Rankin v. Stetson

and Case, precluded Case from relitigating the wrongfulness
of her decision to counsel Richmond to relinquish custody of
Amanda. A violation of Richmond’s constitutional rights as a
parent would also result in a violation of Amanda’s reciprocal
constitutional rights as a child. Therefore, under the doctrine
of collateral estoppel, the judgment in CI99-82 precluded Case
from disputing the fact that she violated Amanda’s constitu-
tional rights.
The district court also did not err in concluding that Case’s
violation of Amanda’s rights resulted in actual harm to Amanda.
The evidence shows that the relinquishment that Case wrong-
fully orchestrated was a substantial factor in Amanda’s down-
ward social spiral. Nor did the court err in considering such
evidence at the summary judgment stage.
Finally, there are no genuine issues of material fact regard-
ing Case’s liability to Amanda. Any factual disputes regarding
Case’s actual conduct are made irrelevant by the preclusive
effect of the judgment in CI99-82. Similarly, the fact that
Amanda might not have reunited with Richmond even if Case
never intervened is irrelevant. The evidence shows that the
relinquishment in and of itself caused harm to Amanda. From
the above, we conclude that the district court did not err in
granting summary judgment to Amanda.
aFFiRmed .
shaRon k. R ankin , appellant , v .
w.k. stetson , m.d.,
et al ., appellees .
749 N.W.2d 460
Filed May 23, 2008. 	No. S-07-073.
1. 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 is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
2. Rules of Evidence. In proceedings where the Nebraskae vidence Rules apply, the
admissibility of evidence is controlled by such rules; judicial discretion is involved
only when the rules make such discretion a factor in determining admissibility.
RANkIN v. STeTSON 	775
Cite as 275 Neb. 775
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:55 AM CST

776 	275 NeBRASkAR ePORTS
3. Trial: Expert Witnesses: Appeal and Error. The admission of expert testimony
is ordinarily within the trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion.
4. Rules of Evidence: Expert Witnesses. Where the rules of evidence apply, the
admissibility of an expert’s testimony, including an opinion, which is based on
a scientific principle or on a technique or process which utilizes or applies a
scientific principle, depends on general acceptance of the principle, technique, or
process in the relevant scientific community.
5. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
6. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate it is entitled to judgment as a matter of law.
7. ____: ____. A movant for summary judgment makes a prima facie case by pro-
ducing enough evidence to demonstrate that the movant is entitled to a judgment
if the evidence were uncontroverted at trial. Then, the burden of producing evi-
dence shifts to the party opposing the motion.
8. Malpractice: Physician and Patient: Proof: Proximate Cause. In a malpractice
action involving professional negligence, the burden of proof is upon the plaintiff
to demonstrate the generally recognized medical standard of care, that there was
a deviation from that standard by the defendant, and that the deviation was the
proximate cause of the plaintiff’s alleged injuries.
Appeal from the District Court for Dawes County: paul
d. 	empson, 	Judge. 	Reversed 	and 	remanded 	for 	further
proceedings.
Marenl ynn Chaloupka and Robert Paul Chaloupka, of
Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, for
appellant.
lonnie R. Braun, of Thomas, Nooney, Braun, Solay &
Bernard,l .l.P., for appellees.
heavican, 	C.J., 	wRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
wRight, J.
NATURe OF CASe
Sharonk . Rankin sued her treating physicians and the
Chadron Medical Clinic, P.C. (collectively defendants), for
negligently failing to properly diagnose and treat her spi-
nal cord injury. Following the completion of discovery, all

defendants moved to strike the testimony of Rankin’s expert
witness and also moved for summary judgment on the issue of
proximate causation. The district court sustained both motions.
Rankin appeals, claiming the court erred in sustaining the
defendants’ motions.
SCOPe OF ReVIeW
[1] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment is granted and gives such party the
benefit of all reasonable inferences deducible from the evidence.
Wolski v. Wandel, ante p. 266, 746 N.W.2d 143 (2008).
[2,3] In proceedings where the Nebraskae vidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
such discretion a factor in determining admissibility. Karel v.
Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).
The admission of expert testimony is ordinarily within the
trial court’s discretion, and its ruling will be upheld absent an
abuse of discretion. In re Trust of Rosenberg, 273 Neb. 59, 727
N.W.2d 430 (2007).
FACTS
On October 31, 2002, Rankin was injured when she fell
on ice near her residence in Chadron, Nebraska. She was
examined in a Chadron hospital emergency room by Dr. W.k.
Stetson. He ordered x rays and an MRI of the lumbar spine,
which images showed no injury. Rankin was released from the
hospital on November 3. She was directed to follow up with Dr.
C.A. Sutera, her personal physician. She underwent physical
therapy, but her symptoms persisted.
Sutera referred Rankin to Dr. Brent Peterson, a neurosurgeon.
An MRI of her entire spine in February 2003 revealed a disk
herniation at the T10-11 level with spinal stenosis. Peterson
diagnosed Rankin with thoracic myelopathy, likely due to the
ruptured disk at T10-11. He recommended a diskectomy and
“fusion of T10-11 with autograft and rod and screw fixation.”
Peterson believed that the surgery was not an emergency at that
point, since the compression had occurred a few months earlier.
RANkIN v. STeTSON 	777
Cite as 275 Neb. 775

778 	275 NeBRASkAR ePORTS
During the following months, Rankin sought several opin-
ions. Dr. Curtis Dickman, a neurosurgeon, saw Rankin on May
12, 2003. By that time, she had seen three other surgeons,
who had all recommended surgery, but Dickman was the only
surgeon who recommended thoracoscopic surgery rather than
an open thoracotomy, which requires a large incision in the
chest wall. Dickman operated on Rankin to fuse T10-11 of
the spine.
Rankin recovered satisfactorily but was unchanged neuro-
logically. By October 2003, the disk herniation was no longer
evident and there was no residual compression of the spinal
cord. However, Rankin continued to experience pain. Dickman
recommended rigid fixation with screws and rods in her spine.
Following the second surgery, Rankin was fitted with a brace
to maintain alignment of the fused segments. By December,
she was walking independently, although she reported using a
walker intermittently.
On March 8, 2004, Dickman reported that the bone in
Rankin’s spine was fusing, and radiographs showed the forma-
tion of new bone. Rankin had persistent spasticity in her lower
extremities, but she was walking without a walker. She had
barely detectable weakness of the legs. Dickman recommended
physical therapy to strengthen Rankin’s back and abdominal
muscles and to work on her endurance. He recommended
she discontinue use of the brace, because the fusion had
healed satisfactorily.
In October 2004, Dickman determined that Rankin was neu-
rologically stable. She still had very mild weakness of the legs,
spasticity, and local tenderness and pain at the site of the surgery.
When Dickman saw Rankin on March 7, 2005, she had pain and
spasticity, but there was no significant change. He again recom-
mended physical therapy to help with her walking.
Rankin filed her complaint on October 28, 2004, alleging that
the defendants’ delay in diagnosing the damage to her spinal
cord and their failure to repair it left her with permanent dam-
age to her spinal cord and permanent impairment in her lower
extremities. She alleged that the delay in diagnosis and the
subsequent damage were proximately caused by the negligence
of the defendants in failing to order “appropriate studies” in

