husband, Brad Carson, brought suit individually and on Boston’s behalf, alleging the professional
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
negligence of Boon and Steinke caused Boston to suffer permanent damage. The case proceeded to trial.
1. Expert Testimony
(a) Dr. Scott Nau
At trial, the Carsons called Dr. Scott Nau to testify as
an expert witness to the standard of care required of Boon
in his treatment of Boston. At the time of trial, Nau was a
board-certified general pediatrician at Mercy Hospital in Cedar
Rapids, Iowa. Before that, he worked for 32 years in the NICU
at St. Luke’s Hospital, also in Cedar Rapids.
Nau testified that he was “familiar with the standard of care
for pediatricians” in the NICU, but was familiar with communities the size of Grand Island only “[t]o a degree” and
was “guessing” that his current employment at Mercy Hospital
“would kind of be a mirror of St. Francis.” However, he said
that he knew “[St. Francis] provide[s] newborn intensive care
and ha[s] ventilated children briefly and babies briefly” but
that if St. Francis was “going to prolong ventilation,” then the
babies “were transferred.”
Before Nau could give his opinion on whether Boon deviated from the standard of care, Boon objected to a lack of
proper foundation. On voir dire, Nau testified that he was
not licensed to practice in Nebraska, had practiced his entire
career in Iowa, and had never been to Grand Island. He also
testified that at the time of his deposition, he knew nothing
about Grand Island, St. Francis, or Boon beyond what was
on St. Francis’ website and in Boon’s deposition. Finally,
he testified that he did not do anything to investigate the
standard of care for pediatricians practicing at St. Francis in
Grand Island and did not discuss the case with any physicians
from Nebraska.
The district court sustained Boon’s objection and instructed
the Carsons’ attorney to lay more foundation. When asked
whether he knew the standards for treating and caring for
pediatric patients in Nebraska, Nau responded that he had
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
“no reason to think that children in Nebraska would be entitled
to a lower level of care than children in Iowa.” He further testified that the American Academy of Pediatrics holds all members to the same standards nationwide and that the standard of
care for pediatrics is universal across the nation.
Nau confirmed that he had done nothing to verify that
the standard of care in Grand Island did not differ from the
national standard. He also testified that the practices at Mercy
Hospital, where he currently worked, were similar to what
he thought was happening at St. Francis, because both are
“Level 2” centers. He testified that his understanding was
that Mercy Hospital had a neonatologist and neonatal nurse
practitioners and St. Francis did not. The district court again
sustained Boon’s objection but allowed further testimony to
establish foundation.
Later in the trial, Boon testified that at St. Francis, “[w]e
provide care based on the resources and facilities in Grand
Island that are available to us.” Nau then retook the stand
and agreed that the “standard of care requires providing the
appropriate level of care based on the facilities and resources
available.” He also testified that this was the standard of care
he practices in Cedar Rapids. The district court again sustained
Boon’s objection to Nau’s testimony, finding that while both
doctors agreed the general standard of care is “doing the best
work you can with the resources at hand,” there had been “no
evidence” that Nau was “familiar with the resources in [Grand
Island]” or any “similar locality.”
(b) Dr. David Demarest
The Carsons hired Dr. David Demarest to examine and
evaluate Boston for the purposes of testifying at trial. He testified that Boston had significant mental deficits. Boon and
Steinke objected to Demarest’s answering whether his findings were “consistent with HIE or an anoxic injury at birth,”
because Demarest had stated in his deposition testimony that
he would not offer any opinion on causation. Demarest had
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
stated in his deposition that he would not be giving a “pediatric neurology opinion as to the exact cause of [Boston’s]
condition.” He further stated that he was not making “conclusions as to etiology” in this case. “Etiology” is “the cause of
a disease or abnormal condition.” 1 Demarest also stated that
he was “not qualified to weigh in on causation in this case.”
The district court sustained the objection based on a lack of
foundation and a lack of disclosure in discovery.
(c) Dr. Kelly Elmore
The Carsons called Dr. Kelly Elmore to testify as an expert
witness concerning the care and treatment provided by Steinke.
