CONTACT US AT:

635 S.14th Street
P.O. Box 81809
Lincoln, NE 65801

ph. (402) 475-7091
(800) 927-0117
fx. (402) 475-7098

latimer

 

NSBA Web Site

The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for March 14, 2008

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

These Bar Events links give you information about upcoming programs and activities:

For more information about LUNCH & LEARN SEMINARS, TELESEMINARS and LIVE WEBCASTS and to register contact Kathryn Bellman.

These links provide you with information on existing Member Benefits:

Case Summaries
Medical Malpractice, Expert Opinion, Exceptions

Back to ShortCuts

Because we conclude that the Thones’ failure to provide expert testimony on proximate causation is fatal to their claim, we affirm the district court’s grant of summary judgment.

Thone v. Regional West Med. Ctr., 275 Neb. 238 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.

2.  Proof. A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming the evidence went uncontested at trial, would entitle the party to a favorable verdict.

3.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Malpractice:

1.  Physician and Patient: Proof: Proximate Cause. To make a prima facie case of medical malpractice, the plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm.

2.  Physicians and Surgeons:

     a.  Expert Witnesses: Proof. As a general matter, expert testimony is required to identify the applicable standard of care.

     b.  Proximate Cause: Damages. In the medical malpractice context, the element of proximate causation requires proof that the physician’s deviation from the standard of care caused or contributed to the injury or damage to the plaintiff.

3.  Expert Witnesses:

     a.  Causation in professional negligence cases may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. ••• Whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.

     b.  Presumptions. A party can make a prima facie case of professional negligence even without expert testimony in cases where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons.

     c.  Proximate Cause. Expert testimony is almost always required to prove proximate causation.

4.  Testimony: Proof. Lay testimony may suffice to establish a defendant’s deviation from the standard of care.

Date Filed and Case No.: March 14, 2008. No. S-05-1556.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar14/s05-1556.pdf

Court Appealed From: Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.

Attorneys for the Appeal: Brian M. Mumaugh and Gregory R. Piche for Collette Thone and Anthony Thone, appellants. William M. Lamson, Jr., and Molly M. Lukenbill for Regional West Medical Center et al., appellees.

Justices: Heavican, C.J., Wright, Gerrard, McCormack, and Miller-Lerman, JJ.

Participating on Briefs: Connolly, J.

Not Participating: Stephan, J.

Authored By: Heavican, C.J.

Summary: Collette Thone and her husband, Anthony Thone, brought suit against the Regional West Medical Center (RWMC) and Drs. Glen Forney, Jeffrey Holloway, and Thomas White for alleged negligence in treating Collette Thone for complications related to a previously installed gastric band. RWMC and the physicians (collectively appellees). Appellees moved for summary judgment offering in support of their motion, affidavits by Drs. Forney and White, both of whom stated that none of the named defendants had violated the applicable standard of care. The Thones’ responsive evidence consisted of two affidavits: one from Collette herself and one from Collette’s mother. Collette’s affidavit consisted of quoted excerpts from a manual supplied by BioEnterics Corporation (BioEnterics), a manufacturer of gastric bands, immediately followed by Collette’s own commentary explaining how appellees deviated from that particular instruction. A photocopy of the manual was attached to Collette’s affidavit.

Appellees objected to both affidavits, and the district court sustained the objections. Finding that the Thones failed to offer any admissible evidence to support their claim of medical malpractice and that the Thones’ allegations of negligence were not the sort that could be inferred without proof under the so-called common-knowledge exception, the district court granted appellees’ motion for summary judgment. The Thones appealed to the Nebraska Supreme Court, arguing that the lack of expert testimony is not fatal to their case.

Did the district court err in concluding the Thones had failed to demonstrate the existence of a triable issue of fact as to the negligence of appellees? Specifically, the Thoned argue the district court erred by failing to recognize that (1) appellees’ negligence was so palpable that it could be recognized by laypersons without expert proof under the common-knowledge exception and (2) the statements in Collette’s affidavit and the attached BioEnterics manual provide admissible proof of appellees’ negligence and thereby render expert testimony unnecessary. The Court noted that at the summary judgment stage, it is well settled that such self-supporting affidavits suffice to make a prima facie case that the defendants did not commit medical malpractice. As such, Forney and White’s affidavits shifted the burden to the Thones to provide sufficient evidence to establish a prima facie case of medical malpractice. To make such a case, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm. Discussing each element in turn, the Thones offered no expert testimony, but they attempt to account for this fact by arguing that two exceptions make expert testimony unnecessary for several of their claims.

1.  Common Knowledge Exception. The Thones argued expert testimony was unnecessary to determine whether it was negligent for appellees to wait 5 days before treating Collette because such a delay is so plainly improper that negligence may be inferred under the common-knowledge exception. We address each argument separately. The Court wrote that this common-knowledge exception is limited to cases of extreme and obvious misconduct and they have been reluctant to apply the common-knowledge exception in cases where the alleged professional misconduct was less than obvious without some degree of technical knowledge. The Thones relied on the common-knowledge exception in that appellees left Collette vomiting blood and in excruciating pain for 5 days without taking any action. The Court pointed out that an authoritative treatise on medical malpractice supports this conclusion: “[N]o expert testimony is required in order to show that the failure to attend a patient altogether does not constitute reasonable care when common sense indicates that, without attention, the patient may suffer serious consequences.” David W. Louisell & Harold Williams, Medical Malpractice § 8.05[4] at 8-81 (2007). Pointing to two similar cases in other jurisdictions, the Court held that a layperson could infer that a reasonable physician, acting with the care and skill of other physicians in the community, would not neglect a patient vomiting blood and in severe abdominal pain. “As such, the Thones’ failure to provide expert testimony does not foreclose a finding of negligence with respect to appellees’ alleged failure to promptly diagnose and treat Collette.”

