Thone v. Regional West Med. Ctr.

238 	275 Nebraska reports
of kawa. respondent’s actions demonstrate disrespect for this
court’s disciplinary jurisdiction. these actions also indicate a
lack of concern for the protection of the public, the profession,
and the administration of justice.
We have considered the undisputed allegations of the formal
charges and the applicable law. Upon due consideration, the
court finds that respondent should be disbarred from the prac-
tice of law in the state of Nebraska.
CoNCLUsIoN
the court finds that respondent violated Dr 1-102(a)(1), Dr
9-102(a)(1) and (2), rule 8.4, and his oath of office as an attor-
ney. We conclude that disbarment is the appropriate sanction.
It is therefore the judgment of this court that respondent be
disbarred from the practice of law in the state of Nebraska,
effective immediately. respondent is directed to comply with
Neb. Ct. r. of Discipline 16 (rev. 2004), and upon failure to do
so, respondent shall be subject to punishment for contempt of
this court. respondent is directed to pay costs and expenses in
accordance with Neb. rev. stat. §§ 7-114 and 7-115 (reissue
1997), disciplinary rule 10(p), and Neb. Ct. r. of Discipline 23
(rev. 2001) within 60 days after an order imposing costs and
expenses has been entered by this court.
J udgment of disbarment .
C ollette thone and anthony thone , appellants , v .
regional W est mediCal C enter et al ., appellees .
745 N.W.2d 898
Filed March 14, 2008. 	No. s-05-1556.
1. Summary Judgment. summary judgment is proper if the pleadings and admis-
sible 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. Summary Judgment: 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

3. Summary Judgment: 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.
4. Judgments: Appeal and Error. on questions of law, an appellate court is obli-
gated to reach a conclusion independent of the determination reached by the
court below.
5. Malpractice: Physician and Patient: Proof: Proximate Cause. to make a prima
facie case of medical malpractice, the plaintiff must show (1) the applicable stan-
dard 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.
6. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. as a general
matter, expert testimony is required to identify the applicable standard of care.
7. Malpractice: Expert Witnesses: 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.
8. Malpractice: Testimony: Proof. Lay testimony may suffice to establish a defen-
dant’s deviation from the standard of care.
9. Malpractice: Physicians and Surgeons: 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.
10. Expert Witnesses: Proximate Cause. expert testimony is almost always required
to prove proximate causation.
11. Malpractice: Expert Witnesses. 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.
12. ____: ____. 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.
appeal from the District Court for scotts bluff County:
randall l. lippstreu, Judge. affirmed.
brian M. Mumaugh and Gregory r. piche, of Holland &
Hart, L.L.p., for appellants.
William M. Lamson, Jr., and Molly M. Lukenbill, of Lamson,
Dugan & Murray, L.L.p., for appellees.
heaviCan , 	C.J., 	W right , 	gerrard , 	mCC ormaCk , 	and
miller -lerman , JJ.
tHoNe v. reGIoNaL West MeD. Ctr. 	239
Cite as 275 Neb. 238

240 	275 Nebraska reports
heaviCan , C.J.
I. INtroDUCtIoN
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 physi-
cians (collectively appellees) moved for summary judgment.
the district court granted appellees’ motion on the theory
that the thones had failed to meet their requirement of provid-
ing expert testimony to support their claims. the thones appeal,
arguing that the lack of expert testimony is not fatal to their
case. 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.
II. baCkGroUND
on approximately December 10, 2001, Collette had a gas-
tric band installed by Drs. Holloway and Forney at rWMC in
scottsbluff, Nebraska. the gastric band limits the quantity of
food that can be digested at one time and is intended to relieve
a patient’s obesity.
on May 16, 2002, while vacationing in Loveland, Colorado,
Collette experienced severe abdominal pain and nausea, appar-
ently caused by particles of food which were unable to pass
through the band. she initially went to a local hospital, but was
transferred to rWMC that same day. the parties dispute what
transpired in the 5 days after Collette arrived at rWMC. It is
clear, however, that on May 21, Dr. Holloway performed an
exploratory laparoscopic procedure and discovered that Collette
had a perforation in her stomach lining in the vicinity of the
gastric band. Holloway immediately removed the gastric band
and repaired the perforation. Collette was discharged from
rWMC on May 30.
the thones filed their complaint against appellees on May
14, 2004, alleging various acts of negligence by the medical
center and its physicians with regard to diagnosing and treat-
ing Collette’s ailments. appellees moved for summary judg-
ment. In support of their motion, appellees offered 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 affida-
vits: 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 manu-
facturer 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 mal-
practice 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 appel-
lees’ motion for summary judgment.
III. assIGNMeNts oF error
the thones generally assign that the district court erred
in concluding they had failed to demonstrate the existence
of a triable issue of fact as to the negligence of appellees.
specifically, the thones argue the district court erred by fail-
ing 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.
IV. staNDarD oF reVIeW
[1] summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genu-
ine 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.1
1 see Carruth v. State, 271 Neb. 433, 712 N.W.2d 575 (2006).
tHoNe v. reGIoNaL West MeD. Ctr. 	241
Cite as 275 Neb. 238