Elmore testified to her opinion that Steinke’s failure to meet
the standard of care for physicians delivering babies caused
harm to Boston. Specifically, she testified that Steinke should
have done a thorough review of the readout from the external
heart monitor to get more information about Boston’s heart
rate from earlier in the night and that puncturing Carson’s
amniotic sac harmed Boston because it caused his heart rate
to decrease and limit oxygen to the brain. Elmore opined that
without a doctor immediately available to perform a C-section
when Steinke punctured the amniotic sac, “there could have
been a significantly bad outcome,” and that Steinke made
Boston’s harm worse “and couldn’t fix it.”
Elmore also testified that there might have been compression of Boston’s umbilical cord prior to Steinke’s puncturing
Carson’s amniotic sac, that Boston may have been “compromised” before Steinke arrived at the hospital, and that she did
not know whether Boston suffered neurological injury before
Steinke arrived or between cord prolapse and delivery.
When asked if she could say with reasonable medical
certainty that Boston would have been “better off” if he
had been delivered by C-section immediately when Steinke
arrived, Elmore responded that “[c]linically,” she could say
that Boston “would have been better off.” She confirmed
1
Merriam-Webster’s Collegiate Dictionary 430 (11th ed. 2020).
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CARSON V. STEINKE
Cite as 314 Neb. 140
that she had a “clinical basis” for her opinion, but not a “scientific basis.”
2. Directed Verdict and Motion
for New Trial
At the close of the Carsons’ presentation of evidence, both
Boon and Steinke moved for directed verdicts. Viewing all evidence “in the light most favorable to the nonmoving party,” the
district court granted both motions.
Steinke argued that the Carsons’ evidence (1) showed no
departure from the standards of care in Grand Island or similar
communities and (2) failed to show that the alleged departures from the standard of care proximately caused harm to
the Carsons or that there was any causal connection between
Steinke’s actions and the Carsons’ harm. The district court
granted Steinke’s motion for a directed verdict, finding that
any verdict by the jury against Steinke on the element of causation “would be based on speculation rather than on evidence
showing a diagnosis within a reasonable degree of medical certainty.”
Boon argued that without Nau’s testimony, the Carsons
presented no evidence to establish the standard of care or that
a breach of the standard of care was the proximate cause of
the Carsons’ injury or damage. The district court agreed and
granted Boon’s motion for directed verdict.
The Carsons filed a motion for new trial. At a hearing, the
Carsons renewed their arguments against the directed verdicts
but presented no new evidence. The district court denied the
motion for new trial.
The Carsons appeal.
III. ASSIGNMENTS OF ERROR
The Carsons assign that the district court erred by granting directed verdicts for Boon and Steinke and denying their
motion for new trial. Specifically, they assign that the district court should have (1) allowed Nau to testify to the
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314 Nebraska Reports
CARSON V. STEINKE
Cite as 314 Neb. 140
standard of care for pediatricians in Grand Island and Boon’s
failure to meet that standard, (2) interpreted
Neb. Rev. Stat.
§ 44-2810 (Reissue 2021) to allow an expert to testify to
the standard of care for physicians in “similar” localities, (3)
credited testimony in the record that the standard of care for
board-certified pediatricians is a national standard, (4) not presumed the standard of care in Grand Island is different from
the national standard, and (5) allowed Demarest’s testimony
that Boston’s injuries were “consistent with” injuries caused by
lack of oxygen at birth.
IV. STANDARD OF REVIEW
We review de novo whether the trial court applied the correct legal standards for admitting an expert’s testimony, and we
review for abuse of discretion how the trial court applied the
appropriate standards in deciding whether to admit or exclude
an expert’s testimony. 2
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable or
if its action is clearly against justice or conscience, reason,
and evidence. 3
A directed verdict is proper at the close of all the evidence
only when reasonable minds cannot differ and can draw but
one conclusion from the evidence, that is, when an issue should
be decided as a matter of law. 4
In reviewing a trial court’s ruling on a motion for directed
verdict, an appellate court must treat the motion as an admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its
2
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202,
959 N.W.2d
251 (2021).
3
State v. Abligo, 312 Neb. 74,
978 N.W.2d 42 (2022).
4
de Vries v. L & L Custom Builders, 310 Neb. 543,
968 N.W.2d 64 (2021).
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CARSON V. STEINKE
Cite as 314 Neb. 140
favor and to have the benefit of every inference which can
reasonably be deduced from the evidence. 5
An appellate court reviews a denial of a motion for new trial
or, in the alternative, to alter or amend the judgment, for an
abuse of discretion. 6
V. ANALYSIS
The Carsons argue that the district court erred by excluding
Nau’s testimony concerning the standard of care applicable
to Boon, because he should have been allowed to testify to
a national standard of care and the district court failed to
consider the reliability factors laid out in Schafersman v.
Agland Coop. 7 They also argue that the district court erred by
excluding Demarest’s testimony due to his deposition testimony that he would not be offering any opinions on causation,
because an opinion that Boston’s condition was consistent
with HIE does not go to causation. Finally, they argue the
directed verdicts were improper because, considering the testimony of Nau, Demarest, and Elmore, they met their burden
on the elements of their malpractice claims against both Boon
and Steinke.
[1] We hold that under § 44-2810, a party who seeks to
present expert testimony on the standard of care in a medical
malpractice case must demonstrate familiarity with the standard of care in the defendant’s locality or a similar locality.
Additionally, we hold that the district court did not abuse its
discretion in determining the Carsons failed to demonstrate
Nau’s familiarity with the standard of care in Grand Island or
a similar locality. We also hold that the district court did not
abuse its discretion when it excluded Demarest’s testimony
5
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47,
948 N.W.2d 212
(2020).
6
Id.
7
Schafersman v. Agland Coop, 262 Neb. 215,
631 N.W.2d 862 (2001).
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as a causation opinion. Finally, we hold that the district court
correctly directed verdicts for Boon and Steinke, because
the Carsons presented no admissible expert testimony on the
standard of care applicable to Boon and because Elmore’s
testimony concerning Steinke was too speculative to establish causation.
1. Admissibility of Expert Testimony
[2-4] We review de novo whether the trial court applied the
correct legal standards for admitting an expert’s testimony, and
we review for abuse of discretion how the trial court applied
the appropriate standards in deciding whether to admit or
exclude an expert’s testimony. 8 An abuse of discretion occurs
when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against
justice or conscience, reason, and evidence. 9 It is the burden
of the proponent of expert testimony to establish the necessary
foundation for its admission. 10
(a) Not Abuse of Discretion to
Exclude Nau’s Testimony
[5-7] Expert testimony offered to establish the standard of
care in a medical malpractice case is admissible only if its
proponent can demonstrate the expert’s familiarity with the
relevant standard of care in the defendant’s community or
a similar community. 11 Section 44-2810 defines the general
standard of care in medical malpractice cases as “the ordinary and reasonable care, skill, and knowledge ordinarily
8
McGill Restoration, supra note 2.
9
Abligo, supra note 3.
10
State v. Casillas, 279 Neb. 820,
782 N.W.2d 882 (2010).
11
See, § 44-2810; Green v. Box Butte General Hosp., 284 Neb. 243,
818
N.W.2d 589 (2012); Gourley v. Nebraska Methodist Health Sys.,
265 Neb.
918,
663 N.W.2d 43 (2003); Capps v. Manhart,
236 Neb. 16,
458 N.W.2d
742 (1990).
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possessed and used under like circumstances by members of
his profession engaged in a similar practice in his or in similar
localities.” It also provides that to determine what constitutes
such ordinary and reasonable care, skill, and diligence in a
particular case, the test is “that which health care providers, in the same community or in similar communities and
engaged in the same or similar lines of work, would ordinarily
exercise and devote to the benefit of their patients under like
circumstances.” 12
[8-10] Expert testimony concerning this standard of care
should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess
or conjecture. 13 In general, expert testimony is admissible only
“[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” 14 Where an expert’s opinion is mere
speculation or conjecture, it is irrelevant and cannot assist the
trier of fact. 15
We have held that an expert’s affidavit was not admissible, because it did not affirmatively state that the expert was
familiar with the standard of care in the defendant’s county or
similar communities. 16 In Green v. Box Butte General Hosp., 17
an expert submitted an affidavit that said she received a doctorate in nursing from the University of Nebraska Medical
Center College of Nursing in Omaha and taught there for
decades. The expert never stated in her affidavit or otherwise that she was familiar with the standard of care in
12
§ 44-2810.
13
See Gourley, supra note 11.
