The Nebraska Supreme Court held in its opinion filed on March 30, 2018 that the trial court in a Nebraska medical malpractice case did not fail to perform its Daubert/Schafersman gatekeeping function by allowing certain expert testimony that led to a defense verdict. The district court had admitted, over the Estate’s objections, testimony by several expert witnesses that the defendant surgeons had met the standard of care.
Nebraska Medical Malpractice Law
To establish a prima facie case of medical malpractice in Nebraska, 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. The applicable standard of care in cases arising under the Nebraska Hospital-Medical Liability Act is defined as follows: “Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider has failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities.”
To establish the customary standard of care in a particular case, expert testimony by a qualified medical professional is normally required. Often, such testimony is premised on the expert’s personal knowledge of, and familiarity with, the customary practice among medical professionals in the same or similar locality under like circumstances.
Expert Testimony In Nebraska Medical Malpractice Cases
Neb. Rev. Stat. § 27-702 (Reissue 2016) governs the admissibility of expert testimony and provides that the witness must be qualified as an expert: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” As a general matter, expert testimony is required to identify the applicable standard of care.
The Daubert/Schafersman Framework
Under the Daubert/Schafersman framework, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion which entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue.
The Daubert/Schafersman standards require proof of the scientific validity of principles and methodology utilized by an expert in arriving at an opinion in order to establish the evidentiary relevance and reliability of that opinion. The purpose of this gatekeeping function is to ensure that the courtroom door remains closed to “junk science” that might unduly influence the jury, while admitting reliable expert testimony that will assist the trier of fact.
Daubert also set out a list of considerations that a trial court may use to evaluate the validity of scientific testimony. These include (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation; and (4) the ‘general acceptance’ of the theory or technique.
A trial court adequately demonstrates that it has performed its gatekeeping duty when the record shows (1) the court’s conclusion whether the expert’s opinion is admissible and (2) the reasoning the court used to reach that conclusion, specifically noting the factors bearing on reliability that the court relied on in reaching its determination.
In the case it was deciding, the Nebraska Supreme Court held “we interpret the judge’s statements to be consistent with our previous case law and his judicial gatekeeping responsibilities. The trial court appropriately focused on both the nature of the challenged testimony and the objections raised by the Estate. Here, the witnesses’ testimony on the standard of care was not based on clinical practice guidelines, physician surveys, or any other scientific methodology or theory. Rather, it was empirical testimony based on their personal knowledge of the ordinary care, skill, and diligence commonly exercised by cardiac surgeons in Nebraska under similar circumstances and the actual care, skill, and diligence they exercise during operations … The court adequately demonstrated ‘by specific findings on the record’ that it performed its duty as gatekeeper.”
Hemsley v. Langdon, 299 Neb. 464.
If you or a loved one may have been injured as a result of medical negligence in Nebraska or in another U.S. state, you should promptly consult with a Nebraska medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
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