Nebraska Supreme Court declines to allow pain and suffering damages for intentional or negligent misrepresentation. Estate had sued nurses for misrepresenting decedent's suffering while under its hospice care. While the trial court erred when it excluded the plaintiff's expert witness who would testify that improper medications led to the decedent's increased pain, the error was harmless. Tolliver v. Visiting Nurse Assn., S-08-357, 278 Neb. 532 The estate asks this court to adopt the Restatement (Second) of Torts § 557A. It contends that adopting § 557A would allow a party who is physically harmed by a defendant’s misrepresentation to recover non-economic damages. In addition, the estate claims that the trial court erred in excluding the testimony of one of its medical experts. We decline to adopt § 557A because the damages the estate seeks were available under its negligence theory. We further conclude that the excluded expert testimony was cumulative to other experts’ testimony. We affirm.

In mandamus action former physician who was a defendant in a medical malpractice lawsuit sought to prohibit the Dawes County District Court from allowing plaintiff to review materials the Nebraska Attorney General had obtained in its disciplinary action against him. The doctor had surrendered his license for sexual misconduct while the malpractice suit stemmed from an allegedly botched diagnosis of a spinal cord injury. The plaintiff argued that discovery was necessary because she may have been injured because the pervert doctor might have been turned on too much to give her good care. The Nebraska Supreme Court denies the doctors writ of mandamus and allows discovery of the disciplinary investigation to proceed. Stetson v. Silverman, S-09-209, 278 Neb. 389 "We conclude that the relators (the defendant doctor) have failed to meet their burden of showing clearly and convincingly that they are entitled to quash discovery of information regarding defendant's surrender of his license. In addition, they do not have standing to quash a subpoena directed at the Department to obtain its records. We therefore deny their request for a peremptory writ of mandamus ordering the district judge to vacate his discovery order."

Thanks Licensing Board: From Dan Ullman, President of Nebraska Psychological Association his letter to the editor in the Journalstar on August 5, 2009:

The Nebraska Psychological Association expresses its appreciation on the part of the licensing boards for psychology and mental health practice in resisting an attempt to discriminate against vulnerable clients in providing mental health services or referrals for services. The focus of this attempt to prevent clinical services includes sexual orientation, religion, gender identity or other reasons based on any provider's claim of a "moral and religious conviction."

Most disturbing is the continuing attempt by the Department of Health and Human Services to coerce licensing boards to establish this discrimination regulation by placing on hold for 18 months needed changes approved by the boards ("Agency urges compromise," July 19, LJS).

Newspaper articles have emphasized Health and Human Services' attempt to discriminate against services to homosexuals. Not mentioned is the proposed discrimination policy against other clients on the basis of a provider's claim of a "moral or religious conviction."

The Nebraska Psychological Association's Code of Ethics protects the rights, welfare and safety of all clients, not just those who belong to any particular personal orientation. The code mandate is "Do No Harm;" it is not to protect the prejudices of providers.

Under the current Code of Ethics, if a mental health provider is unable to provide services, the provider must refer services in the terms of behavioral health needs of clients, not the needs or prejudices of a provider.

Dan Ullman, president, Nebraska Psychological Association

I couldnt agree more but I dont think Dr Ullman goes far enough so I sent the NPA my suggestions to elminate all homophobia from the psychological profession: How commendable of Dr Ullman for putting homosexual patients ahead of the "conscience" of those psychological professionals who would refuse to treat them. As you know "conscience" for these fanatic religious practitioners really means their freedom to be fearful, ignorant and hateful. However I am afraid that merely removing "conscience" rules from professional licensing standards does not go far enough to ensure the highest professional standards in your field. No, you have to also eliminate the hate from the profession. After all how to do ensure that some psychologists who harbor bigoted thoughts about homosexuality would not take on homosexuals' cases with the intention of harming them, or horrors trying to convert them to heterosexuality? I urge the Nebraska Psychological Association if you have not already, to recommend the following rules: 1. licensed psychologists must sign affidavits when applying for a license or renewing one that they fully embrace homosexuality as a healthy and in some respects a superior lifestyle to traditional marriage. They should encourage youngsters to discover their sexuality as early as possible. 2. psychologists must register which churches they attend and allow licensing boards to review the teachings of those churches to identify any latent or obvious homophobic messages. 3. In cases when homosexuals allege , they could discover from the professionals computers, diaries, notes and writings anything that questions homosexuality. 4. Psychologists who might harbor bigoted and outdated views on homosexuality or traditional marriage would have to undergo graduated probationary educational programs to purge themselves of these views. In case when the professional refuses to distance himself from actual homophobic views or churches that preach this hate, they should face discipline. Again thank you for your efforts to eliminate hate from our society. After all we can learn a lot from brave leaders like Hitler and Mao. They knew you had to go after the educated professions first before enslaving the masses

Legal malpractice lawsuit against estate of deceased patent attorney returns to the Nebraska Supreme Court after the Court had rejected the estate's District Court ruling that the plaintiff would not have won a patent infringement suit if the attorney had timely renewed its patent for a tilling device. The Douglas County District Court on remand again ruled for the attorney's estate, this time finding the plaintiff could not win a patent infringement suit because its limited patent claims would estop a patent suit. Nebraska Supreme Court this time affirms summary judgment finding that the US Supreme Court's Festo decision applied and the plaintiff's hypothetical patent lawsuit would not win because the plaintiff would not be able to overcome a patent defendant's prosecution estoppel defense. New Tek Mfg. v. Beehner, S-06-783, 275 Neb. 951 "In this case, the single two-way hydraulic cylinder claim originally asserted as claim 3 was canceled, but the two-cylinder lever-pivoting means originally asserted as claim 4 was retained in the amended application. The drawings incorporated in the ’365 patent and the ’080 patent reflect only the two-cylinder means. Element 4, claim 22, of the ’080 patent, as construed by the district court in its Markman order, describes only a device utilizing two hydraulic cylinders as lever-pivoting means. We conclude that the rejected claim 3 of the original application was replaced by a narrowing claim which may trigger prosecution history estoppel as a legal limitation on the doctrine of equivalents. We conclude as a matter of law that none of the rebuttal criteria identified in Festo II and explained further in Festo III are met in this case. The first criterion is not met because it cannot be said that the claimed equivalent was unforeseeable at the time of the narrowing amendment. The claimed means consisting of a single two-way hydraulic cylinder was canceled in response to a prior art objection. As we noted in New Tek I, there is no evidence that the alleged equivalent is “after-arising technology.”56 The second criterion is not met because the amendment to claim 3 was made to avoid prior art that contained the equivalent in question, and thus it is not tangential, but is central to the allowance of the claim.57 The third criterion is not met because the =claim for the single two-way hydraulic cylinder was rejected on the basis of prior art; there can be no other reason that Schmidt could not have described the accused equivalent

Nebraska Supreme Court allows expert in a medical malpractice case related to delayed treatment of a spinal cord injury to testify in his affidavit that had the defendant doctors not delayed diagnosing and treating the plaintiff's injury the plaintiff more likely than not would have experienced a better outcome from treatment. The Supreme Court distinguishes this proper opinion that a better outcome would result from giving improper opinions that the plaintiff lost a chance to recover. Rankin v. Stetson, S-07-073, 275 Neb. 775 an opinion framed in terms of loss of chance would not sustain Rankin’s burden of establishing that the defendants proximately caused her injury. We also note that Nebraska has not recognized the loss-of-chance doctrine. See Steineke v. Share Health Plan of Neb., 246 Neb. 374, 518 N.W.2d 904 (1994). Gross’ statements that Rankin would have had a “better prognosis” and a “chance of avoiding permanent neurological injury” do not equate with an opinion that it was more likely than not that Rankin would have had a better outcome if she had undergone surgery immediately following her injury. Opinions dealing with proximate causation are required to be given in terms that express a probability greater than 50 percent. Thus, Gross’ statements do not establish the required certainty to prove causation. While a 49-percent chance of a better recovery may be medically significant, it does not meet the legal requirements for proof of causation. The terms “chance” and “prognosis” by definition do not establish the certainty of proof that is required. On the other hand, an opinion expressed in terms that it is more likely than not that a plaintiff “would have had a better outcome” is sufficiently certain to establish causation. A better outcome is not the same as a chance of a better outcome. Rather, it is a definite result. In this case, there were statements within Gross’ affidavit that were sufficient to establish causation. When reviewing a summary judgment, we view Gross’ affidavit in a light most favorable to Rankin and give her the benefit of all reasonable inferences from such evidence. Contrary to the defendants’ assertion, Gross’ affidavit espoused more than a mere “loss of chance.” Gross opined that early surgical decompression of the spinal cord would more likely than not have led to an improved outcome for Rankin. This evidence established causation for the purpose of opposing the defendants’ motion for summary judgment on such issue. Thus, Gross’ affidavit satisfied the requirement that Rankin produce some expert testimony to establish that the actions or inactions of the defendants were a proximate cause of Rankin’s injury. Nebraska Advance Sheets Ran kin v. Stetson 787 Cite as 275 Neb. 775