a timely manner. In separate answers, the defendants denied
Rankin’s allegations and asserted that Rankin unreasonably
delayed in following physician directions and may have caused
some or all of her alleged damages.
Prior to trial, the defendants moved to exclude the testi-
mony of Rankin’s expert, Dr. Michael Brown, a neurosurgeon.
Brown’s affidavit contained a summary of his testimony to be
offered at trial and the information upon which his opinions
were based. Brown had been in private practice since 1985
and had completed a 5-year residency in neurosurgery at the
University of Arkansas for Medical Sciences, where he received
his medical degree. He was certified by the American Board of
Neurological Surgery.
Based on reasonable medical probability, Brown stated that
the neurological deficits Rankin currently suffered were per-
manent and were the result of her fall and the disk’s contacting
the spinal cord at the T10 level. Brown opined it was more
likely than not that Rankin would have recovered if the surgical
repair had occurred within the first 72 hours after her injury.
He also believed that Rankin’s chance of avoiding permanent
injury decreased each day after the 72-hour period until she
was finally diagnosed with the thoracic disk herniation with
resultant spinal cord compression and thoracic myelopathy.
Brown had reviewed Rankin’s medical records and her lum-
bar and thoracic MRI studies. His opinions were based on the
training he received in medical school and his residency, his
20 years of experience in dealing with spinal cord injuries,
information from discussions with colleagues and fellow neuro-
surgeons, and attendance at conferences.
Brown opined that the general standard for treating spinal
cord injuries was to operate on the patient as soon as it could be
accomplished if there was no significant reason which argued
against surgery and that 72 hours was the general standard.
The district court excluded Brown’s testimony based on the
principles of Schafersman v. Agland Coop, 262 Neb. 215, 631
N.W.2d 862 (2001).
The district court granted the defendants’ subsequent sum-
mary judgment motion and dismissed the complaint. It con-
cluded that Rankin had failed to produce competent expert
RANkIN v. STeTSON 	779
Cite as 275 Neb. 775

780 	275 NeBRASkAR ePORTS
testimony or evidence showing that any actions or inactions
of the defendants proximately caused the injury complained of
by Rankin.
ASSIGNMeNTS OFe RROR
Rankin asserts that the district court erred in sustaining the
defendants’ motion to strike Brown’s testimony and in sustain-
ing the defendants’ motion for summary judgment.
ANAlYSIS
exclusion oF bRown ’ s testimony
In refusing to allow Brown to give his opinion, the district
court concluded that Brown failed to disclose the underlying
facts or data for his opinions as required under Neb.e vid. R.
705, Neb. Rev. Stat. § 27-705 (Reissue 1995). It also held that
Brown did not qualify to give his opinion under Neb.e vid.
R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1995), because he
failed to set forth any methodology from which it could be
determined that his opinions arose from facts or procedures that
could be tested.
[4] In proceedings where the Nebraskae vidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules make
such discretion a factor in determining admissibility. Karel v.
Nebraska Health Sys., 274 Neb. 175, 738 N.W.2d 831 (2007).
The admission of expert testimony is ordinarily within the
trial court’s discretion, and its ruling will be upheld absent an
abuse of discretion. In re Trust of Rosenberg, 273 Neb. 59, 727
N.W.2d 430 (2007). Where the rules of evidence apply, the
admissibility of an expert’s testimony, including an opinion,
which is based on a scientific principle or on a technique or
process which utilizes or applies a scientific principle, depends
on general acceptance of the principle, technique, or process in
the relevant scientific community. Schafersman, supra.
Rule 702 states: “If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evi-
dence 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.” We

have held that pursuant to rule 705, “‘“an expert’s opinion is
ordinarily admissible if the witness (1) qualifies as an expert,
(2) has an opinion that will assist the trier of fact, (3) states
his or her opinion, and (4) is prepared to disclose the basis of
that opinion on cross-examination.”’” City of Lincoln v. Realty
Trust Group, 270 Neb. 587, 594, 705 N.W.2d 432, 439 (2005),
quoting Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d
541 (2004).
In Schafersman v. Agland Coop, 262 Neb. 215, 225, 631
N.W.2d 862, 872 (2001), we stated:
The Daubert standards require proof of the scien-
tific 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.
Under Daubert, supra, when faced with a proffer of expert
scientific testimony, a trial judge must determine at the
outset whether the expert is proposing to testify to (1)
scientific knowledge that (2) will assist the trier of fact
to understand or determine a fact in issue. This entails a
preliminary assessment whether the reasoning or method-
ology underlying the testimony is scientifically valid and
whether that reasoning or methodology properly can be
applied to the facts in issue. Daubert, supra.
The U.S. Supreme Court has set out a number of consid-
erations that a trial court may use to evaluate the validity of
scientific testimony, which 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 publica-
tion; (3) the known or potential rate of error, and the exis-
tence and maintenance of standards controlling the technique’s
operation; and (4) the “general acceptance” of the theory or
technique. Schafersman, supra, citing Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125l .
ed. 2d 469 (1993).
In the case at bar, Brown was asked to give his opinion
whether Rankin received the appropriate treatment at the hos-
pital when she was admitted and during the 3 days until she
was released. The subject of Brown’s opinion was whether a
patient with the type of injury sustained by Rankin should have
RANkIN v. STeTSON 	781
Cite as 275 Neb. 775

