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Wattles v. Jex9/14/2004
(not designated for permanent publication)
INTRODUCTION
After heart surgery was performed on Harold L. Wattles, he brought this action against Dr. R. Kent Jex; Dr. