Lear v. Nebraska Methodist Health Sys.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
Cynthia L. Lear, individually and as Personal
Representative of the Estate of Joshua W. Lear,
deceased, appellant and cross-appellee, v.
Nebraska Methodist Health System, Inc.,
doing business as Methodist Health System,
et al., appellees and cross-appellants.
___ N.W.3d ___
Filed July 22, 2025. 	No. A-24-309.
1. Jury Instructions. Whether a jury instruction is correct is a question
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Jury Instructions: Appeal and Error. Where jury instructions are
claimed deficient on appeal and such issue was not raised at trial, an
appellate court reviews for plain error.
4. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
5. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s failure to give a requested jury instruction, an appel-
lant has the burden to show that (1) the tendered instruction is a correct
statement of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s failure to
give the requested instruction.
6. Jury Instructions. The submission of proposed instructions by counsel
does not relieve the parties in an instruction conference from calling the
court’s attention by objection to any perceived omission or misstatement
in the instructions given by the court.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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33 Nebraska Appellate Reports
LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
7. Jury Instructions: Appeal and Error. If the instructions given, which
are taken as a whole, correctly state the law, are not misleading, and
adequately cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
8. ____: ____. Jury instructions are subject to the harmless error rule, and
an erroneous jury instruction requires reversal only if the error adversely
affects the substantial rights of the complaining party.
9. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
10. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Joseph P. Cullan, Patrick J. Cullan, and Joseph S. Fox, of
Cullan & Cullan, L.L.C., for appellant.
Julie R. Lehan and Robert M. Schartz, of Abrahams, Kaslow
& Cassman, L.L.P., for appellees Nebraska Methodist Health
System, Inc., and The Nebraska Methodist Hospital.
Robert A. Mooney and Emily E. Palmiscno, of Mooney,
Lenaghan, & Westberg Dorn, L.L.C., for appellees Omaha
Thoracic & Cardiovascular Surgery, P.C., and John T. Batter,
M.D.
Riedmann, 	Chief 	Judge, 	and 	Moore 	and 	Arterburn,
Judges.
Riedmann, Chief Judge.
I. INTRODUCTION
Cynthia L. Lear (Lear), individually and as personal rep-
resentative of the estate of Joshua W. Lear, deceased, appeals
from the order of the district court entering judgment on
the jury verdict in favor of the health care providers she
sued. Appellees 	Nebraska 	Methodist 	Health 	System, 	Inc.,

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33 Nebraska Appellate Reports
LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
doing business as Methodist Health System (NMHS), and The
Nebraska Methodist Hospital (TNMH) have cross-appealed.
Appellees Omaha Thoracic & Cardiovascular Surgery, P.C.
(OTCS), and John T. Batter, M.D., have also cross-appealed.
For ease of reference throughout this opinion, we will refer to
NMHS and TNMH collectively as the “Methodist defendants”
and will use their individual names only when necessary. We
will likewise refer to OTCS and Batter collectively as the
“Batter defendants.” Because we reject Lear’s assigned errors,
we do not address the errors assigned in the cross-appeals.
II. BACKGROUND
On March 13, 2017, Joshua W. Lear (Joshua) underwent
a lobectomy, in which the lower portion of his left lung was
removed. Batter, employed by OTCS, was the surgeon who
performed the operation at TNMH. After experiencing postsur-
gical issues, Joshua died later that day. Lear filed suit against
NMHS, TNMH, OTCS, and Batter. Several fact and expert
witnesses testified at trial, and hundreds of pages of documents
were entered into evidence. We recount only that evidence
which is necessary to resolve the assigned errors on appeal.
1. Underlying Facts
Joshua Smith, M.D., was the anesthesiologist who provided
care for Joshua during the surgery. Smith was not an employee
of the hospital. Smith attempted to place an arterial line prior
to surgery to monitor Joshua’s vital signs, but after several
failed attempts, Smith made the decision to use alternate
means to monitor them. The surgery was performed without
complications, and at 4:01 p.m., Joshua was taken to the post-
anesthesia care unit (PACU). The PACU is a recovery room
where patients who have been fully anesthetized are closely
monitored before being transferred to a hospital floor room.
Smith accompanied Joshua to the PACU, and a PACU nurse,
Jill Sheffield, began providing care for Joshua.
Sheffield took Joshua’s vital signs at 4:01 p.m., 4:05 p.m.,
4:15 p.m., 4:30 p.m., and 4:45 p.m. Batter had standing orders