2.  Negligent Treatment and Manufacturer-Instruction Exception. The Thones next argued that expert testimony is unnecessary to set the standard of care for their claims that appellees were negligent in treating and diagnosing Collette’s complications. Here the Thones tried to enter into evidence an instruction manual supplied by BioEnterics, the alleged manufacturer of Collette’s gastric band. They contended this manual is itself the proper standard of care for diagnosing and treating complications related to the band (the manufacturer-instruction exception to expert testimony?). On the theory that reasonable physicians do not deviate from instructions supplied by the manufacturers of drugs or devices, a number of courts hold that even without expert testimony indicating whether the instructions set the standard of care, a physician’s failure to follow those instructions is prima facie evidence of negligence. A minority of courts reject this idea. Because the Thones cannot avoid summary judgment unless they make out a prima facie case of medical malpractice, the Court said the difference between these two views is significant in this case. However, they said they need not choose between these views here, however, because they concluded that the BioEnterics manual is not sufficient to trigger the manufacturer-instruction exception, as the manual primarily related to diagnosing and treating complications involving the gastric band as opposed to more complex medical issues, including the appropriateness of the diagnosis and treatment provided by the treating physician. The Court recognized that treating and diagnosing a patient involves a multitude of variables and extrinsic considerations which make such activities highly complex. “This suggests that a physician’s decisions regarding treatment and diagnosis should not be scrutinized according to a rigid set of black-letter instructions. We therefore conclude that without expert testimony, the BioEnterics manual has no bearing on the standard of care governing appellees’ decisions about how to diagnose and treat Thone’s ailments.” The Thones also relied on the manufacturer-instruction exception for their claim that appellees were negligent in failing to convey the BioEnterics manual’s warnings about the dangers of using nonsteroidal anti-inflammatory drugs (NSAIDs) after the band was installed. However, the Court said the rationale behind the manufacturer-instruction exception is that a reasonable physician would not violate a manufacturer’s specific instructions when using a drug or device. “Even if we were to agree that the manufacturer-instruction exception should apply in the context of patient counseling, we note that the BioEnterics manual does not specifically instruct physicians to warn patients about the risks of combining NSAIDs with gastric bands.”

In sum, the Court ruled that the lack of expert testimony does not preclude the Thones from proving the standard of care with respect to their claim that appellees were negligent in waiting 5 days to treat Collette, pursuant to the common-knowledge exception. However, the BioEnterics manual does not trigger the manufacturer-instruction exception in this case. As such, the lack of expert testimony proves fatal to the Thones’ claims that appellees committed negligence by deviating from the instructions set forth in the BioEnterics manual when attending to Collette’s ailments.

Did the court err in granting summary judgment as there were two other elements of a prima facie case of medical malpractice as they relate to the Thones’ delay-of-treatment claim?

1.  Deviation from standard of care. In discussing medical malpractice claims, some courts make the blanket holding that expert testimony is necessary for all three elements, including the element concerning the defendant’s deviation from the standard of care. The Court acknowledged that it some cases lay person testimony might establish the deviation, they said they need not resolve here whether the ability to establish the deviation element with lay testimony is an exception or the norm. Instead, the Court simply concluded that this case presents a situation in which lay testimony alone is sufficient to show a deviation from the standard of care. As they had already established that a reasonable physician would not leave a patient in severe abdominal distress for 5 days without taking some remedial measures, absent clear justification. Identifying a deviation from this standard would require nothing more than testimony from a witness with personal knowledge as to whether appellees did in fact neglect Collette for 5 days. Here, Collette’s own affidavit asserted that she was neglected by appellees during the 5-day period. Viewing the facts in a light most favorable to the Thones, the nonmoving party, by giving them the benefit of the doubt in factual disputes, the Court held that Collette’s assertions of neglect create a genuine issue of material fact.

2.  Proximate Causation. Appellees offered expert testimony indicating that any acts or omissions of appellees were not the proximate cause of Collette’s injuries. Expert testimony is almost always required to prove proximate causation. Nevertheless, as with the standard of care, the common-knowledge exception applies to proximate causation in professional negligence cases. Thus causation may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. “We note, however, that whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.” Given their total lack of expert testimony in this case, the Thones can only survive summary judgment if the injuries to Collette’s gastrointestinal system so obviously stem from appellees’ alleged 5-day delay in treating her that the causal link may be inferred even by laypersons. Looking to a case from Kansas, the Court ruled that without expert testimony, it would be impossible for a layperson to conclude that Collette’s ultimate injuries were caused specifically by a 5-day delay in treating her. “There is nothing to rebut the suggestion that Collette would have suffered the same amount of harm no matter how diligent appellees had been.” Therefore, despite their ability to satisfy the elements in their prima facie case concerning the standard of care and appellees’ deviation from it, summary judgment was nonetheless appropriate given the Thones’ lack of evidence on the issue of proximate causation.

Conclusion: The Court concluded that the BioEnterics manual does not establish the standard of care and summary judgment was proper for the Thones’ negligence claims based on the alleged failure to follow the manufacturer’s instruction manual. While the Thones raised a genuine question of material fact that appellees’ 5-day delay in treating Collette was negligent under the common-knowledge exception, the Court nonetheless found that their failure to provide expert testimony on the issue of proximate causation is fatal to this claim. AFFIRMED.

Gerrard, J., CONCURRING agreed with the majority regarding the general legal principles applicable to this case and with the affirmance of the district court’s summary judgment. But Justice Gerrard’s review of the record led him to a different analytical framework. The majority opinion identifies the plaintiffs’ two theories of recovery as (1) the “Negligent Treatment” that was allegedly inconsistent with the manufacturer’s instructions and (2) the “5-Day Delay” in treatment after Collette Thone’s symptoms developed. I agree with the majority that the plaintiffs did not present sufficient evidence to sustain either theory. “But I reach that conclusion for different reasons.”


Medical Malpractice, Lay Opinion

Back to ShortCuts

Because we conclude that the Thones’ failure to provide expert testimony on proximate causation is fatal to their claim, we affirm the district court’s grant of summary judgment.

Thone v. Regional West Med. Ctr., 275 Neb. 238 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.

2.  Proof. A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming the evidence went uncontested at trial, would entitle the party to a favorable verdict.

3.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Malpractice:

1.  Physician and Patient: Proof: Proximate Cause. To make a prima facie case of medical malpractice, the plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm.

2.  Physicians and Surgeons:

     a.  Expert Witnesses: Proof. As a general matter, expert testimony is required to identify the applicable standard of care.

     b.  Proximate Cause: Damages. In the medical malpractice context, the element of proximate causation requires proof that the physician’s deviation from the standard of care caused or contributed to the injury or damage to the plaintiff.

3.  Expert Witnesses:

     a.  Causation in professional negligence cases may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. ••• Whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.

     b.  Presumptions. A party can make a prima facie case of professional negligence even without expert testimony in cases where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons.

     c.  Proximate Cause. Expert testimony is almost always required to prove proximate causation.

4.  Testimony: Proof. Lay testimony may suffice to establish a defendant’s deviation from the standard of care.

Date Filed and Case No.: March 14, 2008. No. S-05-1556.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar14/s05-1556.pdf

Court Appealed From: Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.

Attorneys for the Appeal: Brian M. Mumaugh and Gregory R. Piche for Collette Thone and Anthony Thone, appellants. William M. Lamson, Jr., and Molly M. Lukenbill for Regional West Medical Center et al., appellees.

Justices: Heavican, C.J., Wright, Gerrard, McCormack, and Miller-Lerman, JJ.

Participating on Briefs: Connolly, J.

Not Participating: Stephan, J.

Authored By: Heavican, C.J.

Summary: Collette Thone and her husband, Anthony Thone, brought suit against the Regional West Medical Center (RWMC) and Drs. Glen Forney, Jeffrey Holloway, and Thomas White for alleged negligence in treating Collette Thone for complications related to a previously installed gastric band. RWMC and the physicians (collectively appellees). Appellees moved for summary judgment offering in support of their motion, affidavits by Drs. Forney and White, both of whom stated that none of the named defendants had violated the applicable standard of care. The Thones’ responsive evidence consisted of two affidavits: one from Collette herself and one from Collette’s mother. Collette’s affidavit consisted of quoted excerpts from a manual supplied by BioEnterics Corporation (BioEnterics), a manufacturer of gastric bands, immediately followed by Collette’s own commentary explaining how appellees deviated from that particular instruction. A photocopy of the manual was attached to Collette’s affidavit.

Appellees objected to both affidavits, and the district court sustained the objections. Finding that the Thones failed to offer any admissible evidence to support their claim of medical malpractice and that the Thones’ allegations of negligence were not the sort that could be inferred without proof under the so-called common-knowledge exception, the district court granted appellees’ motion for summary judgment. The Thones appealed to the Nebraska Supreme Court, arguing that the lack of expert testimony is not fatal to their case.

Did the district court err in concluding the Thones had failed to demonstrate the existence of a triable issue of fact as to the negligence of appellees? Specifically, the Thoned argue the district court erred by failing to recognize that (1) appellees’ negligence was so palpable that it could be recognized by laypersons without expert proof under the common-knowledge exception and (2) the statements in Collette’s affidavit and the attached BioEnterics manual provide admissible proof of appellees’ negligence and thereby render expert testimony unnecessary. The Court noted that at the summary judgment stage, it is well settled that such self-supporting affidavits suffice to make a prima facie case that the defendants did not commit medical malpractice. As such, Forney and White’s affidavits shifted the burden to the Thones to provide sufficient evidence to establish a prima facie case of medical malpractice. To make such a case, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm. Discussing each element in turn, the Thones offered no expert testimony, but they attempt to account for this fact by arguing that two exceptions make expert testimony unnecessary for several of their claims.

1.  Common Knowledge Exception. The Thones argued expert testimony was unnecessary to determine whether it was negligent for appellees to wait 5 days before treating Collette because such a delay is so plainly improper that negligence may be inferred under the common-knowledge exception. We address each argument separately. The Court wrote that this common-knowledge exception is limited to cases of extreme and obvious misconduct and they have been reluctant to apply the common-knowledge exception in cases where the alleged professional misconduct was less than obvious without some degree of technical knowledge. The Thones relied on the common-knowledge exception in that appellees left Collette vomiting blood and in excruciating pain for 5 days without taking any action. The Court pointed out that an authoritative treatise on medical malpractice supports this conclusion: “[N]o expert testimony is required in order to show that the failure to attend a patient altogether does not constitute reasonable care when common sense indicates that, without attention, the patient may suffer serious consequences.” David W. Louisell & Harold Williams, Medical Malpractice § 8.05[4] at 8-81 (2007). Pointing to two similar cases in other jurisdictions, the Court held that a layperson could infer that a reasonable physician, acting with the care and skill of other physicians in the community, would not neglect a patient vomiting blood and in severe abdominal pain. “As such, the Thones’ failure to provide expert testimony does not foreclose a finding of negligence with respect to appellees’ alleged failure to promptly diagnose and treat Collette.”