242 	275 Nebraska reports
[2] a party makes a prima facie case that it is entitled to
summary judgment by offering sufficient evidence that, assum-
ing the evidence went uncontested at trial, would entitle the
party to a favorable verdict.2 If the moving party makes such
a case, the burden then shifts to the nonmoving party to pro-
duce admissible contradictory evidence which raises a genuine
issue of material fact.3 If it cannot, summary judgment should
be granted.
[3,4] In reviewing a summary judgment, we view the evi-
dence in the light most favorable to the party against whom the
judgment was granted, giving that party the benefit of all rea-
sonable inferences deducible from the evidence.4 In conducting
our review, we are mindful of the fact that on questions of law,
an appellate court is obligated to reach a conclusion indepen-
dent of the determination reached by the court below.5
V. aNaLYsIs
the overarching issue in this appeal is whether the thones
carried their burden to raise a genuine issue of material fact
that appellees committed medical malpractice when treating
Collette for complications involving her gastric band. In sup-
port of their motion for summary judgment, appellees offered
affidavits from Drs. Forney and White, two of the named
defendants. In their affidavits, the physicians offered that in
their expert opinions, neither they nor any other defendant had
committed medical malpractice under the applicable standard of
care. Further, the physicians concluded that any acts or omis-
sions by themselves or any other defendant did not proximately
cause Collette’s injuries.
[5] at the summary judgment stage, it is well settled that
such self-supporting affidavits suffice to make a prima facie
2 see Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
3 see id.
4 see Plowman v. Pratt, 268 Neb. 466, 684 N.W.2d 28 (2004).
5 Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466, 730 N.W.2d 798
(2007).

case that the defendants did not commit medical malpractice.6
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.7 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.8
We discuss each element in turn.
1. standard of C are
[6] as a general matter, expert testimony is required to iden-
tify the applicable standard of care.9 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. First, the thones argue that expert
testimony is 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. second, the
thones argue that expert testimony is unnecessary to show that
appellees were negligent in diagnosing and treating Collette
because an instruction manual printed by the manufacturer of
Collette’s medical device set the standard of care. We address
each argument separately.
(a) 5-Day Delay and Common-knowledge exception
[7] We have long recognized that a party can make a prima
facie case of professional negligence even without expert tes-
timony 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 laymen.”10 this
6 see, e.g., Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001); Wagner v.
Pope, 247 Neb. 951, 531 N.W.2d 234 (1995).
7 see Wagner, supra note 6.
8 see Casey, supra note 6 (citing Neill v. Hemphill, 258 Neb. 949, 607 N.W.2d
500 (2000)).
9 see Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000).
10 Halligan v. Cotton, 193 Neb. 331, 336, 227 N.W.2d 10, 13 (1975).
tHoNe v. reGIoNaL West MeD. Ctr. 	243
Cite as 275 Neb. 238