14
Neb. Rev. Stat. § 27-702 (Reissue 2016).
15
Gourley, supra note 11.
16
Green, supra note 11.
17
Id.
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Box Butte County, where the alleged malpractice occurred. 18
Nevertheless, she opined that the defendant hospital had
violated the standard of care in various ways. 19 We held that
evidence of the expert’s experience and education without any
evidence of familiarity with the relevant or similar locality
was insufficient “to affirmatively demonstrate that she was
competent to testify as to the standard of care.” 20
In contrast, in Capps v. Manhart, 21 we held that an expert
who practiced in Merrillville, Indiana, could testify to the standard of care in Omaha, because he testified he was familiar
with the standard of practice applicable to dentists in Omaha
and similar communities. The trial court had overruled plaintiff’s objection that the expert had failed to show a familiarity with the standards in Omaha or similar communities. We
affirmed, holding that evidence that the expert had never
practiced in the defendant’s locality goes to the weight of the
evidence but does not keep the expert from testifying to the
standard of care in the relevant locality, if the expert testifies
that he or she is nevertheless familiar with the standard of care
in the same or similar locality. 22 Because the expert testified
that he was familiar with the standard of care applicable to
dentists in Omaha, he was competent to testify. 23
[11-13] Section 44-2810 does not define “similar community,” but we interpret this term in light of the general purpose of § 44-2810 to define the standard of care to which a
defendant is to be held in medical malpractice cases. 24 This
18
Id.
19
Id.
20
Id. at 255, 818 N.W.2d at 599.
21
Capps, supra note 11.
22
Id.
23
Id.
24
See Porter v. Knife River, Inc., 310 Neb. 946,
970 N.W.2d 104 (2022).
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purpose would not be served if the similarity of two communities could be determined by considering characteristics
that are irrelevant to the level of medical care that is to be
expected. Instead, we agree with those jurisdictions that consider medically relevant factors, including available facilities,
personnel, equipment, and practices, to determine whether
two communities are similar under their medical malpractice statutes. 25
For example, the Iowa Supreme Court, in Estate of
Hagedorn, 26 recognized that “the availability of medical knowledge has become more universal.” Nevertheless, it upheld its
statutory locality rule, explaining that “the locality rule has
retained validity in its other aspects,” including the “facilities, personnel, services, and equipment reasonably available
to a physician.” 27 The parties’ experts in Estate of Hagedorn
had given conflicting testimony on when the defendant should
have summoned the surgical team to prepare for an emergency
C-section. 28 The defendants’ experts argued that it was not
reasonable to do so sooner because of limited medical personnel available in the community. 29 Because the availability of
resources was relevant to the standard of care, the court held
that the trial court properly instructed the jury on the locality rule. 30
The Arkansas Supreme Court has likewise explained
that the “similarity of communities should depend not on
25
See, Robbins v. Footer, 553 F.2d 123 (D.C. Cir. 1977); Priest v. Lindig,
583 P.2d 173 (Alaska 1978); White v. Mitchell,
263 Ark. 787,
568 S.W.2d
216 (1978); Estate of Hagedorn,
690 N.W.2d 84 (Iowa 2004); Chapel v.
Allison, 241 Mont. 83,
785 P.2d 204 (1990); Purvis v. Moses H. Cone
Memorial Hosp., 175 N.C. App. 474,
624 S.E.2d 380 (2006).
26
Estate of Hagedorn, supra note 25,
690 N.W.2d at 89.
27
Id.
28
Estate of Hagedorn, supra note 25.
29
Id.
30
Id.