2.  Negligent Treatment and Manufacturer-Instruction Exception. The Thones next argued that expert testimony is unnecessary to set the standard of care for their claims that appellees were negligent in treating and diagnosing Collette’s complications. Here the Thones tried to enter into evidence an instruction manual supplied by BioEnterics, the alleged manufacturer of Collette’s gastric band. They contended this manual is itself the proper standard of care for diagnosing and treating complications related to the band (the manufacturer-instruction exception to expert testimony?). On the theory that reasonable physicians do not deviate from instructions supplied by the manufacturers of drugs or devices, a number of courts hold that even without expert testimony indicating whether the instructions set the standard of care, a physician’s failure to follow those instructions is prima facie evidence of negligence. A minority of courts reject this idea. Because the Thones cannot avoid summary judgment unless they make out a prima facie case of medical malpractice, the Court said the difference between these two views is significant in this case. However, they said they need not choose between these views here, however, because they concluded that the BioEnterics manual is not sufficient to trigger the manufacturer-instruction exception, as the manual primarily related to diagnosing and treating complications involving the gastric band as opposed to more complex medical issues, including the appropriateness of the diagnosis and treatment provided by the treating physician. The Court recognized that treating and diagnosing a patient involves a multitude of variables and extrinsic considerations which make such activities highly complex. “This suggests that a physician’s decisions regarding treatment and diagnosis should not be scrutinized according to a rigid set of black-letter instructions. We therefore conclude that without expert testimony, the BioEnterics manual has no bearing on the standard of care governing appellees’ decisions about how to diagnose and treat Thone’s ailments.” The Thones also relied on the manufacturer-instruction exception for their claim that appellees were negligent in failing to convey the BioEnterics manual’s warnings about the dangers of using nonsteroidal anti-inflammatory drugs (NSAIDs) after the band was installed. However, the Court said the rationale behind the manufacturer-instruction exception is that a reasonable physician would not violate a manufacturer’s specific instructions when using a drug or device. “Even if we were to agree that the manufacturer-instruction exception should apply in the context of patient counseling, we note that the BioEnterics manual does not specifically instruct physicians to warn patients about the risks of combining NSAIDs with gastric bands.”

In sum, the Court ruled that the lack of expert testimony does not preclude the Thones from proving the standard of care with respect to their claim that appellees were negligent in waiting 5 days to treat Collette, pursuant to the common-knowledge exception. However, the BioEnterics manual does not trigger the manufacturer-instruction exception in this case. As such, the lack of expert testimony proves fatal to the Thones’ claims that appellees committed negligence by deviating from the instructions set forth in the BioEnterics manual when attending to Collette’s ailments.

Did the court err in granting summary judgment as there were two other elements of a prima facie case of medical malpractice as they relate to the Thones’ delay-of-treatment claim?

1.  Deviation from standard of care. In discussing medical malpractice claims, some courts make the blanket holding that expert testimony is necessary for all three elements, including the element concerning the defendant’s deviation from the standard of care. The Court acknowledged that it some cases lay person testimony might establish the deviation, they said they need not resolve here whether the ability to establish the deviation element with lay testimony is an exception or the norm. Instead, the Court simply concluded that this case presents a situation in which lay testimony alone is sufficient to show a deviation from the standard of care. As they had already established that a reasonable physician would not leave a patient in severe abdominal distress for 5 days without taking some remedial measures, absent clear justification. Identifying a deviation from this standard would require nothing more than testimony from a witness with personal knowledge as to whether appellees did in fact neglect Collette for 5 days. Here, Collette’s own affidavit asserted that she was neglected by appellees during the 5-day period. Viewing the facts in a light most favorable to the Thones, the nonmoving party, by giving them the benefit of the doubt in factual disputes, the Court held that Collette’s assertions of neglect create a genuine issue of material fact.

2.  Proximate Causation. Appellees offered expert testimony indicating that any acts or omissions of appellees were not the proximate cause of Collette’s injuries. Expert testimony is almost always required to prove proximate causation. Nevertheless, as with the standard of care, the common-knowledge exception applies to proximate causation in professional negligence cases. Thus causation may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. “We note, however, that whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.” Given their total lack of expert testimony in this case, the Thones can only survive summary judgment if the injuries to Collette’s gastrointestinal system so obviously stem from appellees’ alleged 5-day delay in treating her that the causal link may be inferred even by laypersons. Looking to a case from Kansas, the Court ruled that without expert testimony, it would be impossible for a layperson to conclude that Collette’s ultimate injuries were caused specifically by a 5-day delay in treating her. “There is nothing to rebut the suggestion that Collette would have suffered the same amount of harm no matter how diligent appellees had been.” Therefore, despite their ability to satisfy the elements in their prima facie case concerning the standard of care and appellees’ deviation from it, summary judgment was nonetheless appropriate given the Thones’ lack of evidence on the issue of proximate causation.

Conclusion: The Court concluded that the BioEnterics manual does not establish the standard of care and summary judgment was proper for the Thones’ negligence claims based on the alleged failure to follow the manufacturer’s instruction manual. While the Thones raised a genuine question of material fact that appellees’ 5-day delay in treating Collette was negligent under the common-knowledge exception, the Court nonetheless found that their failure to provide expert testimony on the issue of proximate causation is fatal to this claim. AFFIRMED.

Gerrard, J., CONCURRING agreed with the majority regarding the general legal principles applicable to this case and with the affirmance of the district court’s summary judgment. But Justice Gerrard’s review of the record led him to a different analytical framework. The majority opinion identifies the plaintiffs’ two theories of recovery as (1) the “Negligent Treatment” that was allegedly inconsistent with the manufacturer’s instructions and (2) the “5-Day Delay” in treatment after Collette Thone’s symptoms developed. I agree with the majority that the plaintiffs did not present sufficient evidence to sustain either theory. “But I reach that conclusion for different reasons.”