244 	275 Nebraska reports
common-knowledge exception is limited to cases of extreme
and obvious misconduct. examples include failure to remove a
surgical instrument from a patient’s body following a procedure
or amputating an incorrect limb.11
In contrast, we have been reluctant to apply the common-
knowledge exception in cases where the alleged professional
misconduct was less than obvious without some degree of tech-
nical knowledge. For example, in Fossett v. Board of Regents, a
plaintiff attempted to invoke this exception by arguing that her
physician was negligent for failing to remove a large amount
of “bilious peritoneal fluid” which he discovered in her abdo-
men during an unrelated procedure.12 We declined to apply the
exception in Fossett because doing so would incorrectly assume
that “the trier of fact is capable of determining whether it is
accepted medical practice for a surgeon to leave bodily fluid
where it is found in a patient during an operation.”13
the thones rely on the common-knowledge exception for
their claim that appellees left Collette vomiting blood and
in excruciating pain for 5 days without taking any action.
although not as extreme as leaving a surgical instrument in a
patient or removing the wrong limb, a 5-day delay under such
circumstances is far more akin to those scenarios than what
was presented in Fossett. 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.”14
the Maryland supreme Court concluded that negligence
could be inferred under the common-knowledge exception when
a physician failed to attend to a patient who was struck by an
automobile and, although manifesting few outward indications
of trauma, was therefore likely to have suffered severe internal
11 Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004).
12 Fossett, supra note 9, 258 Neb. at 708, 605 N.W.2d at 469.
13 Id.
14 1 David W. Louisell & Harold Williams, Medical Malpractice § 8.05[4] at
8-81 (2007).

injuries.15 similarly, the Louisiana supreme Court found that an
on-call physician was obviously negligent for failing to come to
the hospital despite being informed that a patient had a medical
emergency which required his attention.16
these cases support the conclusion that negligence may be
inferred when a physician fails to timely attend to a patient
who bears serious injuries. We therefore hold 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 fore-
close a finding of negligence with respect to appellees’ alleged
failure to promptly diagnose and treat Collette.
(b) Negligent treatment and
Manufacturer-Instruction exception
the thones next argue that expert testimony is unneces-
sary to set the standard of care for their claims that appellees
were negligent in treating and diagnosing Collette’s complica-
tions. the thones contend that compliance with an instruction
manual supplied by bioenterics, the alleged manufacturer of
Collette’s gastric band, is itself the proper standard of care for
diagnosing and treating complications related to the band. In
making this argument, the thones invoke what might, for the
sake of convenience, be called 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.17 a minority of courts reject the idea that
15 Thomas v. Corso, 265 Md. 84, 288 a.2d 379 (1972).
16 Hastings v. Baton Rouge Gen. Hosp., 498 so. 2d 713 (La. 1986).
17 see, e.g., Rodriguez v. Jackson, 118 ariz. 13, 574 p.2d 481 (ariz. app.
1977); Garvey v. O’Donoghue, 530 a.2d 1141 (D.C. 1987); Ohligschlager v.
Proctor Comm. Hosp., 55 Ill. 2d 411, 303 N.W.2d 392 (1973); Terrebonne v.
Floyd, 767 so. 2d 758 (La. app. 2000); Nolan v. Dillon, 261 Md. 516, 276
a.2d 36 (1971).
tHoNe v. reGIoNaL West MeD. Ctr. 	245
Cite as 275 Neb. 238