Nebraska Supreme Court reverses accounting malpractice verdict that was against accountant in 1031 exchange dispute. Frank v. Lockwood, S-06-731, 275 Neb. 735 A Western Nebraska businessman sued his accountant after he sold some real estate but decided not to escrow the entire sale amount for a section 1031 exchange for other property. The accountant earlier advised him that he would be able to offset some of his gain from the real estate sales with his corporation's losses. The businessman was not able to offset the real estate sale income. The IRS gave the plaintiff an extension to file his tax return until October at the accountant's request but the accountant failed to advise the businessman to pay estimated taxes by the regular April 15 due date. The businessman incurred substantial penalties and interest because he did not file and pay his return until December, almost 2 months later than the extended due date. The Scotts Bluff County District Court jury awarded the businessman a verdict of $37000, all of his IRS penalties and interest. Nebraska Supreme Court reverses, holding the plaintiff businessman failed to prove that the IRS interest payment damaged him. The plaintiff should have proven that he could not have borrowed the unpaid tax amount at a rate lower than the IRS rate. While the Nebraska Supreme Court upholds the verdict for the IRS penalties, the court sends it back to the District Court to determine and award only for penalties related to failing to pay the taxes. Justice Connolly dissents. Frank v. Lockwood, S-06-731, 275 Neb. 735 The plaintiff's failure to file the return on time is not the accountant's fault. The penalties incurred by the Franks in this case appear to have been of two types—those incurred because the Franks failed to pay taxes when due on April 15, 2002, and those incurred because the Franks failed to file their returns when due as extended to October 15. Under federal law, I.R.C. § 6651 (2000) provides in subsection (a)(1) that a taxpayer may be assessed a penalty for failure to timely file a return and provides in subsection (a)(2) that a taxpayer may be assessed a separate penalty for failure to timely pay taxes due. In addition, I.R.C. § 6654 (2000) provides that penalties may be assessed for underpayment of estimated taxes. Nebraska law provides for similar penalties for failure to timely file returns, Neb. Rev. Stat. § 77-2789 (Reissue 2003), and for underpayment of estimated taxes, 316 Neb. Admin. Code, ch. 20, § 007 (1998). there was sufficient evidence from which the jury could find that L ockwood was negligent in failing to advise the Franks to pay an estimate of their 2001 tax liability on April 15, 2002. the district court did not err in denying L ockwood’s motion for judgment notwithstanding the verdict with respect to any portion of the damages award that was attributable to penalties for the Franks’ failure to timely pay taxes.to the extent such penalties are penalties for failure to timely file returns, under the facts of this case, they are not recoverable as damages. However, to the extent such penalties are penalties for failure to timely pay the taxes, under the facts of this case, they are recoverable as damages. Because the evidence in the record does not allow us to determine what portion of the penalties are for late payment of the taxes which are recoverable, we find it necessary to remand this cause to the district court for a new trial limited to a determination of the portion of damages attributable to penalties imposed for failure to timely pay taxes and, upon a proper showing, awarding the Franks an amount of damages equal to penalties for failure to timely pay taxes.