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
to notify him if a patient’s systolic blood pressure dropped
below 100, and Joshua’s systolic blood pressure dropped to
96 at 4:05 p.m. and 98 at 4:45 p.m. A different nurse took
Joshua’s vital signs at 4:40 p.m., and his systolic blood pres-
sure was 99 at that time. However, Sheffield did not alert
Batter to these readings.
At 4:29 p.m., Smith was at Joshua’s bedside and determined
Joshua was hemodynamically stable. At 4:41 p.m., Sheffield
documented that Smith was “okay” with Joshua’s being trans-
ferred from the PACU to the ninth floor. During his stay in
the PACU, Joshua had an output of “165 ccs” of sanguineous
fluid into his chest tube reservoir. He had a small amount of
air in his chest cavity, also known as a pneumothorax, and a
small air leak in his chest tube. Sheffield did not advise Smith
of the amount of sanguineous fluid in the chest tube reservoir,
the pneumothorax, or the chest tube air leak. Sheffield noti-
fied Batter of the pneumothorax, which did not cause Batter
any concerns, but she did not tell him about the 165 ccs of
sanguineous fluid in the chest tube reservoir. Joshua was
documented as ready to leave the PACU at 4:45 p.m. and was
officially discharged to the ninth floor at 5 p.m. At that point,
the ninth floor nurse took over Joshua’s care.
Around 5:04 p.m., Joshua leaned forward, exhaled, appeared
pale and ashen, and did not respond to verbal or painful stim-
uli. Joshua lost consciousness and CPR was initiated. He was
taken back to the operating room, and Batter performed sur-
gery to resuscitate Joshua. These attempts were unsuccessful,
and Joshua died. An autopsy revealed that Joshua had a 2-mm
tear in his pulmonary artery, approximately 4 mm above the
point where Batter had secured the artery after the lobectomy.
The cause of death was acute hemorrhagic shock as a compli-
cation from the lobectomy.
2. Expert Testimony
Mitchell J. Magee, M.D., a thoracic surgeon from Texas,
opined that Batter violated the standard of care by failing to

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
adequately secure the pulmonary artery during the surgery,
by failing to inspect the pulmonary artery or surgical field
prior to closure, and by not having an arterial line in place.
Although Magee acknowledged the placement of an arterial
line was a decision made between the anesthesiologist and the
surgeon, he believed the surgeon was ultimately “responsible
for everything that happens in the operating room.”
Magee opined that nursing staff in the PACU failed to fol-
low Batter’s orders and that if they had followed his orders,
then Batter would have had the opportunity to reassess Joshua
and Joshua would have been under closer observation. He
also stated that nursing staff should have notified Batter about
Joshua’s chest tube drainage. Magee acknowledged that Smith
ultimately discharged Joshua from the PACU, but Magee
believed Smith was evaluating from the perspective of an anes-
thesiologist, and there would be additional things that Magee
would assess as a surgeon.
Richard 	Novak, 	M.D., 	an 	anesthesiologist 	at 	Stanford
University Hospital, opined that Joshua was discharged from
the PACU “too soon,” in violation of the standard of care.
He stated there were significant abnormalities that Sheffield
did not disclose to the physicians involved, including the
times Joshua’s systolic blood pressure fell below 100 and the
amount of fluid discharge in the chest tube reservoir. Novak
believed this allowed Joshua’s PACU discharge to occur too
quickly. Additionally, Novak testified that the guidelines con-
tained in one of the hospital policies on patient discharge that
he reviewed violated the standard of care because the policy
allowed discharge from the PACU with vital signs that Novak
considered abnormal.
Shay R. Glevy, a PACU nurse in California, opined that
Sheffield violated the standard of care by not informing Batter,
pursuant to his orders, of the times Joshua’s systolic blood
pressure fell below 100. She believed Sheffield failed to com-
municate by not informing Batter and Smith of the 165 ccs
of sanguineous fluid in Joshua’s chest tube reservoir. Glevy

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
stated that the 4:45 p.m. vital signs were not stable and that
Sheffield should have kept Joshua in the PACU until there
were 30 minutes of stable vital signs. Glevy opined that Joshua
was discharged from the PACU “too fast.”
The defendants introduced expert testimony showing that
neither the Methodist defendants nor the Batter defendants
breached the applicable standards of care. An expert cardio-
thoracic surgeon from the Buffett Cancer Center, which is part
of the University of Nebraska Medical Center and Nebraska
Medicine, opined that Batter did not breach the standard of
care when performing the lobectomy, including proceeding
without an arterial line. This expert opined that there was no
bleeding from the 2-mm tear in the pulmonary artery until
shortly before 5:04 p.m., as the pulmonary artery would bleed
so profusely from such a tear that Joshua would have lost
liters of blood from the tear within minutes. Magee confirmed
that bleeding was a known complication of a left lower lobe
lobectomy and that complications could occur even with the
best of medical care. Batter agreed. Smith likewise agreed that
following a surgery like this, there can be postoperative bleed-
ing in the chest.
An expert PACU nurse employed at Nebraska Medicine,
who was also certified in perianesthesia nursing, opined that
Sheffield met the standard of care when caring for Joshua in
the PACU. She did not believe Sheffield breached the stan-
dard of care in failing to inform Batter when Joshua’s systolic
blood pressure was below 100, as Joshua’s other vital signs
were not concerning. This nurse did not think the amount of
fluid in Joshua’s chest tube reservoir was significant after this
type of surgery.
3. Jury Instructions
At the jury instruction conference, the district court over-
ruled Lear’s request to include institutional negligence claims
against the Methodist defendants for not having proper poli-
cies in place. It declined to give Lear’s proposed instruction
defining proximate cause. The district court overruled Lear’s

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
objection to an instruction stating that as a matter of law,
Smith was not an employee or agent of the Methodist defend-
ants, and also overruled Lear’s objections to the instruction
defining negligence.
The jury was instructed that Lear was claiming the Methodist
defendants were professionally negligent in failing to follow
Batter’s orders, failing to communicate the 165 ccs of sanguin-
eous fluid, and transferring Joshua from the PACU to the ninth
floor too quickly. The jury was instructed Lear was claiming
the Batter defendants were professionally negligent in failing to
secure the pulmonary artery prior to closure, failing to inspect
the pulmonary artery prior to closure, and failing to take time
to place an arterial line. The jury found that Lear failed to
meet her burden of proof as to both the Methodist defendants
and the Batter defendants on all claims and returned a verdict
in favor of the defendants. Lear appeals. We discuss additional
facts below as necessary.
III. ASSIGNMENTS OF ERROR
Lear assigns, restated, that the district court erred in (1)
failing to instruct the jury on (a) institutional negligence, (b)
allocation of negligence, and (c) proximate and concurrent
cause, and (2) instructing the jury (a) that Smith was not an
agent of the Methodist defendants, (b) using the statutory defi-
nition of negligence, and (c) that NMHS and TNMH were to
be considered as one defendant.
On cross-appeal, the Methodist defendants assign that the
district court abused its discretion in failing to (1) exclude
Novak’s testimony that was based solely on his personal prac-
tices and (2) exclude Glevy as an expert witness or, alterna-
tively, exclude certain testimony that was based solely on her
personal practices.
On cross-appeal, the Batter defendants assign, restated, that
the district court erred in (1) receiving Magee’s affidavit in
opposition to Batter’s pretrial motion to strike, despite Batter’s
objections, and (2) admitting Magee’s testimony at trial.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
IV. STANDARD OF REVIEW
[1,2] Whether a jury instruction is correct is a question of
law. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d
247 (2018). When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently
of the conclusion reached by the trial court. Id.
[3] Where jury instructions are claimed deficient on appeal
and such issue was not raised at trial, an appellate court
reviews for plain error. Foundation One Bank v. Svoboda, 303
Neb. 624, 931 N.W.2d 431 (2019).
[4] Plain error exists where there is an error, plainly evident
from the record but not complained of at trial, which prejudi-
cially affects a substantial right of a litigant and is of such a
nature that to leave it uncorrected would cause a miscarriage
of justice or result in damage to the integrity, reputation, and
fairness of the judicial process. Id.
V. ANALYSIS
1. Appeal
(a) Failure to Instruct
[5] Lear’s first three assigned errors all relate to the district
court’s refusal to give her proposed instructions. To establish
reversible error from a court’s failure to give a requested jury
instruction, an appellant has the burden to show that (1) the
tendered instruction is a correct statement of the law, (2) the
tendered instruction was warranted by the evidence, and (3)
the appellant was prejudiced by the court’s failure to give
the requested instruction. Rodriguez, supra. However, if the
instructions given, which are taken as a whole, correctly state
the law, are not misleading, and adequately cover the issues
submissible to a jury, there is no prejudicial error concerning
the instructions and necessitating a reversal. Id.
(i) Institutional Negligence
Lear assigns that the district court erred by failing to
instruct the jury on institutional negligence. She argues that