246 	275 Nebraska reports
a manufacturer’s instruction constitutes prima facie evidence of
the standard of care. Instead, these courts hold that when unac-
companied by expert testimony, a manufacturer’s instructions
provide only “‘some evidence’” of the standard.18
because the thones cannot avoid summary judgment unless
they make out a prima facie case of medical malpractice,19
the difference between these two views is significant in this
case. We need not choose between these views here, however,
because we conclude that the bioenterics manual is not suf-
ficient to trigger the manufacturer-instruction exception. our
conclusion is predicated on the fact that cases applying the
manufacturer-instruction exception involved either a physician’s
alleged failure to follow instructions for the use of drugs20 or a
medical attendant’s failure to follow specific operating instruc-
tions for basic medical instruments such as an electrosurgical
mole remover,21 a heating pad,22 and a wound stapler.23 In
contrast, the thones’ allegations—and the instructions in the
bioenterics manual—primarily relate to diagnosing and treat-
ing complications involving the gastric band.
the Louisiana Court of appeal was presented with a similar
situation in Vinson v. Salmon.24 there, a burn victim claimed
that compliance with an article in a medical journal describ-
ing the proper treatment for burns was the standard of care
under a Louisiana case applying the manufacturer-instruction
exception. the court disagreed: “the Terrebone[25] case involved
18 Craft v. Peebles, 78 Haw. 287, 300, 893 p.2d 138, 151 (1995). see, Morlino
v. Medical Center, 152 N.J. 563, 706 a.2d 721 (1998); Spensieri v. Lasky,
94 N.Y.2d 231, 723 N.e.2d 544, 701 N.Y.s.2d 689 (1999); Grayson v. State
By Children’s Hosp., 838 p.2d 546 (okla. Civ. app. 1992); Ramon By and
Through Ramon v. Farr, 770 p.2d 131 (Utah 1989).
19 see Cerny, supra note 2.
20 see, e.g., Rodriguez, supra note 17 (streptomycin); Garvey, supra note 17
(tobramycin); Ohligschlager, supra note 17 (sparine).
21 Monk v. Doctors Hospital, 403 F.2d 580 (D.C. Cir. 1968).
22 Burke v. Pearson, 259 s.C. 288, 191 s.e.2d 721 (1972).
23 Christiana v. Sudderth, 841 so. 2d 911 (La. app. 2003).
24 Vinson v. Salmon, 786 so. 2d 913 (La. app. 2001).
25 Terrebonne, supra note 17.

the specific timing of a drug dosage. In contrast, the present
matter involves more complex medical issues, including the
appropriateness of the diagnosis and treatment provided by
[the treating physician]. thus, the cited case is not persuasive
support of plaintiff’s position.”26 Like the Louisiana Court of
appeal, we recognize 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 testi-
mony, 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 rely on the manufacturer-instruction excep-
tion 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. the manual specifically indicates that such
drugs ought to be used “with caution” because they can increase
the risk that the stomach lining around the device will erode.
Collette was using a prescription anti-inflammatory when she
had the device installed and claims appellees knew this yet
never warned her about the dangers of such use.
However, 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 combin-
ing NsaIDs with gastric bands. In fact, the manual does not
even instruct physicians to discontinue use of such medications;
it simply advises that they be used cautiously. as a result, no
reasonable argument can be made that appellees violated an
explicit instruction in the bioenterics manual by not advising
Collette of the dangers of continuing to use NsaIDs.
26 Vinson, supra note 24, 786 so. 2d at 916 (emphasis supplied).
tHoNe v. reGIoNaL West MeD. Ctr. 	247
Cite as 275 Neb. 238

248 	275 Nebraska reports
In sum, 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 lay-
person can infer that a reasonable physician would not wait 5
days before rendering aid to a patient in Collette’s condition.
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 instruc-
tions set forth in the bioenterics manual when attending to
Collette’s ailments. We therefore turn to a discussion of the
other two elements of a prima facie case of medical malpractice
as they relate to the thones’ delay-of-treatment claim.
2. deviation from standard of C are
Having concluded that expert testimony is unnecessary to
prove that a reasonable physician would not leave a patient
vomiting blood and languishing in pain for a period of 5 days
without some care, the next issue is whether the thones can
raise a genuine issue as to whether appellees deviated from that
standard of care. More precisely, the specific issue is whether
the thones provided sufficient evidence that appellees in fact
failed to treat Collette for the 5-day period between May 16
and 21, 2002.
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 defen-
dant’s deviation from the standard of care.27 other courts are
more particular and hold that “[e]xpert testimony is generally
required in medical malpractice cases to establish the standard
of care and to prove causation, except where the lack of reason-
able care or the existence of proximate cause is apparent to the
average layman from common knowledge or experience.”28 the
27 see, e.g., Travers v. District of Columbia, 672 a.2d 566 (D.C. 1996).
28 Williamson v. Amrani, 283 kan. 227, 244, 152 p.3d 60, 72 (2007). see, also,
Cox v. Jones, 470 N.W.2d 23 (Iowa 1991); Rodriguez v. Clarke, 400 Md. 39,
926 a.2d 736 (2007).

