Apkan v. Life Care Ctrs. of Am., Inc.

918 N.W.2d 601, 26 Neb. Ct. App. 154
Nebraska Court of Appeals·Decided August 7, 2018·No. No. A-17-162.·Published·Cited by 2 cases

Opinion

MOORE, Chief Judge.

*156*604I. INTRODUCTION

David Apkan, special administrator of the estate of Musa Gwelo, brought an action against Life Care Centers of America, Inc., and Consolidated Resources Health *605Care Fund I, L.P., doing business as Life Care Center at Elkhorn (collectively Life Care), asserting Life Care's negligence caused Gwelo pain and suffering and led to her subsequent death. Apkan appeals the order of the district court for Douglas County, which granted summary judgment in favor of Life Care. On appeal, Apkan challenges the district court's admission of two affidavits over his objection. He further assigns the district court erred in failing to apply the "common-knowledge exception" to the requirement of expert testimony to prove causation. For the reasons set forth below, we affirm.

II. BACKGROUND

Apkan filed a complaint on June 17, 2014. He alleged that Gwelo was a resident of Life Care's nursing home in Elkhorn, Nebraska, from July 6 to 9, 2012, and that Life Care breached its duty to care for Gwelo, resulting in Gwelo's falling from her bed and suffering injury and in her subsequent death on July 12. The complaint set forth a negligence claim for Gwelo's pain and suffering prior to her death and for her wrongful death.

In its answer, Life Care admitted that Gwelo was its resident during the alleged time period, that it is skilled in the performance of nursing, and that it is properly staffed and licensed by the Department of Health and Human Services as alleged in Apkan's complaint. In all other respects, it denied the allegations of Apkan's complaint.

*157Life Care filed a motion for summary judgment, alleging that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. On August 19, 2016, the court heard arguments on the summary judgment motion. In support of its motion, Life Care offered the affidavits of Kirk Sweeney and Dr. Donald R. Frey, which the court received into evidence over Apkan's foundational objection.

Sweeney's affidavit stated that he was the director of Life Care's Elkhorn facility at all times relevant to Apkan's complaint. His affidavit included the following statements: Life Care admitted Gwelo on July 6, 2012, when she was transferred there from a hospital where she had been for several weeks. Gwelo was admitted to Life Care with several medical diagnoses, including multiple myeloma, bacteremia, chronic pain, osteoporosis, thrombocytopenia, anemia, tachycardia, and depressive disorder. Gwelo requested "Do Not Resuscitate" status at the time of her admission and completed the appropriate forms. Around 5 p.m. on July 6, a nurse checked on Gwelo, finding her on the floor on her left side "in a fetal position." Life Care was not aware of anyone who witnessed how Gwelo got from her bed to the floor. On July 9, Gwelo was transported to a cancer center for treatment, was readmitted to the hospital that day, and did not return to Life Care. Gwelo died on July 12. Her death certificate lists multiple myeloma as her immediate cause of death. A copy of her "Do Not Resuscitate" form and her death certificate were attached to Sweeney's affidavit.

Dr. Frey's affidavit and attached curriculum vitae stated that he is a medical doctor specializing in family medicine in Omaha, Nebraska. Frey outlined his educational background, his board certification in family and geriatric medicine, and his special qualifications in the area of geriatric medicine. Frey practices at a medical center and a family healthcare facility. He has written peer-reviewed and non-peer-reviewed articles and books about family and geriatric medicine and has given presentations and radio interviews on the same. Frey's affidavit *158included the following statements: Frey has regularly *606seen and cared for residents, like Gwelo, who reside in assisted living facilities, like Life Care. Based on his education, training, and experience, he is familiar with the generally recognized standard of care for assisted living facilities and healthcare providers working in assisted living facilities. He reviewed Apkan's complaint and "hundreds, if not more than a thousand," pages of medical records related to Gwelo's medical condition and treatment prior to her death.

Gwelo was 51 years old at the time of her death. Her official cause of death was multiple myeloma, a cancer of the blood, with which she was first diagnosed in October 2004. When the hospital discharged Gwelo to Life Care, her medical providers recommended she either be placed in hospice care or be moved to a nursing home. In addition to her multiple myeloma, Gwelo was being treated for a sepsis infection of her "port (used to provide chemotherapy treatments)." She also suffered from pancytopenia, secondary to her multiple myeloma, which required frequent blood transfusions ; acute respiratory failure; congestive heart failure ; hypokalemia (low potassium); malnutrition; headaches; and various other medical conditions. At the time of her admission to Life Care, Gwelo's prognosis was poor and she appeared extremely weak. Gwelo had no history of falls prior to her admission to Life Care.

In the early evening of July 6, 2012, only hours after her admission to Life Care, a nurse found Gwelo "lying on the floor in a fetal position." But no one reported observing or witnessing how she got from her bed to the floor. The records from Life Care reflect that its staff followed all appropriate precautions regarding falls. In addition, based on a review of the records, "little evidence" suggests Gwelo actually fell out of her bed, other than the allegations in Apkan's complaint. Gwelo suffered from low platelets, which posed a risk of her passing out and falling. Although the hospital noted some bleeding on Gwelo's brain on July 9, her low platelets may *159have caused a spontaneous bleed. Based on Dr. Frey's review of the evidence and information in the case, his credentials, and his knowledge of the applicable standard of care, he opined to a reasonable degree of medical certainty that Life Care at all times met the applicable standard of care and that the alleged actions or inactions of Life Care did not cause Gwelo's death, alleged damages, or both.

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Apkan v. Life Care Ctrs. of Am., Inc., 918 N.W.2d 601, 26 Neb. Ct. App. 154 (Neb. Ct. App. 2018).

918 N.W.2d 601 (Apkan v. Life Care Ctrs. of Am., Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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