782 	275 NeBRASkAR ePORTS
had surgery within 72 hours of the injury. The district court,
in applying the principles of Daubert/Schafersman, acted as a
gatekeeper to ensure that the reasoning or methodology underly-
ing the expert testimony was valid and properly applied to the
facts in issue. Because Brown failed to disclose the underlying
facts or data for his opinions under rule 705, Brown did not
qualify to give his opinion under rule 702.
In his deposition, Brown was asked to define “more likely
than not.” He stated:
Well, that’s what it says. I guess, you know, you could
say 51/49. If, you know, 51 percent get better, then you
could say it’s more likely than not. But based on my
experience with these, and it’s limited, you know, but in
my knowledge, and I have read about these things, I have
been educated on these things, go to meetings on these
things, and I know about myelopathy; just based on my
knowledge, the patient has a better opportunity to recover
fully if they’re operated more promptly, if it’s recognized
and dealt with.
Brown was asked for the basis of his opinion concerning the
72-hour timeframe. He stated: “I couldn’t sit here and quote
you . . . specific articles at this point, no. I mean, there’s some
literature out there that talks about 24 hours or two weeks, you
know. But as far as the 72-hour figure that I gave, no, I can’t
give you anything specific on that.” When asked where the
72-hour standard came from, Brown said: “Well, that’s a good
question. Primarily, that’s just based on what my opinion is on
when they should be done after they’re discovered.” Brown said
there is a controversy in his profession about the optimal tim-
ing: “I think people still wonder exactly what the right timing
is.” Brown said there is a big difference between early surgery
and later surgery in acute disk herniations. Asked whether he
agreed that most of the rapid changes in the spinal cord tissues
occur within 8 hours or less, Brown said,
You know what? I really am not an expert on what’s hap-
pening physiologically there. What I’m basing my opinions
on are clinical outcomes. So I don’t know in any given case
how long it’s going to take for you to get permanent changes

in the spinal cord, you know, before surgery wouldn’t help.
I really don’t know what that time frame is.
Brown 	was 	asked 	what 	happens 	after 	72 	hours, 	and
he stated:
Well, in any given patient, again, I’m testifying as to
what’s more likely than not. And that 72-hour standard is
one where I feel — and, again, this is partially based upon
my training — not partially. It’s based upon my training
and experience. But what I’m saying is, if you operate
before 72 hours, it’s more likely than not they’re going to
make a full recovery. After that 72-hour period, then I think
their chances diminish for them making a full neurologi-
cal recovery.
Brown said he was not aware of any peer-reviewed literature
that would support his opinion concerning the 72-hour period.
Although he had no way to quantify how Rankin’s deficits were
increased or exacerbated by delaying surgery for more than
72 hours, Brown stated it would have been very unlikely for
Rankin to make a complete recovery.
The defendants objected to Brown’s opinion, and the district
court excluded his testimony. A trial judge may consider a
number of factors that might bear on its gatekeeping function.
These factors include whether a theory can be, and has been,
tested; whether the theory has been subjected to peer review
and publication; and whether the theory enjoys “general accept-
ance” within a relevant scientific community. See Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). Brown
was unable to state that his theory concerning the timeframe for
spinal surgery had been tested in any way. He was also unable
to provide a basis for his 72-hour theory. He could not cite
any peer-reviewed literature to support his theory, and he did
not provide any testimony to suggest that the 72-hour theory is
generally accepted.
The admission of expert testimony is ordinarily within the
trial court’s discretion, and its ruling will be upheld absent
an abuse of discretion. In re Trust of Rosenberg, 273 Neb. 59,
727 N.W.2d 430 (2007). The district court rejected Brown’s
testimony based on the principles announced in Schafersman,
RANkIN v. STeTSON 	783
Cite as 275 Neb. 775