rationale is that the standard of care and proximate causation
tend to involve highly technical matters “outside the knowledge
of the average person without specialized training.”29 as such,
other than a situation in which the applicable standard of care
or causation are sufficiently obvious that they may be inferred
without proof, establishing those two elements either requires
expert testimony or, in the case of the standard of care, a manu-
facturer’s instruction. We have also indicated that a physician’s
own admission may suffice to establish the standard of care or
proximate causation.30
In contrast, however, identifying a deviation from an estab-
lished standard of care has the potential to be much more
straightforward. In many cases, proof that the physician devi-
ated from an established standard may require nothing more
than some credible testimony from a lay witness that the phy-
sician did or did not conform to the standard. For example, in
Healy v. Langdon,31 the plaintiff, James Healy, submitted an
affidavit in which he asserted that his wife’s physician failed
to properly inform the Healys of the risks associated with her
chemotherapy. Healy had already presented evidence suggest-
ing that a reasonable physician would have advised a patient
of the risks associated with chemotherapy. although Healy was
a layperson, we held that his affidavit was sufficient to raise a
genuine issue of fact as to whether the physician in fact devi-
ated from the standard of care by not properly informing the
Healys of the risks involved.32
[8] the result in Healy supports the conclusion that lay tes-
timony may suffice to establish a defendant’s deviation from
the standard of care. We need not resolve here whether the
ability to establish the deviation element with lay testimony is
an exception or the norm. Instead, we simply conclude that this
case presents a situation in which lay testimony alone is suf-
ficient to show a deviation from the standard of care.
29 Perkins v. Susan B. Allen Memorial Hosp., 36 kan. app. 2d 885, 888, 146
p.3d 1102, 1105-06 (2006).
30 Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994).
31 Id.
32 see id.
tHoNe v. reGIoNaL West MeD. Ctr. 	249
Cite as 275 Neb. 238

250 	275 Nebraska reports
We have 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 per-
sonal knowledge as to whether appellees did in fact neglect
Collette for 5 days.
as was true in Healy, it appears the only admissible evi-
dence on this point is Collette’s own affidavit in which she
asserts that she was neglected by appellees during the 5-day
period. although appellees dispute this assertion, we must
view the facts in a light most favorable to the thones, the
nonmoving party, by giving them the benefit of the doubt in
factual disputes.33 We hold that Collette’s assertions of neglect
create a genuine issue of material fact. We turn, therefore, to
the third and final element of the thones’ medical malpractice
claim—proximate causation.
3. proximate C ausation
[9] appellees offered expert testimony indicating that any
acts or omissions of appellees were not the proximate cause
of Collette’s injuries. this evidence shifted the burden to the
thones to provide contrary evidence on the issue of proximate
causation.34 In the medical malpractice context, the element of
proximate causation requires proof that the physician’s devia-
tion from the standard of care caused or contributed to the
injury or damage to the plaintiff.35
[10-12] expert testimony is almost always required to prove
proximate causation. Nevertheless, as with the standard of care,
the common-knowledge exception applies to proximate causa-
tion 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
33 see Plowman, supra note 4.
34 see, Cerny, supra note 2; Casey, supra note 6.
35 Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004).

obvious to laypersons.36 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. as such, it does not nec-
essarily follow that causation can be inferred pursuant to the
common-knowledge exception simply because a physician’s
negligence might be so inferred.
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.
In addressing this question, we are persuaded by Parker v.
Central Kansas Medical Center,37 a case in which a patient who
suffered injuries to her abdomen and colon during a horse riding
accident sued a physician because the physician had refused to
operate on her. the plaintiff in Parker asserted that, among other
things, the physician’s “refusal to examine, diagnose, or treat”
her was obviously the cause of her injuries under the common-
knowledge exception.38 the court disagreed, noting that “without
expert testimony, a jury of laypersons would not be competent
to decide whether any of plaintiff’s post-accident complications
were caused by [the physician’s] conduct or whether such com-
plications were merely the result of her injuries sustained as a
consequence of the horse riding accident.”39
the same can be said of this case. Without expert testi-
mony, 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
36 see, McVaney v. Baird, Holm, McEachen, 237 Neb. 451, 466 N.W.2d 499
(1991); Williamson, supra note 28.
37 Parker v. Central Kansas Medical Center, 178 F. supp. 2d 1205 (D. kan.
2001).
38 Id. at 1214.
39 Id.
tHoNe v. reGIoNaL West MeD. Ctr. 	251
Cite as 275 Neb. 238