During a dental malpractice trial in Gage county district court the judge kept a trial schedule so tight that the jury heard the entire case in one week with over sixty hours of trial time. Malchow v. Doyle, S-06-219, 275 Neb. 530The jury verdict went to the dentist and the plaintiff appealed claiming the grueling trial schedule and possible juror misconduct prejudiced the plaintiff. Nebraska Supreme Court finds no abuse of discretion in the lengthy court sessions and no juror misconduct after it refused to admit affidavits from jurors who claimed the foreman was injecting his own legal standards of proof into the case. The Supreme Court did modify the court's discovery sanction against the defendant to remove the plaintiff's expert's extra costs to prepare for testimony when the defendant delayed submitting discovery materials. "the trial was conducted over a 5-day period and 62 hours were devoted to the trial. T he record does not show that either party was restricted in the presentation of its evidence. Malchow has not demonstrated that she was prejudiced in presenting her case based on the length of each trial day, and she is not entitled to an inference that the jury resented her because of the length of the trial. We conclude that the district court did not arbitrarily place time limits on either party or restrict the presentation of evidence. Thus, the court did not abuse its discretion in overruling any motions for mistrial on the basis of the conduct of the trial." juror’s knowledge about the burden of proof is personal knowledge that is not directly related to the litigation at issue and is not extraneous information. Doyle did not pay certain specified fees to Miloro in advance as agreed upon, which resulted in the deposition’s being canceled. We conclude that the district court abused its discretion in ordering Doyle to pay the $6,000 charged by Miloro as compensation for time he spent preparing for the deposition. Whether Miloro needed to spend 12 additional hours to prepare for a 2-hour discovery deposition by Doyle is not the question, but, rather, whether Doyle should have been ordered to pay such charges. We conclude that the district court’s order on this issue was in error.

Legal malpractice expert witness who is retired judge criticized the defendant's handling of the case but forgot to state her legal work did not meet the standard of care, summary judgment affirmed. Wolski v. Wandel, S-06-1039, 275 Neb. 266Mentally disabled adult sued his former attorney for obtaining an unfavorable settlement in a declaratory judgment action regarding Cass County farm ground that his parents had deeded to him and later to another person ambiguously identified as a "trustee." The plaintiff's attorney negotiated a settlement for the disabled client to have a life estate. Later the plaintiff sued his former attorney for malpractice. The court granted the attorney's motion for summary judgment based on the depositions of the defendant and an experienced probate and estate attorney that she met the standard of care. The District Court granted summary judgment for the defendant attorney. Nebraska Supreme Court affirms summary judgment finding the plaintiff's expert was critical of the defendant's handling of the case, it did not state his opinion that the defendant breached her standard of care. Legal malpractice plaintiff's expert witness was retired Sarpy County District Judge Reagan who thought the case "should have been tried." "Wolski did not meet his burden of demonstrating the existence of a genuine issue of material fact. Reagan’s testimony falls short of this objective. Although Reagan expressed criticism of certain aspects of Wandel’s representation, he did not specifically opine that her performance deviated from the applicable standard of care. In a medical malpractice case, we have held that an expert’s testimony that a surgical procedure should have been performed in a different manner did not constitute evidence that the defendant had departed from the applicable standard of care in performing the surgery in the way that he did.13 We noted that if the expert believed that there had been a deviation from the standard of care, “it would have been a simple matter . . . to have said exactly that.”14 R eagan’s “criticism” of Wandel was similarly insufficient as evidence of professional negligence. At most, R eagan’s testimony establishes that his evaluation of the underlying case differed from that of Wandel. It is not uncommon for lawyers to have differing views about the merits of a contested case, and such a difference of opinion between lawyers does not necessarily mean that one of them has been negligent in evaluating the case. R eagan’s testimony does not establish that Wandel’s professional performance fell below that expected of lawyers of ordinary skill and capacity under similar circumstances.

