Smith v. Weaver

407 N.W.2d 174, 225 Neb. 569, 1987 Neb. LEXIS 920
CourtNebraska Supreme Court
DecidedJune 12, 1987
Docket85-684
StatusPublished
Cited by15 cases

This text of 407 N.W.2d 174 (Smith v. Weaver) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Weaver, 407 N.W.2d 174, 225 Neb. 569, 1987 Neb. LEXIS 920 (Neb. 1987).

Opinions

Caporale, J.

Appellant, Evelyn Smith, sued appellee Dr. Michael Weaver, a Nebraska physician qualified under the Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat. §§ 44-2801 et seq. (Reissue 1984), and practicing at Omaha, alleging that he breached the professional duties he owed her as his patient. The district court sustained Weaver’s motion for summary judgment, thereby dismissing Smith’s petition as to him. She appeals and assigns that action as error, claiming that there exists a genuine issue of material fact. We affirm.

Smith alleged that Weaver was negligent in a number of respects, but the specific allegation on which this appeal is grounded asserts that Weaver was negligent in failing to warn Smith of the adverse side effects attendant to the taking of the prescribed medication, Clinoril.

The record establishes that Weaver first saw Smith as a patient from August through November of 1977. Smith had been experiencing, among other symptoms, fatigue, itching, hair loss, sores, and facial bumps. After hospitalizing her for a week during this period, Weaver diagnosed Smith’s condition as possible systemic lupus erythematosus, a disorder of the connective tissue.

When Smith next saw Weaver, on July 24, 1979, she was experiencing increased swelling of her hands and feet and stiffness of her whole body, and was lightheaded and dizzy. After his examination and study of laboratory tests, Weaver [571]*571diagnosed joint complaints and, as he had earlier, possible lupus. According to Smith, she had also been diagnosed as having arthritis. Weaver reviewed the situation with Smith on August 7, 1979, and prescribed Clinoril. According to Weaver, he advised Smith of the “primary,” or “common,” side effects of the drug, being dermatologic and gastrointestinal in character, and instructed her to call him if she experienced any problems. Smith denies being told of any side effect whatsoever, and states she was told only that the drug was new and “good and strong” and that Weaver wanted her to try it.

On August 8, 1979, Smith reported to Weaver by telephone that she had taken two Clinoril tablets as instructed and that her hands were swollen. According to Smith, she had also vomited and her entire body swelled and itched. Weaver believed these manifestations resulted from the disease process, and advised Smith to continue taking the Clinoril but to see him if she did not improve. Smith took two more tablets and saw Weaver the following day, August 9, 1979. Smith reported that her hands and feet were swollen, and itched. It was still Weaver’s impression that Smith was most likely experiencing a f lareup of the lupus but could not rule out an allergic reaction to the Clinoril. According to Weaver, there exists no test for determining whether one is allergic to Clinoril. He thus instructed her to discontinue the Clinoril, and put her on different medication. During three more telephone calls in August of 1979, Smith reported she was improving somewhat but still had pain, and her hands had peeled. Smith last saw Weaver on September 5,1979, at which time she complained of a shoulder problem and that her hands had continued to peel.

Smith asserts that following her experience with Clinoril, she lacks energy, has pain, develops sores, has white spots on her head, her cuticles grew over her nails and were pussy, and her mouth has become dry, as the result of which her ability to speak has been adversely affected, as has her ability to eat and sleep. She can no longer work or enjoy life.

Weaver stated that he exercised the reasonable and ordinary care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession in Omaha and similar communities, an opinion confirmed by the medical [572]*572review panel convened pursuant to the Nebraska Hospital-Medical Liability Act. The record contains no countervailing expert evidence.

A summary judgment is to be granted where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law. Naidoo v. Union Pacific Railroad, 224 Neb. 853, 402 N.W.2d 653 (1987); Bohannon v. Guardsman Life Ins. Co., 224 Neb. 701, 400 N.W.2d 856 (1987); Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985). The party moving for summary judgment must make a prima facie showing that if the evidence were uncontroverted at trial, he or she would be entitled to judgment as a matter of law. Such a showing shifts the burden of producing evidence as to a factual issue to the party opposing the motion. The court then views the evidence in a light most favorable to the party opposing the motion, and decides only whether there is an issue of fact, not how such an issue should be decided. Marshall v. Radiology Assoc., ante p. 75, 402 N.W.2d 855 (1987); Naidoo v. Union Pacific Railroad, supra.

Applying those principles in Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982), we reversed the summary judgment entered in favor of the defendant physician, where the plaintiff patient’s esophagus was perforated during a dilation procedure and the physician had offered no evidence that he had met the requisite standard of care. In doing so, we held that whether a specific manner of treatment by a physician demonstrates a lack of skill or knowledge or a failure to exercise reasonable care is a matter usually to be proved by expert testimony. Accord Marshall v. Radiology Assoc., supra. On remand, the physician in Hanzlik v. Paustian, 216 Neb. 575, 344 N.W.2d 649 (1984), cert. denied 469 U.S. 854, 105 S. Ct. 179, 83 L. Ed. 2d 113, again moved for summary judgment and on this occasion filed an affidavit to the effect he had followed the generally accepted and recognized standard of care or skill in the relevant and similar communities. We concluded that in the absence of countervailing evidence the affidavit established the physician’s entitlement to a summary judgment dismissing the plaintiff patient’s petition.

[573]*573Smith contends, however, that the Hanzlik cases have no application when the claim is that a physician failed to warn of the possible side effects of a drug, thereby rendering the patient’s consent to the treatment an uninformed one. She argues, in effect, that in such a situation the conclusion to be drawn from the facts does not require specific, technical, or scientific knowledge and that since the circumstances surrounding the injury are within the common experience, knowledge, and observation of laymen, expert testimony is not required. Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 N.W.2d 486 (1986).

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Smith v. Weaver
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Bluebook (online)
407 N.W.2d 174, 225 Neb. 569, 1987 Neb. LEXIS 920, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-weaver-neb-1987.