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
she asserted a claim of institutional negligence regarding the
hospital’s policy on the care and discharge of a postsurgical
patient and that Novak’s opinion supported this. We find that
this instruction was not warranted by the evidence and that
Lear cannot show prejudice from the district court’s refusal to
instruct the jury on the institutional negligence claim.
a. Additional Facts
Novak testified that the hospital policy addressing the care
and discharge of a postsurgical patient was poorly written,
flawed, and below the standard of care. Specifically, he noted
the policy allowed for the PACU discharge of a patient with a
heart rate between 50 and 120, but a heart rate under 60 would
be abnormal for most patients, as would a heart rate over 100.
The policy allowed for the discharge of a patient with a sys-
tolic blood pressure between 90 and 180, but Novak believed a
systolic blood pressure of 180 was extremely high and a patient
with that reading should not be discharged from a recovery
unit. Novak also noted that the policy allowed patients to be
discharged with respiratory rates as high as 30.
Novak confirmed that one of the aspects of the policy is
that “it’s supposed to show stability within the parameters
and that’s a foremost of recovery room discharge.” He opined
that there should be at least 30 minutes of stability of vital
signs prior to discharge and that Joshua’s vitals were not
stable. At the jury instruction conference, Lear requested that
the court include in the statement of the case instruction an
additional claim that the Methodist defendants “[f]ail[ed] to
have an appropriate policy in place for the safe discharge
from the PACU.” Lear argued that Novak stated the hospi-
tal and health system failed to have appropriate policies in
place, and the jury instruction proposed by the district court
did not include those institutional claims. The district court
refused the request to include an institutional claim in the jury
instructions.

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
b. Analysis
Lear argues that Novak testified that the policy was poorly
written, that it did not meet the standard of care, and that as
a direct and proximate result, Joshua died. However, Novak
identified three deficiencies in the policy involving heart rate,
systolic blood pressure, and respiratory rate. Joshua’s vital
signs from the time he entered the PACU until his discharge
never entered the range of numbers that Novak specifically
identified as being problematic in the policy.
Novak stated that the policy was flawed because it allowed
a patient to be discharged with a heart rate under 60 or over
100. Joshua’s heart rate was never under 60 or over 100 at
any time in the PACU. Joshua’s heart rate did reach 98 at 4:55
p.m., but it never went over 100, the rate that Novak identi-
fied as abnormal. Novak also opined that the policy errone-
ously allowed for a patient with a systolic blood pressure up
to 180 to be discharged, but Joshua’s systolic blood pressure
never elevated above 131 while in the PACU. Similarly, while
Novak believed the policy was flawed for allowing discharge
of patients with respiratory rates as high as 30, Joshua’s respi-
ratory rate was never above 21.
Although Novak opined that the PACU discharge policy
was below the standard of care, the portions he specifically
identified as being below the standard were never reached in
this case. Joshua’s vital signs never entered the specific sub-
optimal ranges identified by Novak that led him to opine that
the policy fell below the standard of care. Thus, even if we
assume the policy as written was below the standard of care,
the specific parameters that made it so were never at issue
in this case and could not have been a proximate cause of
Joshua’s death.
At oral argument, Lear argued that Novak’s testimony also
included a criticism of the policy in that it did not require the
patient’s vital signs to remain stable for the requisite amount
of time. We do not interpret his testimony in this manner.
Rather, after identifying the three deficiencies set forth above,

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
Novak was asked, “[I]s one of the elements of the policy to
ensure that — I think it’s letter ‘F’ — to ensure that there’s
stability of the patient, though, prior to discharge?” Novak
responded, “One of the aspects of this policy is that it’s sup-
posed to show stability within the parameters and that’s a fore-
most of recovery room discharge.” He then went on to opine
that 30 minutes of stability or longer is appropriate, depending
upon the complexity of the surgery.
Our review of the policy reveals that section “3(h)” does
require that the patient “[s]how stability within these param-
eters” as testified to by Novak. However, Novak never opined
that the policy was deficient for failing to include a time
period. To the contrary, he testified that 30 minutes of stabil-
ity is preferred and that he read depositions from the nurses
in this case, who were taught 30 minutes of stability as well.
Therefore, we reject Lear’s argument that Novak opined the
policy was deficient as it related to a patient’s stability.
Lear has failed to show her proposed instruction was war-
ranted by the evidence and thus has failed to show she was
prejudiced by the district court’s refusal to give this requested
instruction. This assignment of error fails.
(ii) Allocation of Negligence
Lear assigns that the district court erred in failing to instruct
the jury on the effects of the allocation of negligence. We
determine that no such instruction was warranted.
a. Additional Facts
An allocation of negligence instruction was included in
Lear’s proposed jury instructions filed with the district court
and was included in a packet of proposed instructions received
into evidence at the conclusion of the jury instruction confer-
ence. It stated, “If you find Plaintiffs were damaged then you
must determine to what extent the negligent conduct of each
Defendant contributed to the damages of Plaintiffs, expressed
as a percentage of one hundred percent (100%).”