Nebraska Supreme Court affirms summary judgment in favor of doctors who performed gastric bypass operation on the Plaintiff and then treated her for subsequent complications of the surgery. While the Nebraska Supreme Court would allow the plaintiff to present non-expert testimony on the standard of care and deviation from the standard of care in an obvious case of malpractice, the plaintiff still needed to present expert testimony for causation. Thone v. Regional West Med. Ctr., S-05-1556, 275 Neb. 238 The Plaintiff had gastric bypass surgery which involved doctors' placing a band on her stomach. She developed complications 6 months later and had to go back to the hospital. Doctors apparently did not take action to identify the reasons for her distress and correct them for five days. Plaintiff sued for malpractice but when the defendants moved for summary judgment she failed to present affidavits from experts to show she could make a prima facie case of malpractice (standard of care, deviation from the standard of care, and proximate cause of the injury). The Scotts Bluff County District Court granted the defendants summary judgment. The Nebraska Supreme Court affirms, but only because the plaintiff failed to present an affidavit from an expert that the doctors' alleged malpractice was the proximate cause of her injuries. "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, a layperson can infer that a reasonable physician would not wait 5 days before rendering aid to a patient in Collette’s condition. However, the B ioEnterics manual does not trigger the manufacturer-instruction exception in this case. A s such, the lack of expert testimony proves fatal to the T hones’ claims that appellees committed negligence by deviating from the instructions set forth in the B ioEnterics manual when attending to Collette’s ailments." "lay testimony may suffice to establish a defendant’s deviation from the standard of care." See Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994). "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." "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."

Nebraska Supreme Court reverses Douglas County District Court summary judgment that was in favor of plaintiffs whose attorney had forged their signatures on settlement documents, forged their settlement checks and stole their funds against their attorney's malpractice insurer. The Supreme Court holds the fraud and misappropriation exclusion clauses in the attorney's malpractice insurance policy voided coverage. On remand the Nebraska Supreme Court directs the District Court to give summary judgment to Coregis, the former attorney's malpractice insurer. Fokken v. Steichen, S-06-614, S-06-615, 274 Neb. 743. Coregis should have received summary judgment for the plaintiffs' claims that the attorney misappropriated their settlement funds by converting the funds for the attorney's use. When the District Court determined the attorney fraudulently settled the cases, the malpractice insurer wins summary judgment for the balance of the plaintiffs' malpractice claims that the attorney settled their cases for less than their true value.Steichen’s unauthorized endorsement of Miller’s and Fokken’s names constituted a dishonest act. Because the district court in both Fokken’s and Miller’s cases adjudicated Steichen of committing those dishonest acts, coverage is precluded under exclusion A (dishonesty) of the Policy for the balance of the appellees’ judgments against Steichen."

Will medical malpractice plaintiffs be able to bring cases against Hospitals and doctors for their advertisements? Nebraska Supreme Court, per curiam, affirms Douglas County District Court defense verdict in medical malpractice case rules that judge could exclude defendant evidence of hospital's advertisements for its walk-in emergency clinic. Supreme Court holds the advertisements did not establish a standard of care. But Court hints that in the right cases plaintiffs could bring negligent misrepresentation claims Karel v. Nebraska Health Sys., S-05-1311, 274 Neb. 175 Tina Karel's estate administrator sued Nebraska Health Systems, dba Clarkson West EmergiCare (Clarkson West), and Scott Menolascino, M.D., for medical malpractice action. Plaintiff died just a few hours after seeking treatment from the emergency clinic the second time that evening. After the defense verdict the Plaintiff appealed arguing the district court should have admitted her evidence of the defendants' print and radio advertisements produced by for the Clarkson West Emergicare clinic.Supreme Court affirms. "Neither the offer of proof nor any other part of the record affords any basis for concluding that Karel relied upon or was even aware of the marketing activities undertaken by Clarkson West when she chose to seek medical care at the facility"