784 	275 NeBRASkAR ePORTS
supra. We conclude that the court’s refusal to admit Brown’s
testimony into evidence was not an abuse of discretion.
summaRy J udgment
[5] Rankin claims that the district court erred in granting
summary judgment in favor of the defendants. Summary judg-
ment is proper when the pleadings and evidence admitted at the
hearing disclose no genuine issue regarding any material fact
or the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of
law. Wolski v. Wandel, ante p. 266, 746 N.W.2d 143 (2008). In
reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom
the judgment is granted and gives such party the benefit of all
reasonable inferences deducible from the evidence. Id.
In their motion for summary judgment, the defendants alleged
that Rankin could not produce any competent evidence to prove
that the defendants’ alleged medical negligence proximately
caused any injury to her. The district court found that Rankin
had not produced competent expert testimony or evidence
showing that any actions or inactions of the defendants proxi-
mately caused the injury of which Rankin complained.
[6,7] The party moving for summary judgment has the bur-
den to show that no genuine issue of material fact exists and
must produce sufficient evidence to demonstrate it is entitled
to judgment as a matter of law. Glad Tidings v. Nebraska Dist.
Council, 273 Neb. 960, 734 N.W.2d 731 (2007). A movant for
summary judgment makes a prima facie case by producing
enough evidence to demonstrate that the movant is entitled to
a judgment if the evidence were uncontroverted at trial. Then,
the burden of producing evidence shifts to the party opposing
the motion. Id.
In support of their motion for summary judgment on the issue
of causation, the defendants offered published medical articles.
One article stated that despite its widespread use in patients
with acute spinal cord injury, the role of surgery in improving
neurological recovery remained controversial. It opined that
the role and timing of surgical decompression after an acute
spinal cord injury remained one of the most controversial topics

pertaining to spinal surgery. The other printed article dealt with
a subgroup of patients with very large thoracic disk herniations.
It stated there was scant literature on the treatment options and
outcome of such patients.
There is some question whether the defendants’ evidence
made a prima facie case that entitled them to summary judg-
ment. Medical literature which opines that the role of surgery in
cases of acute spinal cord injuries remains controversial would
not demonstrate that the defendants were entitled to judgment.
It is true that Rankin must establish causation at trial, but the
defendants must make a prima facie case at the summary judg-
ment stage. Assuming for purposes of this opinion that such
literature created a prima facie case in favor of the defendants,
as the court must have so found, Rankin has successfully rebut-
ted such evidence.
In opposition to the motion for summary judgment, Rankin
offered several affidavits, including the affidavit of Dr. Jeffrey
Gross, a neurosurgeon. Gross had reviewed Rankin’s medical
records, Dickman’s deposition, and certain evidence-based med-
ical literature. Gross was asked to address whether early surgical
decompression to relieve pressure on the spinal cord would have
made it more likely than not that Rankin would have recovered
with a lesser degree of neurological deficit. The defendants
made no objection to the admission of Gross’ affidavit.
From the materials he reviewed, Gross learned that immedi-
ately after the accident, Rankin suffered temporary total paraly-
sis of her lower extremities, numbness, and loss of feeling. She
had a “burning/tingling feeling” in her back and in the lower
abdomen, especially on the left side. Gross noted that although
Rankin had reported some improvement, the primary neuro-
logical deficits remained.
Gross stated that the longer a compressive spinal cord injury
existed without remediation, the less likely the patient would
regain lost neurological function. He stated that this principle
was consistent with the findings of Rankin’s treating doctors,
all of whom agreed that her condition would not correct itself
without surgery.
Gross further stated that medical literature supported his
opinion that early surgical decompression of the spinal cord will
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Cite as 275 Neb. 775