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
b. Analysis
[6] Despite the proposed instruction being included in a
packet of instructions offered into evidence at the conclusion
of the jury instruction conference, at no time during the con-
ference did Lear ever bring her requested instruction to the
district court’s attention. The submission of proposed instruc-
tions by counsel does not relieve the parties in an instruction
conference from calling the court’s attention by objection to
any perceived omission or misstatement in the instructions
given by the court. Farmers Mut. Ins. Co. v. Kment, 265 Neb.
655, 658 N.W.2d 662 (2003) (concluding counsel’s failure
to object at instruction conference precluded review despite
proposed instruction having been provided to court). The
purpose of the instruction conference is to give the trial court
an opportunity to correct any errors being made by it. Id.
Consequently, the parties should object to any errors of com-
mission or omission. Id.
While we question whether Lear has adequately preserved
this assigned error, our review of her argument leads us to
conclude that an apportionment instruction was not war-
ranted by the evidence, nor can Lear show prejudice from the
court’s failure to provide her proposed instruction. On appeal,
Lear argues that pursuant to Neb. Rev. Stat. § 25-21,185.07
(Reissue 2016), Nebraska’s comparative fault statute, the jury
should have been instructed on the effects of the alloca-
tion of negligence because it was a cause of action to which
contributory negligence may be an affirmative defense. Neb.
Rev. Stat. § 25-21,185.09 (Reissue 2016) provides that the
contributory negligence of the claimant shall diminish propor-
tionately the amount awarded to him or her, except that if the
claimant’s contributory negligence is equal to or greater than
the total negligence of the persons against whom recovery is
sought, “the claimant shall be totally barred from recovery.
The jury shall be instructed on the effects of the allocation
of negligence.”

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
We recognize that the Nebraska Supreme Court has previ-
ously held that in a case where contributory negligence is a
defense, the failure of a court to properly instruct the jury
pursuant to § 25-21,185.09 is prejudicial error. See Wheeler v.
Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998). Here, however,
based on the facts of this case, no allocation of negligence
instruction was required.
In 	Wheeler, 	the 	Supreme 	Court, 	when 	discussing
§ 25-21,185.09, stated that “[t]he statute, which was enacted as
part of the comparative negligence statutory scheme in 1992,
mandates that juries that have been instructed on contributory
negligence as a defense must also be instructed on the ultimate
effect of their allocation of negligence to each party.” 254 Neb.
at 237, 575 N.W.2d at 619. In Ammon v. Nagengast, 24 Neb.
App. 632, 642, 895 N.W.2d 729, 737 (2017), we noted that
§ 25-21,185.09 dictated the effect that a claimant’s contributory
negligence had on the claimant’s recovery, but that “[t]here was
no allegation of any contributory negligence chargeable to [the
decedent], so § 25-21,185.09 is not applicable to this case.”
Here, there was no allegation that there was any contributory
negligence on Joshua’s part, so § 25-21,185.09 is inapplicable
in this case.
We further note that Lear’s proposed allocation of negli-
gence instruction states that if the jury finds Lear was dam-
aged, it must determine the extent the negligent conduct of
each defendant contributed to the damage, expressed as a per-
centage of 100 percent. Nowhere in this proposed instruction
does it inform the jury to apportion negligence to anyone other
than the defendants; hence, giving Lear’s proposed instruction
would not have had any effect on her recovery. The district
court did not err in failing to give Lear’s apportionment of
negligence instruction.
(iii) Proximate and Concurrent Cause
Lear assigns that the district court erred in failing to prop-
erly instruct the jury on proximate cause and concurrent cause.
We determine that the instructions, taken as a whole, correctly