Medical Malpractice, Negligent Treatment and Manufacturer-Instruction Exception

Back to ShortCuts

Because we conclude that the Thones’ failure to provide expert testimony on proximate causation is fatal to their claim, we affirm the district court’s grant of summary judgment.

Thone v. Regional West Med. Ctr., 275 Neb. 238 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.

2.  Proof. A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming the evidence went uncontested at trial, would entitle the party to a favorable verdict.

3.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Malpractice:

1.  Physician and Patient: Proof: Proximate Cause. To make a prima facie case of medical malpractice, the plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm.

2.  Physicians and Surgeons:

     a.  Expert Witnesses: Proof. As a general matter, expert testimony is required to identify the applicable standard of care.

     b.  Proximate Cause: Damages. In the medical malpractice context, the element of proximate causation requires proof that the physician’s deviation from the standard of care caused or contributed to the injury or damage to the plaintiff.

3.  Expert Witnesses:

     a.  Causation in professional negligence cases may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. ••• Whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.

     b.  Presumptions. A party can make a prima facie case of professional negligence even without expert testimony in cases where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons.

     c.  Proximate Cause. Expert testimony is almost always required to prove proximate causation.

4.  Testimony: Proof. Lay testimony may suffice to establish a defendant’s deviation from the standard of care.

Date Filed and Case No.: March 14, 2008. No. S-05-1556.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar14/s05-1556.pdf

Court Appealed From: Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.

Attorneys for the Appeal: Brian M. Mumaugh and Gregory R. Piche for Collette Thone and Anthony Thone, appellants. William M. Lamson, Jr., and Molly M. Lukenbill for Regional West Medical Center et al., appellees.

Justices: Heavican, C.J., Wright, Gerrard, McCormack, and Miller-Lerman, JJ.

Participating on Briefs: Connolly, J.

Not Participating: Stephan, J.

Authored By: Heavican, C.J.

Summary: Collette Thone and her husband, Anthony Thone, brought suit against the Regional West Medical Center (RWMC) and Drs. Glen Forney, Jeffrey Holloway, and Thomas White for alleged negligence in treating Collette Thone for complications related to a previously installed gastric band. RWMC and the physicians (collectively appellees). Appellees moved for summary judgment offering in support of their motion, affidavits by Drs. Forney and White, both of whom stated that none of the named defendants had violated the applicable standard of care. The Thones’ responsive evidence consisted of two affidavits: one from Collette herself and one from Collette’s mother. Collette’s affidavit consisted of quoted excerpts from a manual supplied by BioEnterics Corporation (BioEnterics), a manufacturer of gastric bands, immediately followed by Collette’s own commentary explaining how appellees deviated from that particular instruction. A photocopy of the manual was attached to Collette’s affidavit.

Appellees objected to both affidavits, and the district court sustained the objections. Finding that the Thones failed to offer any admissible evidence to support their claim of medical malpractice and that the Thones’ allegations of negligence were not the sort that could be inferred without proof under the so-called common-knowledge exception, the district court granted appellees’ motion for summary judgment. The Thones appealed to the Nebraska Supreme Court, arguing that the lack of expert testimony is not fatal to their case.

Did the district court err in concluding the Thones had failed to demonstrate the existence of a triable issue of fact as to the negligence of appellees? Specifically, the Thoned argue the district court erred by failing to recognize that (1) appellees’ negligence was so palpable that it could be recognized by laypersons without expert proof under the common-knowledge exception and (2) the statements in Collette’s affidavit and the attached BioEnterics manual provide admissible proof of appellees’ negligence and thereby render expert testimony unnecessary. The Court noted that at the summary judgment stage, it is well settled that such self-supporting affidavits suffice to make a prima facie case that the defendants did not commit medical malpractice. As such, Forney and White’s affidavits shifted the burden to the Thones to provide sufficient evidence to establish a prima facie case of medical malpractice. To make such a case, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm. Discussing each element in turn, the Thones offered no expert testimony, but they attempt to account for this fact by arguing that two exceptions make expert testimony unnecessary for several of their claims.

1.  Common Knowledge Exception. The Thones argued expert testimony was unnecessary to determine whether it was negligent for appellees to wait 5 days before treating Collette because such a delay is so plainly improper that negligence may be inferred under the common-knowledge exception. We address each argument separately. The Court wrote that this common-knowledge exception is limited to cases of extreme and obvious misconduct and they have been reluctant to apply the common-knowledge exception in cases where the alleged professional misconduct was less than obvious without some degree of technical knowledge. The Thones relied on the common-knowledge exception in that appellees left Collette vomiting blood and in excruciating pain for 5 days without taking any action. The Court pointed out that an authoritative treatise on medical malpractice supports this conclusion: “[N]o expert testimony is required in order to show that the failure to attend a patient altogether does not constitute reasonable care when common sense indicates that, without attention, the patient may suffer serious consequences.” David W. Louisell & Harold Williams, Medical Malpractice § 8.05[4] at 8-81 (2007). Pointing to two similar cases in other jurisdictions, the Court held that a layperson could infer that a reasonable physician, acting with the care and skill of other physicians in the community, would not neglect a patient vomiting blood and in severe abdominal pain. “As such, the Thones’ failure to provide expert testimony does not foreclose a finding of negligence with respect to appellees’ alleged failure to promptly diagnose and treat Collette.”

