Steineke v. Share Health Plan of Nebraska, Inc.

518 N.W.2d 904, 246 Neb. 374, 56 A.L.R. 5th 929, 1994 Neb. LEXIS 169
CourtNebraska Supreme Court
DecidedJuly 15, 1994
DocketS-92-1115
StatusPublished
Cited by30 cases

This text of 518 N.W.2d 904 (Steineke v. Share Health Plan of Nebraska, Inc.) 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
Steineke v. Share Health Plan of Nebraska, Inc., 518 N.W.2d 904, 246 Neb. 374, 56 A.L.R. 5th 929, 1994 Neb. LEXIS 169 (Neb. 1994).

Opinions

Fahrnbruch, J.

Nancy Steineke appeals the order of the district court for Douglas County granting summary judgment in favor of Share Health Plan of Nebraska, Inc. (Share), in her breach of contract action against Share.

We affirm the order of the district court.

STANDARD OF REVIEW

In appellate review of a summary judgment, the 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. Larsen v. First Bank, 245 Neb. 950, 515 N.W.2d 804 (1994).

Summary judgment is to be granted only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is 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. Id.

FACTS

Giving Steineke the benefit of all reasonable inferences deducible from the evidence, as we are required to do, the facts of this case are as follows:

Share, at all times material to this case, was a Nebraska corporation authorized to operate a health maintenance [376]*376organization pursuant to Neb. Rev. Stat. § 44-3201 et seq. (Reissue 19¿8) (§ 44-3201 et seq. has since been replaced by the Health Maintenance Organization Act, Neb. Rev. Stat. § 44-3292 et seq. (Cum. Supp. 1992)). Steineke, an employee of Douglas County, was entitled to health care services provided by Share as a result of an agreement between Share and Douglas County.

The evening of September 30, 1987, Steineke entered the emergency room at Archbishop Bergan Mercy Hospital (Bergan) complaining of left lower abdominal pain. Steineke was seen the following day, October 1, by Dr. Robert Luby, who informed her that she had an ectopic pregnancy. An ectopic pregnancy is one in which a fertilized ovum develops outside the uterine cavity. Dorland’s Illustrated Medical Dictionary 1349 (27th ed. 1988). It was ultimately determined that Steineke’s fetus had implanted in her left fallopian tube.

Dr. Luby, who was a non-Share physician at that time, advised Steineke that emergency surgery was required. Dr. Luby scheduled the surgery to be done at Bergan that same day by a Share physician. In the surgery contemplated by Dr. Luby, the physician would remove the fetus and tissue from Steineke’s fallopian tube in an attempt to preserve the tube so that a microsurgical technique could be used at a later time to repair the tube. Steineke’s other fallopian tube had been removed in 1983 due to a prior tubal pregnancy.

Before Steineke was taken to surgery, a representative of Share telephoned Steineke at Bergan and informed Steineke that it was necessary for her to be transferred to University of Nebraska Medical Center (UNMC), where her primary physician was located. Steineke was told that if she chose to remain at Bergan, she would be responsible for the cost of her care.

Steineke was then transferred to UNMC by ambulance. At UNMC, Steineke was informed that the physicians at that facility would be unable to save either the fetus or her fallopian tube because “that procedure” was not done at UNMC. The record fails to reflect any evidence that Dr. Luby, Steineke, or any Share representative was aware at the time Steineke was transferred to UNMC that physicians at UNMC would be [377]*377unable to perform a procedure to attempt to save Steineke’s fallopian tube such as the procedure contemplated by the physicians at Bergan. Before signing a written consent for surgery at UNMC, Steineke was told that neither her fetus nor her remaining fallopian tube could be saved. Surgery was performed, rendering Steineke permanently unable to conceive and bear children.

On April 3, 1990, Steineke sued Share, alleging in her petition that Share breached its contract, to provide medical services to Steineke by “refusing to authorize the medical services of Bergen [sic] to be covered for the emergency medical problems of [Steineke], when the defendant Share, knew or should have known, that such services to be rendered to the plaintiff, as an emergency were covered by the [health care plan] with Share.” Steineke requested damages for mental and physical pain and suffering, both past and future, as well as damages “by reason of her inability to conceive and bear children in the future.”

The trial court subsequently sustained a motion by Share for summary judgment

for the reason that no genuine issue of fact exists with respect to the issue of causation, and there is no genuine issue of fact that any act or omission of the Defendant had any causal relation to the damages claimed by the Plaintiff, which damages, to the extent that they seek recompense for pain and suffering and/or emotional distress, are not recoverable in a breach of contract claim as a matter of law.

Steineke timely appealed from that order. We removed the case from the Nebraska Court of Appeals pursuant to our authority to regulate the workload of the appellate courts of this state.

ASSIGNMENT OF ERROR

Steineke’s sole assignment of error on appeal is that the trial court erred in granting summary judgment for Share.

ANALYSIS

Steineke argues that because of Share’s actions in overriding the judgment of her physician, Dr. Luby, she lost the chance to [378]*378keep her one remaining fallopian tube intact and thus lost the chance to conceive and bear children through the breach of some contractual duty on the part of Share.

Share argues that any alleged breach of contract on its part was not the proximate cause of Steineke’s damages, because there is a lack of evidence that Steineke’s remaining fallopian tube could have been saved had her surgery been done at Bergan. Share also argues that subsequent intervening acts by the physicians at UNMC were the cause of Steineke’s damages.

As to Steineke’s loss of chance arguments, she has cited no authority, nor have we discovered any, that Nebraska recognizes loss of chance as a cause of action or as an element of damages in either tort or contract cases. We decline to adopt the loss of chance doctrine in this case, and therefore we do not address Steineke’s loss of chance arguments.

Because the loss of chance theory is inapplicable to our analysis of this case, we are instead guided by principles of contract law as to Share’s argument that any alleged breach of contract on its part was not the proximate cause of Steineke’s alleged damages.

It is a basic concept that in any damage action for breach of contract the claimant must prove that the breach of contract complained of was the proximate cause of the alleged damages. In a breach of contract case there must be a causal relationship between the damages asserted and the breach relied upon. Proof which leaves this issue in the realm of speculation and conjecture is insufficient to support a judgment.

Omaha P. P. Dist. v. Darin & Armstrong, Inc., 205 Neb.

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Cite This Page — Counsel Stack

Bluebook (online)
518 N.W.2d 904, 246 Neb. 374, 56 A.L.R. 5th 929, 1994 Neb. LEXIS 169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steineke-v-share-health-plan-of-nebraska-inc-neb-1994.