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population or area in a medical malpractice case, but rather
upon their similarity from the standpoint of medical facilities,
practices and advantages.” 31 In White v. Mitchell, 32 for example, a trial court admitted testimony from an expert who was
unfamiliar with the practice of medicine in the defendant’s
locality but testified that he had consulted in hospitals in
towns of a similar size to the defendant’s town, had practiced
at a hospital similar in size and available medical personnel
to the defendant’s hospital, and had consulted with physicians
from rural communities like the defendant’s community. The
Arkansas Supreme Court affirmed the trial court’s decision,
concluding that given the expert’s “vast medical practice”
and “extensive association” with medical communities comparable to the defendant’s, the trial court did not abuse its
discretion by admitting the evidence. 33
[14,15] In sum, the burden is on the proponent of standard-of-care testimony to demonstrate that the expert is familiar
with the customary practice among physicians in the defend
ant’s community or a community that is similar in terms of
available resources, facilities, personnel, practices, and other
medically relevant factors. 34 If a party cannot demonstrate his
or her expert’s familiarity with such standard of care, then the
expert’s testimony is properly excluded. 35
[16,17] We decline the Carsons’ request to interpret
§ 44-2810 to allow an expert unfamiliar with the defendant’s
community or similar community to testify to a national standard of care. We cannot eliminate the locality rule explicitly
31
Gambill v. Stroud, 258 Ark. 766, 770,
531 S.W.2d 945, 948 (1976).
32
White, supra note 25.
33
Id. at 799,
568 S.W.2d at 221.
34
See, Robbins, supra note 25;
Priest, supra note 25;
White, supra note 25;
Estate of Hagedorn, supra note 25;
Chapel, supra note 25;
Purvis, supra
note 25.
35
See, Green, supra note 11; Gourley, supra note 11;
Capps, supra note 11.
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required by the statute. 36 Although we have recognized that
“medical standards of care and skill are becoming national,
rather than local or regional,” 37 “[w]e cannot depart from
the customary standard of care on policy grounds, even if is
subject to criticism, because the standard of care is defined
by statute and public policy is declared by the Legislature.” 38
Additionally, we decline to impose a burden-shifting framework on § 44-2810. The Legislature did not put a burden-shifting framework into the statute, and we cannot read into a
statute something that is not there. 39
[18] Our holding does not mean that expert testimony concerning a national standard of care is always inadmissible. 40
Expert testimony establishing a national standard of care is
admissible if the expert can establish that the national standard of care does not differ in the defendant’s community
or a similar community. 41 As the Tennessee Supreme Court
has explained, “expert medical testimony regarding a broader
regional standard or a national standard should not be barred,
but should be considered as an element of the expert witness’ knowledge of the standard of care in the same or similar community.” 42 If testimony regarding a national standard
of care is “coupled with the expert’s explanation of why the
national standard applies under the circumstances,” then it is
“permissible and pertinent to support the expert’s opinion on
the standard of care.” 43
36
See, Hemsley v. Langdon, 299 Neb. 464,
909 N.W.2d 59 (2018); Murray v.
UNMC Physicians, 282 Neb. 260,
806 N.W.2d 118 (2011).
37
Kortus v. Jensen, 195 Neb. 261, 269,
237 N.W.2d 845, 850 (1976).
38
Murray, supra note 36, 282 Neb. at 271, 806 N.W.2d at 126.
39
See State v. Brunsen, 311 Neb. 368,
972 N.W.2d 405 (2022).
40
See, Walls v. Shreck, 265 Neb. 683,
658 N.W.2d 686 (2003); Shipley v.
Williams, 350 S.W.3d 527 (Tenn. 2011).
41
See, White, supra note 25;
Shipley, supra note 40.
42
Shipley, supra note 40,
350 S.W.3d at 553.
43
Id.
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Applying these principles, the district court did not abuse
its discretion by concluding that the Carsons failed to establish
Nau’s familiarity with the standard of care in Grand Island or
that Cedar Rapids is similar to Grand Island in terms of available medical facilities, personnel, services, or practices.
Nau initially testified: “I know [doctors in Grand Island]
provide newborn intensive care and have ventilated . . .
babies briefly, but if they were going to prolong ventilation,
[the babies] were transferred.” However, he admitted that he
lacked foundation for this statement, because he said he knew
nothing about Grand Island and had done nothing to investigate the standard of care in Grand Island. Given this testimony, it was not an abuse of discretion for the district court to
conclude that the Carsons had failed to establish Nau’s direct
familiarity with the standard of care in Grand Island.
Additionally, the district court did not abuse its discretion
by concluding that the Carsons failed to establish that he was
familiar with the standard of care in a “similar” locality. Nau
testified that he was familiar only with communities that are
similar to the Grand Island community in “size, population,
and education” “[t]o a degree” and that he was “guessing” his
current place of employment “would kind of be a mirror of St.
Francis.” These statements alone fall far below the “extensive
association” with similar communities found in White.