2.  Negligent Treatment and Manufacturer-Instruction Exception. The Thones next argued that expert testimony is unnecessary to set the standard of care for their claims that appellees were negligent in treating and diagnosing Collette’s complications. Here the Thones tried to enter into evidence an instruction manual supplied by BioEnterics, the alleged manufacturer of Collette’s gastric band. They contended this manual is itself the proper standard of care for diagnosing and treating complications related to the band (the manufacturer-instruction exception to expert testimony?). On the theory that reasonable physicians do not deviate from instructions supplied by the manufacturers of drugs or devices, a number of courts hold that even without expert testimony indicating whether the instructions set the standard of care, a physician’s failure to follow those instructions is prima facie evidence of negligence. A minority of courts reject this idea. Because the Thones cannot avoid summary judgment unless they make out a prima facie case of medical malpractice, the Court said the difference between these two views is significant in this case. However, they said they need not choose between these views here, however, because they concluded that the BioEnterics manual is not sufficient to trigger the manufacturer-instruction exception, as the manual primarily related to diagnosing and treating complications involving the gastric band as opposed to more complex medical issues, including the appropriateness of the diagnosis and treatment provided by the treating physician. The Court recognized that treating and diagnosing a patient involves a multitude of variables and extrinsic considerations which make such activities highly complex. “This suggests that a physician’s decisions regarding treatment and diagnosis should not be scrutinized according to a rigid set of black-letter instructions. We therefore conclude that without expert testimony, the BioEnterics manual has no bearing on the standard of care governing appellees’ decisions about how to diagnose and treat Thone’s ailments.” The Thones also relied on the manufacturer-instruction exception for their claim that appellees were negligent in failing to convey the BioEnterics manual’s warnings about the dangers of using nonsteroidal anti-inflammatory drugs (NSAIDs) after the band was installed. However, the Court said the rationale behind the manufacturer-instruction exception is that a reasonable physician would not violate a manufacturer’s specific instructions when using a drug or device. “Even if we were to agree that the manufacturer-instruction exception should apply in the context of patient counseling, we note that the BioEnterics manual does not specifically instruct physicians to warn patients about the risks of combining NSAIDs with gastric bands.”

In sum, the Court ruled that the lack of expert testimony does not preclude the Thones from proving the standard of care with respect to their claim that appellees were negligent in waiting 5 days to treat Collette, pursuant to the common-knowledge exception. However, the BioEnterics manual does not trigger the manufacturer-instruction exception in this case. As such, the lack of expert testimony proves fatal to the Thones’ claims that appellees committed negligence by deviating from the instructions set forth in the BioEnterics manual when attending to Collette’s ailments.

Did the court err in granting summary judgment as there were two other elements of a prima facie case of medical malpractice as they relate to the Thones’ delay-of-treatment claim?

1.  Deviation from standard of care. In discussing medical malpractice claims, some courts make the blanket holding that expert testimony is necessary for all three elements, including the element concerning the defendant’s deviation from the standard of care. The Court acknowledged that it some cases lay person testimony might establish the deviation, they said they need not resolve here whether the ability to establish the deviation element with lay testimony is an exception or the norm. Instead, the Court simply concluded that this case presents a situation in which lay testimony alone is sufficient to show a deviation from the standard of care. As they had already established that a reasonable physician would not leave a patient in severe abdominal distress for 5 days without taking some remedial measures, absent clear justification. Identifying a deviation from this standard would require nothing more than testimony from a witness with personal knowledge as to whether appellees did in fact neglect Collette for 5 days. Here, Collette’s own affidavit asserted that she was neglected by appellees during the 5-day period. Viewing the facts in a light most favorable to the Thones, the nonmoving party, by giving them the benefit of the doubt in factual disputes, the Court held that Collette’s assertions of neglect create a genuine issue of material fact.

2.  Proximate Causation. Appellees offered expert testimony indicating that any acts or omissions of appellees were not the proximate cause of Collette’s injuries. Expert testimony is almost always required to prove proximate causation. Nevertheless, as with the standard of care, the common-knowledge exception applies to proximate causation in professional negligence cases. Thus causation may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. “We note, however, that whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.” Given their total lack of expert testimony in this case, the Thones can only survive summary judgment if the injuries to Collette’s gastrointestinal system so obviously stem from appellees’ alleged 5-day delay in treating her that the causal link may be inferred even by laypersons. Looking to a case from Kansas, the Court ruled that without expert testimony, it would be impossible for a layperson to conclude that Collette’s ultimate injuries were caused specifically by a 5-day delay in treating her. “There is nothing to rebut the suggestion that Collette would have suffered the same amount of harm no matter how diligent appellees had been.” Therefore, despite their ability to satisfy the elements in their prima facie case concerning the standard of care and appellees’ deviation from it, summary judgment was nonetheless appropriate given the Thones’ lack of evidence on the issue of proximate causation.

Conclusion: The Court concluded that the BioEnterics manual does not establish the standard of care and summary judgment was proper for the Thones’ negligence claims based on the alleged failure to follow the manufacturer’s instruction manual. While the Thones raised a genuine question of material fact that appellees’ 5-day delay in treating Collette was negligent under the common-knowledge exception, the Court nonetheless found that their failure to provide expert testimony on the issue of proximate causation is fatal to this claim. AFFIRMED.

Gerrard, J., CONCURRING agreed with the majority regarding the general legal principles applicable to this case and with the affirmance of the district court’s summary judgment. But Justice Gerrard’s review of the record led him to a different analytical framework. The majority opinion identifies the plaintiffs’ two theories of recovery as (1) the “Negligent Treatment” that was allegedly inconsistent with the manufacturer’s instructions and (2) the “5-Day Delay” in treatment after Collette Thone’s symptoms developed. I agree with the majority that the plaintiffs did not present sufficient evidence to sustain either theory. “But I reach that conclusion for different reasons.”


Medical Malpractice, Proximate Cause

Back to ShortCuts

Because we conclude that the Thones’ failure to provide expert testimony on proximate causation is fatal to their claim, we affirm the district court’s grant of summary judgment.