Malpractice lawyers will sue other lawyers for settling cases and also for taking cases to court. Nebraska Supreme Court (J. Wright) reinstates $1.6 million malpractice verdict against Omaha's McGrath North law firm in favor of former client LaVista Keno operator Richard Bellino and his trial attorney David Domina. Bellino v. McGrath North, S-06-130, 274 Neb. 130. Lawyers beware of advising clients to accept settlements that another lawyer will say were too low, conversely don't advise a client to beat a settlement offer at trial. The Douglas County jury ruled that McGrath North's client received bad legal advice on how to dump his business partner in their Keno business and then that he would win in court. Although the district court agreed that the defendants' continuous representation through the clients unsuccessful appeal against the former partner's business opportunity lawsuit was timely and that the defendants were negligent , the district judge reduced the jury's $1.6 million to $224K. The district judge reasoned that since the client would owe his partner something eventually, no damage resulted from the attorney's conduct. Supreme Court disagrees. "After (plaintiff) did not accept (former partner's) offer, (Plaintiff's) appeal continued until this court affirmed the judgment in favor of (former partner). The jury could reasonably have concluded that but for the negligence of McGrath North, Plaintiff would have paid substantially less than $3.1 million to attain his stated goals."

Follow up: Nebraska supreme court to review malpractice verdict against McGrath North law firm. WOWT. The Douglas County District Court reduced the plaintiff's verdict from $1.6million to $229k. The Plaintiff appeals reducing the verdict, while the Defendant cross appeals to have the case dismissed. S-06-0130, Bellino et al v. McGrath North Mullin & Kratz, PC,et al. The defendant attorneys have included in their appeal that the plaintiff missed the statute of limitations because he was aware of the alleged malpractice more than two years before suing the attorneys and the continuous representation rule would not apply

Plaintiff's attorney waited 5 months and 3 weeks to serve his doubtfully meritorious malpractice suit on the defendant physician. The Douglas County Sheriff apparently served the wrong defendant or misidentified him. According to 25-217, the bad service lead to automatic dismissal of the case, and in this instance the statute of limitations ran. Plaintiff now is blaming the Sheriff for the improper service. Journal Star.com Plaintiff claimed the late service occurred as part of his trial strategy in (scrambling) to obtain a favorable expert's opinion before serving the doctor.In Nebraska, an attorney has six months to have the defendant served with papers after filing a lawsuit. Blakeman asked that the physician be served in January 2006, just days before the six-month time limit expired.Blakeman said he received noticed that the papers were served.“At that point, I’m figuring my client is protected,” Blakeman said.But the physician claimed in a court hearing that he was never served. Records showed that the physician was out of his office on the day the server claimed to have given him the papers, and Judge Patricia Lamberty ruled in his favor.By then, it was too late for Blakeman to have the lawsuit served again.Blakeman filed the lawsuit against Douglas County last week.The physician may have to testify in the case against the county.“He has nothing to lose financially,” Blakeman said, “but he might want to defend his practice.”

Nebraska Supreme Court signals it will protect attorney client communications more than work product in discovery proceedings. State ex rel. Stivrins v. Flowers, S-06-1044, 273 Neb. 336 Plaintiff sued Lincoln physician Timothy Stivrins for failure to diagnose lung cancer. Plaintiff's counsel notices the doctor's partner physician for a deposition and prior to the deposition the partner physician sought legal advice from the same lawyer who represented the defendant. Plaintiff counsel questioned the witness about attorney client communications he had with the defendant's counsel. The district court upheld the plaintiff's motion to compel. Defendant filed this mandamus action in the Supreme Court against the district court and affirms the writ. While the Supreme Court in its Greenwalt v. Wal-Mart Stores, 253 Neb. 32, 567 N.W.2d 560 (1997) decision applied a balancing test for work product claims after a party established a prima facie case for protection, the court here appears to shut off any discovery of attorney client communications as long as the party makes a prima facie case for the privilege. Although the court in Hallie Mgmt. Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006) denied an interlocutory appeal from an adverse ruling against a party's privilege claim, the supreme court distinguishes the result against the privilege in that case because the party seeking protection did not file their claim as a mandamus action. "Once pace established the attorney-client relationship, the plaintiff had the burden to establish that the inquiry related to or was an exception to this rule or that the communications wereoutside the scope of the privilege and further an appeal after the disclosure of the privileged communications at issue would be an inadequate remedy in this case."

