Jones v. Porretta, 428 Mich. 132, 405 N.W.2d 863, 873 (1987) ("expert evidence must usually be presented" in res ipsa cases).Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354, 358-59 (2004) ("under the res ipsa loquitur doctrine, negligence may be inferred . . . when proof by experts . . . creates an inference that negligence caused the injuries").Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1157-58 (1981) ("expert testimony to the effect that the medical community recognizes that an event does not ordinarily occur in the absence of negligence may afford a sufficient basis for the application of the doctrine of res ipsa loquitur ").
Summary judgment is proper when the pleadings and evidence admitted at the hearing 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. Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004). In reviewing a summary judgment, an appellate 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.
In reviewing a summary judgment, an appellate 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. Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004). A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.
[1,2] Summary judgment is proper when the pleadings and evidence admitted at the hearing 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. Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004). In reviewing a summary judgment, an appellate 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.
1975)). Examples of such matters of common knowledge include “failure to remove a surgical instrument from a patient's body following a procedure or amputating an incorrect limb.” id. (citing Keys v. Guthmann, 676 N.W.2d 354 (Neb. 2004)). In the case at hand, the moving defendants have presented the affidavit of Mlinek averring that they did not deviate from the standard of care or cause White any harm.
The Nebraska Supreme Court also explicitly stated expert testimony is generally required to show negligence in medical malpractice cases. Keysv. Guthmann , 676 N.W.2d 354, 358 (Neb. 2004) ( citingWalls v.Shreck , 658 N.W.2d 686 (Neb. 2003)). The plaintiff argues she is able to prove each element of professional negligence, including causation, through the expert testimony of Nurse Stanzel.
Some injuries, however, do not require expert testimony concerning negligence and may implicate the doctrine of res ipsa loquitur. See generally Keys v. Guthmann, 676 N.W.2d 354, 358-59 (Neb. 2004): "[I]in medical malpractice cases brought under the res ipsa loquitur doctrine, negligence may be inferred in three situations without affirmative proof: (1) when the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, et cetera, in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries." In filing no. 51, the plaintiff again seeks a Rule 35 Medical Examination, explaining that he needs a qualified medical expert to prove that the defendants breached the standard of medical care owed to him.
In medical malpractice cases brought under the res ipsa loquitur doctrine, negligence may be inferred in three situations without affirmative proof: (1) when the act causing the injury is so palpably negligent that it may be inferred as a matter of law, i.e., leaving foreign objects, sponges, scissors, et cetera, in the body, or amputation of a wrong member; (2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and (3) when proof by experts in an esoteric field creates an inference that negligence caused the injuries. Keys v. Guthmann , 267 Neb. 649, 676 N.W.2d 354 (2004). Evans asserts that the circumstances of this case fit into the first situation.
A “duty” is an obligation, to which the law gives recognition and effect, to conform to a particular standard of conduct toward another. If there is no duty owed, there can be no negligence.Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004).Erickson v. U–Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
Certainly, the conflict between the opinions of Black and the Hospital—to the extent that they could be considered for a standard of care within common knowledge—would preclude the determination that Green was entitled to judgment as a matter of law. See, Thone v. Regional West Med. Ctr., supra note 15; Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004); Walls v. Shreck, 265 Neb. 683, 658 N.W.2d 686 (2003). See, also, Krenek v. St. Anthony Hosp., supra note 15.