Thone v. Regional West Med. Ctr., 275 Neb. 238 (2008)

Supreme Court Headnotes

Summary Judgment.

1.  Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show that there is no genuine issue as to any material facts 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.

2.  Proof. A party makes a prima facie case that it is entitled to summary judgment by offering sufficient evidence that, assuming the evidence went uncontested at trial, would entitle the party to a favorable verdict.

3.  Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.

Judgments:

1.  Appeal and Error. On questions of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

Malpractice:

1.  Physician and Patient: Proof: Proximate Cause. To make a prima facie case of medical malpractice, the plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm.

2.  Physicians and Surgeons:

     a.  Expert Witnesses: Proof. As a general matter, expert testimony is required to identify the applicable standard of care.

     b.  Proximate Cause: Damages. In the medical malpractice context, the element of proximate causation requires proof that the physician’s deviation from the standard of care caused or contributed to the injury or damage to the plaintiff.

3.  Expert Witnesses:

     a.  Causation in professional negligence cases may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. ••• Whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.

     b.  Presumptions. A party can make a prima facie case of professional negligence even without expert testimony in cases where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laypersons.

     c.  Proximate Cause. Expert testimony is almost always required to prove proximate causation.

4.  Testimony: Proof. Lay testimony may suffice to establish a defendant’s deviation from the standard of care.

Date Filed and Case No.: March 14, 2008. No. S-05-1556.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/march/mar14/s05-1556.pdf

Court Appealed From: Appeal from the District Court for Scotts Bluff County: Randall L. Lippstreu, Judge. Affirmed.

Attorneys for the Appeal: Brian M. Mumaugh and Gregory R. Piche for Collette Thone and Anthony Thone, appellants. William M. Lamson, Jr., and Molly M. Lukenbill for Regional West Medical Center et al., appellees.

Justices: Heavican, C.J., Wright, Gerrard, McCormack, and Miller-Lerman, JJ.

Participating on Briefs: Connolly, J.

Not Participating: Stephan, J.

Authored By: Heavican, C.J.

Summary: Collette Thone and her husband, Anthony Thone, brought suit against the Regional West Medical Center (RWMC) and Drs. Glen Forney, Jeffrey Holloway, and Thomas White for alleged negligence in treating Collette Thone for complications related to a previously installed gastric band. RWMC and the physicians (collectively appellees). Appellees moved for summary judgment offering in support of their motion, affidavits by Drs. Forney and White, both of whom stated that none of the named defendants had violated the applicable standard of care. The Thones’ responsive evidence consisted of two affidavits: one from Collette herself and one from Collette’s mother. Collette’s affidavit consisted of quoted excerpts from a manual supplied by BioEnterics Corporation (BioEnterics), a manufacturer of gastric bands, immediately followed by Collette’s own commentary explaining how appellees deviated from that particular instruction. A photocopy of the manual was attached to Collette’s affidavit.

Appellees objected to both affidavits, and the district court sustained the objections. Finding that the Thones failed to offer any admissible evidence to support their claim of medical malpractice and that the Thones’ allegations of negligence were not the sort that could be inferred without proof under the so-called common-knowledge exception, the district court granted appellees’ motion for summary judgment. The Thones appealed to the Nebraska Supreme Court, arguing that the lack of expert testimony is not fatal to their case.

Did the district court err in concluding the Thones had failed to demonstrate the existence of a triable issue of fact as to the negligence of appellees? Specifically, the Thoned argue the district court erred by failing to recognize that (1) appellees’ negligence was so palpable that it could be recognized by laypersons without expert proof under the common-knowledge exception and (2) the statements in Collette’s affidavit and the attached BioEnterics manual provide admissible proof of appellees’ negligence and thereby render expert testimony unnecessary. The Court noted that at the summary judgment stage, it is well settled that such self-supporting affidavits suffice to make a prima facie case that the defendants did not commit medical malpractice. As such, Forney and White’s affidavits shifted the burden to the Thones to provide sufficient evidence to establish a prima facie case of medical malpractice. To make such a case, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff’s harm. Discussing each element in turn, the Thones offered no expert testimony, but they attempt to account for this fact by arguing that two exceptions make expert testimony unnecessary for several of their claims.

1.  Common Knowledge Exception. The Thones argued expert testimony was unnecessary to determine whether it was negligent for appellees to wait 5 days before treating Collette because such a delay is so plainly improper that negligence may be inferred under the common-knowledge exception. We address each argument separately. The Court wrote that this common-knowledge exception is limited to cases of extreme and obvious misconduct and they have been reluctant to apply the common-knowledge exception in cases where the alleged professional misconduct was less than obvious without some degree of technical knowledge. The Thones relied on the common-knowledge exception in that appellees left Collette vomiting blood and in excruciating pain for 5 days without taking any action. The Court pointed out that an authoritative treatise on medical malpractice supports this conclusion: “[N]o expert testimony is required in order to show that the failure to attend a patient altogether does not constitute reasonable care when common sense indicates that, without attention, the patient may suffer serious consequences.” David W. Louisell & Harold Williams, Medical Malpractice § 8.05[4] at 8-81 (2007). Pointing to two similar cases in other jurisdictions, the Court held that a layperson could infer that a reasonable physician, acting with the care and skill of other physicians in the community, would not neglect a patient vomiting blood and in severe abdominal pain. “As such, the Thones’ failure to provide expert testimony does not foreclose a finding of negligence with respect to appellees’ alleged failure to promptly diagnose and treat Collette.”