252 	275 Nebraska reports
matter how diligent appellees had been. therefore, despite their
ability to satisfy the elements in their prima facie case concern-
ing the standard of care and appellees’ deviation from it, sum-
mary judgment was nonetheless appropriate given the thones’
lack of evidence on the issue of proximate causation.
VI. CoNCLUsIoN
the thones attempt to account for their lack of expert
testimony on the proper standard of care by invoking the
common-knowledge and manufacturer-instruction exceptions.
We conclude that the bioenterics manual does not establish the
standard of care. as such, summary judgment was proper for
the thones’ negligence claims based on the alleged failure to
follow the manufacturer’s instruction manual.
the thones have raised a genuine question of material fact
that appellees’ 5-day delay in treating Collette was negligent
under the common-knowledge exception. However, we none-
theless find that their failure to provide expert testimony on the
issue of proximate causation is fatal to this claim. We therefore
affirm the district court’s summary judgment.
affirmed .
C onnolly, J., participating on briefs.
stephan, J., not participating.
gerrard , J., concurring.
I agree with the majority regarding the general legal prin-
ciples applicable to this case and with the affirmance of the
district court’s summary judgment. but my review of the record
leads me 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.
to begin with, I find it unnecessary to address the standard
of care for the “negligent treatment” claim because the record
clearly establishes the plaintiffs’ lack of competent evidence
with respect to causation. Collette’s affidavit asserts that the

defendants departed from the alleged “standard of care,” i.e.,
the manufacturer’s instructions for the gastric band, in several
ways. In particular, the plaintiffs claim that the defendants did
not warn Collette of the risks associated with the procedure
or the use of anti-inflammatory drugs, did not immediately
remove the band or perform an x ray after her symptoms pre-
sented, did not perform an upper gastrointestinal tract x ray
(GI) preoperatively or before band inflation or adjustment, and
performed her first adjustment less than 6 weeks after her oper-
ation. Collette asserted in her affidavit that “[h]ad Defendants
gone in and removed the band at the onset of [her] vomiting
and abdominal pain, the band could have been removed via
laparoscopy, rather than cutting [her] open from the top to the
bottom of her stomach.”
but those are precisely the sort of conclusions that must be
supported by expert medical testimony. as the majority opinion
observes, causation may be inferred without expert testimony
only if the causal link between the defendants’ negligence and
the plaintiff’s injuries is sufficiently obvious to laypersons.
and neither Collette nor her mother, as lay witnesses, are
qualified to establish a causal link between the plaintiffs’ dam-
ages and any of the defendants’ claimed deviations from the
manufacturer’s instructions. For example, a determination of
whether Collette’s gastric band could have been immediately
removed by laparoscopy, rather than more invasive surgery, is
beyond her expertise as a lay witness. Whether a preoperative
GI would have prevented Collette’s complications is beyond
her expertise. and Collette does not aver that her decision to
have the band installed, or any subsequent actions, would have
been different had she been more informed of the risks associ-
ated with the procedure.
In short, there is no competent evidence in the record to
rebut the defendants’ evidence that their alleged deviations
from the manufacturer’s instructions did not proximately cause
the plaintiffs’ damages. and given that, I see no need to opine
on the more difficult question whether the manufacturer’s
instructions were evidence of the standard of care.
I also have a different view with respect to the plaintiffs’ claim
of damages from a “5-day delay” in treating Collette’s injuries.
tHoNe v. reGIoNaL West MeD. Ctr. 	253
Cite as 275 Neb. 238