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stated the law, were not misleading, and adequately covered the
issue of proximate cause.
a. Additional Facts
The proximate cause instruction given by the district court
instructed the jury that “[a] proximate cause is a cause that
produces a result in a natural and continuous sequence, and
without which the result would not have occurred.” Lear pro-
posed a proximate cause instruction that included the district
court’s definition, but also added the following language:
A proximate cause need not be the sole cause. It may
be a substantial factor or substantial contributing cause in
bringing about the injury or harm.
If the effects of a defendant’s negligence actively and
continuously operate to bring about harm to another, the
fact that the actions/omissions of a third person is also
a substantial factor in bringing about the harm does not
protect the defendant from liability.
Lear’s proposed instruction on concurrent cause stated:
Where the independent negligent acts or failures to act
of more than one person combine to proximately cause
the same injury, each such act or failure to act is a proxi-
mate cause and each such person may be held responsible
for the entire injury. This is true though some may have
been more negligent than others.
b. Analysis
Lear argues that absent these instructions, the jury could
believe that any actions by Smith that caused or contributed
to Joshua’s death exonerated the defendants from liability.
However, this would require the jury to disregard the instruc-
tion on proximate cause, which defined it as a “cause” and did
not limit it to a single cause. To the extent Lear is arguing the
jury could have believed there could be only one proximate
cause, the jury instructions and verdict forms illustrate the fal-
lacy of Lear’s argument.

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LEAR v. NEBRASKA METHODIST HEALTH SYS.
Cite as 33 Neb. App. 755
The jury was instructed in the statement of the case
instruction that it could find that Lear met her burden of
proof as to either or both defendants. It was further instructed
that the four defendants were divided into two groups and
that those “two groups of defendants are independent of each
other.” It was advised to “decide the case of each group of
defendants separately as if it were a separate lawsuit.” Verdict
form No. 4 allowed the jury to find against both defendant
groups and required it to apportion each group’s percentage
of negligence.
[7] Although these instructions and verdict form dealt solely
with the named defendants, they reveal that the jury was well
aware that there could be more than one proximate cause and
that it was up to it to determine each party’s percentage of
negligence. An instruction specifically stating that a proximate
cause need not be the sole cause or that persons whose com-
bined negligent acts are each proximate causes was unneces-
sary. If the instructions given, which are taken as a whole,
correctly state the law, are not misleading, and adequately
cover the issues submissible to a jury, there is no prejudicial
error concerning the instructions and necessitating a reversal.
de Vries v. L & L Custom Builders, 310 Neb. 543, 968 N.W.2d
64 (2021).
Furthermore, there is nothing in our record that would sup-
port a determination that a jury would conclude that Smith’s
actions, if a proximate cause of Joshua’s death, would pre-
clude a determination that the named defendants could also
be a proximate cause. Our review of the record does not
reveal that any party suggested that Smith’s actions contrib-
uted or combined with any negligence of the defendants to
cause Joshua’s death. To the contrary, Lear did not assert any
negligence on the part of Smith and admits on appeal that the
evidence she presented “was that Defendants’ negligence was
the sole cause of Plaintiff’s injuries.” Brief for appellant at
26. Both the Methodist defendants and the Batter defendants

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adduced evidence that they did not violate the standard of
care; therefore, they argued they were not a proximate cause
of Joshua’s death.
Lear argues that “without the additional instructions pro-
posed by Plaintiff, members of the jury could logically infer
that Defendants were entirely shielded by the evidence pre-
sented by Defendants that . . . Smith was the sole proximate
cause of Plaintiff’s injuries.” Brief for appellant at 27-28. But
if the jury determined Smith was the sole proximate cause,
then neither the Methodist defendants nor the Batter defend-
ants could be “a” proximate cause. This is true regardless of
whether Lear’s proposed instructions were given.
When read as a whole, the jury was properly instructed
that one or both of the defendants could be a proximate
cause of Joshua’s death and that proximate cause was defined
as “a cause that produces a result in a natural and continu-
ous sequence, and without which the result would not have
occurred.” Lear cannot show she was prejudiced by the fail-
ure to give her requested instructions and cannot establish
prejudicial error requiring reversal. See Rodriguez v. Surgical
Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018). This assign-
ment of error fails.
(b) Failure to Properly Instruct
[8,9] Lear’s next three assigned errors all contend that the
district court erred in giving certain instructions to the jury.
Jury instructions are subject to the harmless error rule, and an
erroneous jury instruction requires reversal only if the error
adversely affects the substantial rights of the complaining
party. de Vries, supra. In an appeal based on a claim of an
erroneous jury instruction, the appellant has the burden to show
that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant. Id.
(i) Smith Not Agent of Methodist Defendants
Lear assigns that the district court erred by instructing the
jury that Smith was not an agent of the Methodist defendants.