2.  Negligent Treatment and Manufacturer-Instruction Exception. The Thones next argued that expert testimony is unnecessary to set the standard of care for their claims that appellees were negligent in treating and diagnosing Collette’s complications. Here the Thones tried to enter into evidence an instruction manual supplied by BioEnterics, the alleged manufacturer of Collette’s gastric band. They contended this manual is itself the proper standard of care for diagnosing and treating complications related to the band (the manufacturer-instruction exception to expert testimony?). On the theory that reasonable physicians do not deviate from instructions supplied by the manufacturers of drugs or devices, a number of courts hold that even without expert testimony indicating whether the instructions set the standard of care, a physician’s failure to follow those instructions is prima facie evidence of negligence. A minority of courts reject this idea. Because the Thones cannot avoid summary judgment unless they make out a prima facie case of medical malpractice, the Court said the difference between these two views is significant in this case. However, they said they need not choose between these views here, however, because they concluded that the BioEnterics manual is not sufficient to trigger the manufacturer-instruction exception, as the manual primarily related to diagnosing and treating complications involving the gastric band as opposed to more complex medical issues, including the appropriateness of the diagnosis and treatment provided by the treating physician. The Court recognized that treating and diagnosing a patient involves a multitude of variables and extrinsic considerations which make such activities highly complex. “This suggests that a physician’s decisions regarding treatment and diagnosis should not be scrutinized according to a rigid set of black-letter instructions. We therefore conclude that without expert testimony, the BioEnterics manual has no bearing on the standard of care governing appellees’ decisions about how to diagnose and treat Thone’s ailments.” The Thones also relied on the manufacturer-instruction exception for their claim that appellees were negligent in failing to convey the BioEnterics manual’s warnings about the dangers of using nonsteroidal anti-inflammatory drugs (NSAIDs) after the band was installed. However, the Court said the rationale behind the manufacturer-instruction exception is that a reasonable physician would not violate a manufacturer’s specific instructions when using a drug or device. “Even if we were to agree that the manufacturer-instruction exception should apply in the context of patient counseling, we note that the BioEnterics manual does not specifically instruct physicians to warn patients about the risks of combining NSAIDs with gastric bands.”

In sum, the Court ruled that the lack of expert testimony does not preclude the Thones from proving the standard of care with respect to their claim that appellees were negligent in waiting 5 days to treat Collette, pursuant to the common-knowledge exception. However, the BioEnterics manual does not trigger the manufacturer-instruction exception in this case. As such, the lack of expert testimony proves fatal to the Thones’ claims that appellees committed negligence by deviating from the instructions set forth in the BioEnterics manual when attending to Collette’s ailments.

Did the court err in granting summary judgment as there were two other elements of a prima facie case of medical malpractice as they relate to the Thones’ delay-of-treatment claim?

1.  Deviation from standard of care. In discussing medical malpractice claims, some courts make the blanket holding that expert testimony is necessary for all three elements, including the element concerning the defendant’s deviation from the standard of care. The Court acknowledged that it some cases lay person testimony might establish the deviation, they said they need not resolve here whether the ability to establish the deviation element with lay testimony is an exception or the norm. Instead, the Court simply concluded that this case presents a situation in which lay testimony alone is sufficient to show a deviation from the standard of care. As they had already established that a reasonable physician would not leave a patient in severe abdominal distress for 5 days without taking some remedial measures, absent clear justification. Identifying a deviation from this standard would require nothing more than testimony from a witness with personal knowledge as to whether appellees did in fact neglect Collette for 5 days. Here, Collette’s own affidavit asserted that she was neglected by appellees during the 5-day period. Viewing the facts in a light most favorable to the Thones, the nonmoving party, by giving them the benefit of the doubt in factual disputes, the Court held that Collette’s assertions of neglect create a genuine issue of material fact.

2.  Proximate Causation. Appellees offered expert testimony indicating that any acts or omissions of appellees were not the proximate cause of Collette’s injuries. Expert testimony is almost always required to prove proximate causation. Nevertheless, as with the standard of care, the common-knowledge exception applies to proximate causation in professional negligence cases. Thus causation may be inferred without expert testimony if the causal link between the defendant’s negligence and the plaintiff’s injuries is sufficiently obvious to laypersons. “We note, however, that whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons.” Given their total lack of expert testimony in this case, the Thones can only survive summary judgment if the injuries to Collette’s gastrointestinal system so obviously stem from appellees’ alleged 5-day delay in treating her that the causal link may be inferred even by laypersons. Looking to a case from Kansas, the Court ruled that without expert testimony, it would be impossible for a layperson to conclude that Collette’s ultimate injuries were caused specifically by a 5-day delay in treating her. “There is nothing to rebut the suggestion that Collette would have suffered the same amount of harm no matter how diligent appellees had been.” Therefore, despite their ability to satisfy the elements in their prima facie case concerning the standard of care and appellees’ deviation from it, summary judgment was nonetheless appropriate given the Thones’ lack of evidence on the issue of proximate causation.

Conclusion: The Court concluded that the BioEnterics manual does not establish the standard of care and summary judgment was proper for the Thones’ negligence claims based on the alleged failure to follow the manufacturer’s instruction manual. While the Thones raised a genuine question of material fact that appellees’ 5-day delay in treating Collette was negligent under the common-knowledge exception, the Court nonetheless found that their failure to provide expert testimony on the issue of proximate causation is fatal to this claim. AFFIRMED.

Gerrard, J., CONCURRING agreed with the majority regarding the general legal principles applicable to this case and with the affirmance of the district court’s summary judgment. But Justice Gerrard’s review of the record led him to a different analytical framework. The majority opinion identifies the plaintiffs’ two theories of recovery as (1) the “Negligent Treatment” that was allegedly inconsistent with the manufacturer’s instructions and (2) the “5-Day Delay” in treatment after Collette Thone’s symptoms developed. I agree with the majority that the plaintiffs did not present sufficient evidence to sustain either theory. “But I reach that conclusion for different reasons.”