786 	275 NeBRASkAR ePORTS
more likely than not improve a patient’s prognosis and would
have led to an improved outcome for Rankin. He referred to
certain articles in the medical literature that recommended sur-
gical decompression at the earliest opportunity. He summarized
one article which stated that if disk herniation is treated with
early surgical decompression, the patient has a significantly
increased opportunity to experience a “good outcome.”
Gross was trained to understand that spinal cord compres-
sion constituted a surgical emergency, and he had applied that
training to his own practice. His board-certified peers and
colleagues agreed that spinal cord compression constituted a
surgical emergency. Gross noted that the phrase “the sooner,
the better,” as applied to when a patient should undergo surgi-
cal decompression of a disk herniation, was not a “vague or
cavalier statement.” He stated that a reasonable neurosurgeon
would agree that surgical decompression of a thoracic disk
herniation causing spinal cord compression with neurological
symptoms should occur within a matter of hours rather than
weeks or months.
Gross based his opinion upon his training in medical school,
his residency and spine fellowship, 14 years of experience in
dealing with spinal cord injuries, discussions of the issue with
fellow board-certified neurosurgeons, medical literature, and
conferences where the subject had been discussed. He opined
that the standard for treating such injuries was to operate within
a matter of hours unless there were significant reasons which
argued against surgery. Gross stated that evidence-based medi-
cine, experimental data, and the practice of reasonable surgeons
dictated that when a patient presented with an acute neuro-
logical change due to spinal cord compression, the appropriate
treatment was acute surgical decompression.
Gross also stated it was more likely than not that Rankin
would have had a better prognosis for neurological recovery if
her thoracic disk herniation had been properly diagnosed and
treated via surgical decompression by the morning after her
accident, and he stated that her chance of avoiding permanent
neurological injury decreased each day without surgery.
On 	appeal, 	the 	defendants 	argue 	that 	Gross’ 	opinions
were framed in terms of “loss of chance” and were therefore

insufficient to establish the defendants’ alleged negligence as a
proximate cause of Rankin’s injury. We agree that 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 recov-
ery 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 bet-
ter outcome is not the same as a chance of a better outcome.
Rather, it is a definite result. In this case, there were state-
ments within Gross’ affidavit that were sufficient to estab-
lish causation.
When reviewing a summary judgment, we view Gross’ affi-
davit in a light most favorable to Rankin and give her the bene-
fit 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 decom-
pression 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 tes-
timony to establish that the actions or inactions of the defend-
ants were a proximate cause of Rankin’s injury.
RANkIN v. STeTSON 	787
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788 	275 NeBRASkAR ePORTS
CONClUSION
[8] In a malpractice action involving professional negli-
gence, the burden of proof is upon the plaintiff to demonstrate
the generally recognized medical standard of care, that there
was a deviation from that standard by the defendant, and that
the deviation was the proximate cause of the plaintiff’s alleged
injuries. Karel v. Nebraska Health Sys., 274 Neb. 175, 738
N.W.2d 831 (2007). We view the evidence in the light most
favorable to Rankin and give her the benefit of all reasonable
inferences deducible from the evidence. See Neiman v. Tri R
Angus, 274 Neb. 252, 739 N.W.2d 182 (2007).
The issue presented was whether Rankin had produced com-
petent expert testimony showing that any actions or inactions
of the defendants were a proximate cause of her injury. Gross’
opinion that early surgical decompression would more likely
than not have led to an improved outcome for Rankin was
sufficient to establish an issue of fact concerning causation.
Since there remains a material issue of fact in dispute, the dis-
trict court erred in granting summary judgment. Therefore, we
reverse the judgment of the district court and remand the cause
for further proceedings.
R eveRsed and Remanded FoR
FuRtheR pRoceedings .