Nau further testified: “[M]y take of what I have seen at the
hospital that I practiced at for the past seven years is similar
to what I think was happening at St. Francis,” because “[b]oth
are Level 2 centers.” However, the district court did not
abuse its discretion by deciding that the hospitals’ status as
“Level 2 centers” is not enough to establish the similarity of
the two communities in this case. Both Nau and Boon agreed
that the actual standard of care in this case depended on the
resources and facilities available. Nau did not explain what
it means to be a “Level 2” center or whether it relates to the
available resources and facilities. In fact, he explained that
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while both St. Francis in Grand Island and Mercy Hospital
in Cedar Rapids had “Level 2” nurseries, his hospital had
neonatologists and neonatal nurses. He also explained that
unlike “Level 2” nurseries, “Level 3” nurseries “often have”
neonatologists, are “supposed to have” pediatric specialists,
and have the “ability to do EEGs [and] echocardiograms.”
Additionally, Nau testified that St. Luke’s Hospital in Cedar
Rapids, where newborns from his hospital would be transferred, was “not quite a real Level 3,” because it did not have
all the necessary pediatric specialists. Nau’s testimony shows
that resources can differ within a given level rating.
Finally, Nau testified that the standard of care in Cedar
Rapids would be to transfer a newborn from Mercy Hospital
to a higher level NICU at St. Luke’s Hospital, both of which
are in Cedar Rapids. There was no testimony that there was a
higher level of nursery a comparable distance away from St.
Francis to which Boston could have been transferred. Instead,
all we know is that Boston was eventually transferred to
Children’s Hospital in Omaha.
Given the lack of testimony establishing the available
resources, personnel, and facilities in both Grand Island and
Cedar Rapids, the district court did not abuse its discretion by
determining that the Carsons failed to show that Grand Island
and Cedar Rapids are similar.
[19,20] Because the district court excluded Nau’s testimony
due to a lack of foundation, we disagree with the Carsons’
argument that the district court was required to analyze the
admissibility of Nau’s testimony under the factors provided
in Schafersman v. Agland Coop. 44 In Schafersman, we held
that a trial court acts as gatekeeper to ensure the reliability
of an expert’s opinion, and we laid out several factors to
assess the expert’s methodology and reasoning. 45 We have
44
Schafersman, supra note 7. See
Hemsley, supra note 36.
45
Schafersman, supra note 7.
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applied the Schafersman factors where expert testimony concerning the standard of care was challenged on the basis of
scientific unreliability. 46 We have not applied the Schafersman
factors when deciding whether expert testimony was inadmissible because of a lack of foundation. 47 Boon challenged Nau’s
testimony based on a lack of foundation establishing his familiarity with the standard of care, not because of any unreliability in Nau’s reasoning or methodology. Therefore, the district
court was not required to exercise the gatekeeping function
from Schafersman.
(b) Demarest
[21,22] Likewise, we find no merit to the Carsons’ argument that the district court abused its discretion by excluding
Demarest’s testimony that Boston’s injuries were “consistent
with HIE or an anoxic injury,” due to lack of disclosure in
discovery and lack of foundation. An important aspect of each
party’s trial preparation is the discovery of the opinions that
the opposing party’s expert witness will state at trial. 48 Pretrial
discovery enables litigants to prepare for trial without the element of an opponent’s tactical surprise. 49
Accordingly, in Paulk v. Central Lab. Assocs., 50 we held
that a trial court erred by allowing an expert to testify to an
opinion that he failed to disclose in a pretrial deposition.
A woman brought a malpractice and wrongful death action
46
See Hemsley, supra note 36.
47
See, Bank v. Mickels, 302 Neb. 1009,
926 N.W.2d 97 (2019);
Hemsley,
supra note 36; Rankin v. Stetson,
275 Neb. 775,
749 N.W.2d 460 (2008);
Zimmerman v. Powell, 268 Neb. 422,
684 N.W.2d 1 (2004).
48
Paulk v. Central Lab. Assocs., 262 Neb. 838,
636 N.W.2d 170 (2001).
Accord Norquay v. Union Pacific Railroad, 225 Neb. 527,
407 N.W.2d
146 (1987).
49
Paulk, supra note 48.