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She argues that Smith never indicated he was not an agent of
the defendants in 2017. We determine that given the evidence
presented, Lear was not prejudiced by the instruction.
a. Additional Facts
At the jury instruction conference, the district court stated
that it tried “to anticipate jury problems and issues” if it could
and that it thought, as a matter of law, that Smith was not an
employee of Methodist. Lear objected, arguing that when there
is a dispute of fact regarding the relationship of the parties
involved, it is error for the court to instruct on that relation-
ship as a matter of law. The jury was subsequently instructed
that, as a matter of law, Smith was not an agent or employee
of the Methodist defendants. It was also instructed that to meet
her burden of proof, Lear needed to establish that there was a
breach of the standard of care and that this breach was a proxi-
mate cause of Joshua’s injuries or death. The jury was also
instructed that the standard of care needed to be established
by expert testimony.
b. Analysis
Although Lear argues that the court erred in instructing the
jury that Smith was not an employee of Methodist, she assigns
error only to the portion of the instruction that stated Smith
was not an agent of the Methodist defendants; thus, we limit
our analysis to this portion of the instruction. We find that
Lear cannot establish the instruction at issue was prejudicial.
To impose liability upon the Methodist defendants based
upon acts of Smith as its agent, Lear would be required to
prove that Smith breached the standard of care. We therefore
need not determine whether the court erred in its determina-
tion that Smith was not an agent of the Methodist defendants
because there was no expert witness testimony establishing the
standard of care as it related to Smith, nor was there testimony
that he breached it.
Magee was a thoracic surgeon and testified that he “[was]
not going to opine on an anesthesiologist.” Novak, who was

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retained by Lear as an expert witness in anesthesiology, testi-
fied regarding Smith as follows:
The anesthesiologist’s job is to do the preanesthetic care
— which he did — and do the anesthetic care in the
operating room, which he did — he met the standard of
care — and then bring this patient to the recovery room
at which point in time the standard of care is for him to
transmit everything he knows that’s pertinent to that nurse
so she can continue the care while he goes back to do the
next anesthetic. And that’s really the heart of the matter is
that she’s there watching the vital signs and charting the
information, and he is not there.
It is not an anesthesiologist’s job to be physically pres-
ent in the recovery room.
Although Novak opined that Joshua was discharged “too
fast from the PACU,” he faulted the PACU nurse, Sheffield,
for failing to report what Novak considered abnormalities
in Joshua’s condition, emphasizing that “Sheffield is on her
own. She is to be the eyes and ears for the anesthesiologist in
terms of his orders. . . . And unless she reports the abnormali-
ties, they may not ever find out about them.” Novak never
opined that Smith violated the standard of care.
Lear’s remaining expert, Glevy, was a perianesthesia nurse
and PACU nurse. As a nurse, Glevy was prohibited from opin-
ing on the standard of care of an anesthesiologist. See Neb.
Rev. Stat. § 44-2810 (Reissue 2021) (identifying standard of
care as being reasonable care that health care providers, in
same or similar community and engaged in same or similar
line of work, would provide). Absent expert testimony that
Smith violated the standard of care for an anesthesiologist,
Lear cannot show she was prejudiced by the district court’s
instruction determining as a matter of law that Smith was
not an agent of Methodist. Even if the jury had not been so
instructed, the Methodist defendants could not be held liable
for the acts of an agent physician without expert testimony that
the physician violated the standard of care. Because Lear was

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not prejudiced, this assigned error fails. See de Vries v. L & L
Custom Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).
(ii) Statutory Definition of Negligence
Lear assigns that the district court erred in instructing the
jury using the statutory definition of negligence. We find the
instruction as given was neither confusing nor misleading.
a. Additional Facts
The district court instructed the jury using both the pat-
tern jury instruction for the duty of a health care provider,
NJI2d Civ. 12.01, and the statutory definition of malpractice,
§ 44-2810. The district court combined the definitions so that
the jury received only one instruction on the definition of mal-
practice. The instruction stated:
This is an action based on a claim of malpractice,
sometimes 	called 	professional 	negligence. 	Nebraska’s
Medical-Professional [L]iability Act provides:
“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 locali-
ties. In determining what constitutes reasonable and ordi-
nary care, skill, and diligence on the part of a health care
provider in a particular community, the test shall be that
which health care providers, in the same community or in
similar communities and engaged in the same or similar
lines of work, would ordinarily exercise and devote to the
benefit of their patients under like circumstances.”
Therefore, a health care provider such as a physician
or hospital has the duty to possess and use the care, skill,
and knowledge ordinarily possessed and used under like
circumstances by other health care providers such as a
physician or hospital engaged in a similar practice in the
same or similar communities.