254 	275 Nebraska reports
she alleged, supported by her affidavit, that she endured pain
and suffering during the 5 days between May 16, 2002, when
she was admitted to the hospital, and the May 21 exploratory
laparotomy and removal of the gastric band. according to
the majority opinion, the plaintiffs’ evidence would support a
finding that the defendants completely failed to treat Collette
during that time and that this lack of treatment breached the
standard of care.
However, I read the record differently on this issue. In par-
ticular, I do not believe that the plaintiffs presented competent
evidence of a breach of the standard of care. the defendants’
affidavits averred the following sequence of events:
on December 10, 2001, [Collette] underwent place-
ment of a laparoscopic adjustable gastric band. on May
16, 2002, [she] ate some foods that would not go through
the band and experienced a prolonged episode of intense
esophageal spasms and retching which lasted for approxi-
mately 16 hours. she was seen in a Loveland, Colorado
emergency room, and then transferred to the office of
Western surgical Group. there, Dr. Holloway examined
her and removed all of the fluid from her band. He then
admitted her to [rWMC] with orders for her to have noth-
ing by mouth.
at rWMC, [Collette] was monitored, and given IV
fluids, and pain medications. When her symptoms contin-
ued, an upper GI was performed, and reportedly indicated
an obstruction at the level of the band, which appeared
to have migrated distally. [Collette] was scheduled for a
revision of her lap band. Due to a change in [Collette’s]
condition, however, Dr. Holloway instead performed a
laparoscopy followed by an exploratory laparotomy on
May 21, 2002. Finding that there was a gastric perfora-
tion, he removed the adjustable gastric band, and per-
formed a partial gastric resection.
[Collette] was dismissed from the hospital on May
30, 2002. by that time, she was ambulating without dif-
ficulty, had good pain control, and was tolerating her diet
well. testing at that time revealed no evidence of any
gastric leak.

admittedly, Collette’s affidavit avers, quite generally, that
when she was admitted to the hospital, “[t]he Defendants
waited five days before the[y] did anything.” but that statement
appears in her affidavit as a response to quoted sections of
the manufacturer’s instructions, which identify circumstances
under which removal of the gastric band may be necessary.
read in context, it is obvious that the statement that the defen-
dants “waited five days before the[y] did anything” means that
despite her symptoms, the defendants waited 5 days to remove
the gastric band—not that the defendants did absolutely nothing
to diagnose or treat Collette while she was hospitalized.
and the plaintiffs’ complaint alleges, consistent with the
defendants’ evidence, that Collette was admitted to the hospital
on May 16, 2002, and that Dr. Holloway drained the fluid from
the gastric band. (the band is placed around the stomach and
inflated with sterile saline to create the proper stoma diameter,
and the stoma size can be adjusted postoperatively by inject-
ing or aspirating saline.) the plaintiffs also alleged that x rays
were taken on May 19 and reviewed on May 20. In sum, the
allegations in the plaintiffs’ complaint are consistent with the
defendants’ evidence and contradict the possibility that the
defendants completely failed to treat Collette during her initial
5-day hospital stay.
In short, the defendants presented evidence that when Collette
presented, they deflated her gastric band and admitted her to the
hospital for observation. When she did not improve, diagnostic
procedures were performed and the defendants performed sur-
gery and removed the gastric band. the plaintiffs’ complaint is
consistent with this account, and I do not read Collette’s affi-
davit as contradicting it. In other words, the factual issue pre-
sented by this record is not whether the defendants completely
failed to treat Collette—it is whether the defendants’ treatment
met the standard of care.
therefore, it was the plaintiffs’ burden to present evidence
contradicting the defendants’ evidence that their treatment did
not breach the standard of care. More specifically, it was the
plaintiffs’ burden to present expert medical testimony to support
a finding that the defendants’ treatment fell below the standard
of care. the plaintiffs’ claim, essentially, is that the defendants
tHoNe v. reGIoNaL West MeD. Ctr. 	255
Cite as 275 Neb. 238

256 	275 Nebraska reports
should not have waited 5 days to remove Collette’s gastric
band. that claim must be supported by expert opinion. Without
it, the plaintiffs did not rebut the defendants’ prima facie case
that they did not breach the standard of care during the 5-day
span at issue.
For those reasons, I conclude that the plaintiffs failed to
show a genuine issue of material fact precluding judgment as a
matter of law, and I concur in the judgment.