50
Id.
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against two doctors for failing to detect and diagnose her
deceased husband’s malignant melanoma. 51 The doctors
deposed the woman’s medical expert in preparation for trial, 52
and the opposing party asked the expert to disclose all of his
anticipated testimony concerning the tissue samples. 53 At trial,
the expert testified to his opinion that malignant melanoma
cells were detectable in early samples, an opinion he did not
disclose in the deposition. 54 The opposing party moved for a
mistrial, which the trial court denied. 55 We held on appeal that
the district court abused its discretion in denying the mistrial,
because whether the melanoma was detectable was a key issue
in the case and, therefore, the expert’s undisclosed testimony
constituted an unfair surprise. 56
Similarly, allowing Demarest to testify that Boston’s condition was consistent with HIE or an anoxic injury would have
been an unfair surprise to Boon and Steinke. Demarest not only
failed to disclose his opinion pretrial, but affirmatively stated
that he would not be giving any opinion as to the cause of
Boston’s condition. Demarest also stated he was not competent
to give such opinions. It was not an abuse of discretion for the
district court to exclude Demarest’s opinion for lack of disclosure and lack of foundation.
We disagree with the Carsons’ argument that Demarest’s
opinion was not an opinion as to causation. The Carsons rely
on case law wherein we have held an opinion that an injury
or condition is “consistent with” a particular cause is not sufficient to establish causation in a medical malpractice case. 57
51
Id.
52
Id.
53
Id.
54
Id.
55
Id.
56
Id.
57
See Baer v. Schaap, 171 Neb. 347,
106 N.W.2d 468 (1960).
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However, just because such an opinion is insufficient to establish causation does not mean that it is irrelevant to causation.
Whether Boston’s condition at the time of trial was caused
by HIE or other anoxic injury at birth was a key issue in the
Carsons’ claim against Steinke. It was reasonable for the district court to conclude that Demarest’s opinion was offered
to show that causal link. Alternatively, if his opinion was not
offered to show causation, then it was not relevant to any issue
in this case and was still inadmissible. 58
2. Directed Verdicts
Having determined that the district court did not err in
excluding the testimony of Nau and Demarest, we hold that
the district court did not err in granting Boon’s and Steinke’s
motions for directed verdict.
[23,24] A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can
draw but one conclusion from the evidence, that is, when an
issue should be decided as a matter of law. 59 In reviewing a
trial court’s ruling on a motion for directed verdict, an appellate court must treat the motion as an admission of the truth
of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the
party against whom the motion is directed is entitled to have
every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced
from the evidence. 60
[25,26] To make a prima facie case for medical malpractice, a plaintiff must show (1) the applicable standard of
care, (2) that the defendant(s) deviated from that standard
58
See, Neb. Rev. Stat. § 27-402 (Reissue 2016); State v. Said,
306 Neb. 314,
945 N.W.2d 152 (2020).
59
de Vries, supra note 4.
60
AVG Partners I, supra note 5.
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of care, and (3) that this deviation was the proximate cause
of the plaintiff’s harm. 61 Except in circumstances not applicable here, expert testimony is required on each element. 62
Because Nau’s testimony was properly excluded, the Carsons
presented no expert testimony on any of the three elements to
make a prima facie case against Boon. Accordingly, the district court correctly directed a verdict in favor of Boon.
[27-29] The district court also correctly directed a verdict
in favor of Steinke, because the Carsons failed to present
evidence against Steinke sufficient to allow a reasonable jury
to find in their favor on the issue of causation. To satisfy the
burden to establish each element of medical malpractice by
expert testimony, the expert’s opinion must be sufficiently
definite and relevant to provide a basis for the fact finder’s
determination of an issue or question. 63 We have explained
that “‘[m]edical expert testimony regarding causation based
upon possibility or speculation is insufficient; it must be
stated as being at least “probable,” in other words, more likely
than not.’” 64 Although expert medical testimony need not be
couched in the magic words “reasonable medical certainty”
or “reasonable probability,” it must be sufficient as examined
in its entirety to establish the crucial causal link between the
plaintiff’s injuries and the defendant’s negligence. 65
[30] Accordingly, we have held that even when an opinion purports to rise to a reasonable degree of medical certainty or probability, it does not satisfy the burden of proof
on causation if the outcome is not sufficiently definite. 66 For
61
Thone v. Regional West Med. Ctr., 275 Neb. 238,
745 N.W.2d 898 (2008).
62
See, Green, supra note 11; Thone, supra note 61.