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We are here concerned with highly specialized fields
with which laymen cannot be expected to be familiar.
Accordingly, the standard of care of the required skill
and knowledge to be exercised must necessarily be estab-
lished by expert witnesses who are learned in the field
of medicine. You must not, therefore, arbitrarily set your
own standards, but you should determine the standard of
care or required skill and knowledge from the testimony
of the expert witnesses who testified in this case.
b. Analysis
Lear contends that the first paragraph, the statutory defini-
tion, was redundant and confusing to the jury and should not
have been given. In support of her argument, Lear cites this
court’s opinion in Vieregger v. Robertson, 9 Neb. App. 193,
609 N.W.2d 409 (2000). We find Vieregger distinguishable
from the present case.
In Vieregger, supra, the district court provided two instruc-
tions to the jury regarding the duty of a health care provider
and the definition of malpractice, one taken from NJI2d Civ.
12.01 and one taken from § 44-2810. We noted that the
Supreme Court had addressed the instructions to be given
in this situation and had disapproved of giving an additional
instruction along with NJI2d Civ. 12.01. Vieregger, supra, cit-
ing Burns v. Metz, 245 Neb. 428, 513 N.W.2d 505 (1994). Our
concern in Vieregger was that “adding the instruction with the
statutory definition was repetitive and could have caused the
jury confusion or misled it.” 9 Neb. App. at 204, 609 N.W.2d
at 417. That concern is not present in this case based on the
manner in which the district court chose to provide the statu-
tory definition of malpractice to the jury.
Here, the district court did not provide two separate instruc-
tions with two separate definitions. Rather, it provided the
jury with one instruction, integrating the pattern jury instruc-
tion into the statutory definition of malpractice. It first set
forth the statutory definition of malpractice or professional

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negligence, and then, through the use of the word “therefore,”
provided the pattern jury instruction, explaining how a health
care provider meets his or her duty.
Thus, the concern about confusing the jury that guided our
decision in Vieregger, supra, is not present here. We find that
the district court did not commit reversible error in defining
malpractice for the jury. The jury instructions correctly stated
the law, were not misleading, and adequately covered the
definition of professional negligence. See Rodriguez v. Surgical
Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018). Lear has failed
to show prejudicial error warranting reversal. This assignment
of error fails.
(iii) Methodist Defendants
Lear assigns that the district court erred in instructing
the jury that NMHS and TNMH were to be grouped as one
defendant. The jury instruction at issue provided in part that
NMHS and TNMH had the same interests in the case and that
if it found in favor of one, it must find in favor of both, and
if it found against one, it must find against both. Lear argues
this instruction was not a correct statement of law, especially
when considering the allegations of institutional negligence
that were presented at trial but not submitted to the jury.
However, Lear failed to object to this jury instruction. She
failed to preserve this issue, and we review for plain error. See
Foundation One Bank v. Svoboda, 303 Neb. 624, 931 N.W.2d
431 (2019). As discussed above, we reject Lear’s claim that
the district court erred in failing to instruct the jury on the
institutional claim relating to the hospital policy, which is the
basis for her argument that grouping the Methodist defendants
together was in error. Having reviewed the instruction at
issue, we find no plain error. This assignment of error fails.
2. Methodist Defendants’ Cross-Appeal
[10] The Methodist defendants have filed a cross-appeal,
assigning that the district court abused its discretion in fail-
ing to (1) exclude Novak’s testimony that was based solely

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on his personal practices and (2) exclude Glevy as an expert
witness or, alternatively, failing to exclude certain testimony
that was based solely on her personal practices. However,
because we have affirmed the judgment of the district court,
we need not address these assigned errors. An appellate court
is not obligated to engage in an analysis that is not necessary
to adjudicate the case and controversy before it. In re Interest
of Steven V., ante p. 256, 14 N.W.3d 18 (2024).
3. Batter Defendants’ Cross-Appeal
The Batter defendants have also filed a cross-appeal, assign-
ing, restated, that the district court erred in (1) receiving
Magee’s affidavit in opposition to Batter’s pretrial motion to
strike despite Batter’s objections, and (2) admitting Magee’s
testimony at trial. We have affirmed the judgment of the dis-
trict court and need not address these assigned errors as they
are not necessary to adjudicate the case and controversy before
us. See id.
VI. CONCLUSION
Having found no reversible error in any of the jury instruc-
tions refused or given, we affirm the judgment of the district
court. As resolution of the issues raised in the appellees’ cross-
appeals are not necessary to adjudicate the case and contro-
versy before us, we decline to address them.
Affirmed.