If you’re hurt on the job don’t have your employer also be your doctor: Hospital employee injured in scope and course of employment who claims additional injuries from negligent medical care from the hospital may not sue for malpractice because of the exclusive remedy provision of the Nebraska Worker compensation law Bennett v. Saint Elizabeth Health Sys., S-05-1306, 273 Neb. 300 “Plaintiff argues that because the second injury to her shoulder occurred while she was a patient receiving medical treatment from Saint Elizabeth Hospital, we should permit her to sue the hospital for additional negligence damages. Saint Elizabeth urged the Supreme Court to affirm, arguing that Plaintiff’s injuries were covered by the Workers’ Compensation act and the acts exclusive remedy provisions (48-101, 48-111, 48-112, 48-148 RRS Neb). “We agree with Saint Elizabeth and conclude that the district court did not err when it concluded that Bennett’s medical malpractice action was barred by the exclusivity provisions of the Workers’ Compensation act, granted summary judgment in favor of Saint Elizabeth, and dismissed the action. Because the consequential injury is covered, plaintiff’s exclusive remedy for this injury is under the Workers’ Compensation act, and recovery is not available in a medical malpractice action against Saint Elizabeth. Despite the “covered” nature of her injury, Bennett accordingly, we affirm.”

Nebraska Supreme Court affirms physician's defense verdict from diabetic mother's appeal for brain injured son; criticizes the Plaintiff's abbreviated bill of exceptions and refuses to recognize plain error in alleged evidence spoliation. Worth v. Kolbeck, S-05-269, 273 Neb. 163 Plaintiff brain injured child brought suit against obstetrician because following his birth he developed hypoxic‑ischemic encephalopathy, directly related to his diabetic mother's ketoacidosis that she experienced shortly before delivery. The child suffered lack of oxygen that caused his perinatal brain injury. Defendant doctor answered that the sole proximate cause of the plaintiff's brain injury was the mothers diabetic ketoacidosis and further that delayed cesarean delivery made no difference to the outcome. During the trial the Defendants read into evidence pediatric neurologist Stephen Glass' deposition who testified that the defendant was not negligent nor were his actions the cause of the boy's injuries. Plaintiff objected because his current attorneys were not his counsel when the defendant took this deposition. Plaintiff objected also to the trial court's instruction that allowed the jury to consider whether the mother was herself negligent in managing her pregnancy. Finally the Plaintiff urged that it was plain error for the court to fail to give a spoliation of evidence instruction, even though the Plaintiff did not provide relevant parts of the record to review this in his bill of exceptions the Supreme Court allows the Defendant's proximate cause instruction which asked the jury to consider whether the mother was a proximate cause of his injuries, even though the defendant may not impute the parents negligence to the child: " the third person’s (diabetic mother) negligence is not imputed to an innocent plaintiff by a sole proximate cause instruction. “The concept of sole proximate cause ‘rests on the notion that some third party or other independent event was the sole cause of the plaintiff’s injuries... taken as a whole, the jury instructions were sufficient to ensure that mothers’s negligence did not operate to prevent child’s recovery of damages if the jury concluded that Defendant's negligence was a concurring or contributing proximate cause of Son’s injuries. the Supreme Court went on to criticize the Plaintiff's appellate preparation, noting that The bill of exceptions does not include most of the trial. It is limited to the arguments regarding the admissibility and the reading into evidence of deposition testimony from Sonja’s medical expert, Dr. Stephen Glass; two jury instruction conferences; and the testimony of an expert document examiner, Marlin Rauscher. Finally not a good start the court denies plain error on top of admitting the deposition, stating Sonja’s argument requires a factual inquiry into this record, which is wholly insufficient for this court to evaluate whether the absence of an adverse inference instruction prejudiced Sonja’s case or led to a miscarriage of justice. It is incumbent on the party appealing to present a record which supports the errors assigned, and absent such a record, the decision of the lower court will be affirmed.36 Because we cannot determine that the court’s failure to give this instruction was error, the district court’s ruling is affirmed.