Turek v. Saint Elizabeth Community Health Center

488 N.W.2d 567, 241 Neb. 467, 1992 Neb. LEXIS 272
CourtNebraska Supreme Court
DecidedSeptember 11, 1992
DocketNo. S-89-1223
StatusPublished
Cited by25 cases

This text of 488 N.W.2d 567 (Turek v. Saint Elizabeth Community Health Center) 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
Turek v. Saint Elizabeth Community Health Center, 488 N.W.2d 567, 241 Neb. 467, 1992 Neb. LEXIS 272 (Neb. 1992).

Opinion

Boslaugh, J.

The plaintiff, Donald D. Turek, has appealed from the order of the trial court granting the defendants’ motions for summary judgment and dismissing the plaintiff’s cause of action with prejudice. The defendants are Saint Elizabeth Community Health Center; Robert Gillespie, M.D.; and Pat Burgher Gillespie, a registered nurse.

[469]*469The plaintiff, who was born August 18, 1966, was admitted to the St. Elizabeth burn treatment unit on October 26, 1978, with second and third degree burns over 58 to 68 percent of his body. He remained in that hospital through March 31, 1979. While he was a patient at St. Elizabeth, the plaintiff was under the care of defendant Dr. Gillespie and was also treated by defendant Nurse Gillespie. The plaintiff alleges that during the course of his treatment at St. Elizabeth, Nurse Gillespie performed certain procedures upon him which were beyond the scope of her training and authority as a registered nurse. These procedures included the insertion of a catheter into his subclavian artery, the administration of an anesthetic, and the use of a dermatome to perform skin grafting.

The plaintiff also alleges that Dr. Gillespie and Nurse Gillespie directed a staff member to conceal records which would have indicated that nurses at St. Elizabeth burn unit were performing procedures which were beyond the scope of their training and authority and that as a result, these records were not available for inspection by the Joint Commission on Accreditation of Hospitals.

In the third amended petition, which was filed on May 10, 1988, the plaintiff alleged that he had been injured by the negligence of the defendants, and he affirmatively waived his right for review by the medical review panel as provided in Neb. Rev. Stat. § 44-2840(4) (Reissue 1988). The plaintiff does not claim a battery as a basis for recovery of damages.

The defendants’ motions for summary judgment are not included in the transcript, but are described in the judgment of the trial court. Apparently, the motions were heard upon the pleadings consisting of the third amended petition, the separate answers of the defendants, the motions, the deposition of the plaintiff offered by the defendants, and an affidavit of Bertine Loop, a certified master social worker, which affidavit was offered by the plaintiff. The plaintiff offered no other evidence in resistance to the motions.

The third amended petition alleged that Nurse Gillespie was negligent in that she performed medical procedures which she was not licensed to perform and that Dr. Gillespie and St. Elizabeth were negligent in allowing her to perform these [470]*470procedures. The plaintiff further alleged that the defendants were negligent in failing to inform him that Nurse Gillespie was not licensed to perform surgical procedures and that the defendants were negligent in failing to obtain his informed consent prior to performing the surgical procedures.

Although the plaintiff did not allege directly that he was injured as a result of the procedures which Nurse Gillespie performed, he did allege that when, in 1986, he discovered that Nurse Gillespie was unlicensed to perform such procedures, he “was upset that his treatment time could have been extended and his life endangered” and that as a result, he “sustained headaches, vomiting, sleeplessness, fear, severe emotional distress, and will be required to seek psychiatric care.” (Emphasis supplied.)

The trial court found that the plaintiff had failed to allege any negligent conduct on the part of the defendants because there is no claim that the treatment of the plaintiff did not comply with the standards of care applicable to the plaintiff; that the alleged lack of informed consent could not be a basis for recovery because none of the risks inherent to the treatment materialized or came to fruition; that the conduct of the defendants was not outrageous or beyond the bounds of decency, nor was it atrocious or intolerable in a civilized community; that any emotional harm suffered by the plaintiff was not of such a character that it could be said to be in excess of that which a reasonable person should be expected to endure; and that the fear and apprehension allegedly suffered by the plaintiff were not the proximate result of any act or omission of the defendants’. The plaintiff’s assignments of error are directed at the findings of the trial court.

A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. After the moving party has shown facts entitling it to a judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party. [471]*471Western Sec. Bank v. Terry A. Lambert Plumbing, 240 Neb. 448, 482 N.W.2d 278 (1992).

In reviewing an order sustaining a motion for summary judgment, an appellate court views the evidence in a light most favorable to the party opposing the motion and gives that party the benefit of all reasonable inferences that may be deduced from the evidence. Id.

All of the plaintiff’s allegations of negligence are based on the theory that the fact that Nurse Gillespie was not licensed or trained to perform surgical procedures was sufficient to prove negligence. The plaintiff has cited no authority in support of his contention, and the cases which have considered the matter hold to the contrary.

In Leahy v. Kenosha Memorial Hospital, 118 Wis. 2d 441, 348 N.W.2d 607 (Wis. App. 1984), the plaintiff sought damages for a brain injury to an infant alleged to have been caused by the actions of the treating physician and the hospital shortly after the birth of the infant. A part of the plaintiff’s evidence related to a claim that the persons caring for the infant were not registered nurses. The trial court had instructed the jury that a violation of the statute regulating the practice of professional nursing was negligence. In holding the instruction was erroneous and reversing the judgment for the plaintiff, the court said:

The court addressed the matter of negligence in the instructions by first delivering Wis J I — Civil 1005. The trial court then proceeded to give the optional concluding paragraph to the standard instruction as follows: “In addition to this general definition of negligence, there are other safety statutes enacted by the legislature, a violation of which is negligence as that term is used in the verdict and these instructions. [Emphasis added.]”
This language alerts any reasonably informed juror that the hospital’s negligence can be measured not only from the general definition already given but also from a finding of a violation of a statute.
The court then delivered the statutory definitions of professional nursing and practical nursing. The court following these definitions with this language: “If you [472]*472

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Turek v. SAINT ELIZABETH COM. HEALTH CTR.
488 N.W.2d 567 (Nebraska Supreme Court, 1992)

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Bluebook (online)
488 N.W.2d 567, 241 Neb. 467, 1992 Neb. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turek-v-saint-elizabeth-community-health-center-neb-1992.