63
Thone, supra note 61.
64
Lewison v. Renner, 298 Neb. 654, 663-64,
905 N.W.2d 540, 548 (2018).
65
Lewison, supra note 64.
66
See, Richardson v. Children’s Hosp., 280 Neb. 396,
787 N.W.2d 235
(2010); Rankin, supra note 47.
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example, in Rankin v. Stetson, 67 an expert testified that it was
more likely than not that a patient would have had a better
prognosis had the defendant not breached the standard of care.
We held that statements relating to a “‘chance of avoiding permanent . . . injury’” or a “‘better prognosis’” “do not establish
the certainty of proof that is required.” 68 However, the expert
also testified that the patient had neurological deficits as a
result of spinal cord compression and that the patient “would
have had a better outcome” if she had received early surgical
decompression. 69 We held that this was sufficiently certain to
establish causation. 70
The district court admitted Elmore’s testimony without
objection. On review from a directed verdict, we must give
the Carsons the benefit of every reasonable inference which
may be deduced from this testimony. 71 But examined in its
entirety and given the benefit of every reasonable inference,
Elmore’s testimony was too speculative and insufficiently definite to support a finding that Steinke’s negligence caused
Boston harm. Elmore first testified to her opinion that when
Steinke punctured Carson’s amniotic sac, “there could have
been a significantly bad outcome” and that Steinke could not
fix it. (Emphasis supplied.) This is language of possibility,
not probability.
Elmore also testified that Boston’s harm was due to a lack of
oxygen to his brain because of a low heart rate and that Steinke
made Boston’s heart rate worse and could not “fix it.” But she
did not state to what degree of medical certainty she could state
that opinion. And she did not say whether “worse” referred to
some ultimate harm or simply a danger of ultimate harm.
67
Rankin, supra note 47.
68
Id. at 787,
749 N.W.2d at 469.
69
Id.
70
Id.
71
See AVG Partners I, supra note 5.
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Elmore testified that Boston would have been “better off”
if he had been delivered when Steinke first arrived, but she
avoided answering whether she could state this opinion with
a reasonable degree of medical certainty. Instead, she stated
that although she did not have a scientific basis for her opinion, “[c]linically,” she could say that Boston would have been
better off.
On cross-examination, Elmore affirmed that she could
not say whether Boston suffered neurological injury before
Steinke arrived, because Boston’s heart rate was potentially
already compromised. And when asked whether she had any
opinion as to whether neurological injury occurred between
Steinke’s intervention and the C-section, Elmore admitted that
“it could have, I do not know.” These answers show that even
if Elmore was certain that Steinke caused Boston’s heart rate
to drop, she can only speculate about whether Boston suffered
any harm as a result.
Even assuming that Elmore’s clinical basis meets the requisite degree of medical certainty, an opinion that Boston would
have been “better off” is not sufficiently definite, because this
opinion was never connected to any actual injury to Boston.
Unlike the expert in Rankin, Elmore never said what injury
Steinke made worse or how Boston would have been “better
off.” Phrases like “made it worse” and “better off” are not
sufficiently certain to establish causation without testimony
of what harm Boston experienced. Demarest testified that
Boston had significant mental deficits, and Carson testified to
Boston’s developmental, educational, and behavioral issues,
but there was no testimony that these conditions were caused
by Steinke’s alleged negligence. Because Elmore refused to
state that her opinions were made to a reasonable degree of
certainty, admitted that she could not say whether Boston
suffered any harm before or after Steinke’s alleged negligence, and failed to identify any harm that Boston suffered,
her opinions as to causation are insufficiently definite to be
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relevant and could not support a jury finding for the Carsons
on the issue of causation.
VI. CONCLUSION
The district court did not abuse its discretion by excluding
the testimony of Nau and Demarest. The district court also
correctly directed verdicts for Boon and Steinke, because the
Carsons failed to present sufficient evidence to allow a reasonable jury to make findings in their favor on each element of
their malpractice claims.
Affirmed.
Papik, J., not participating.
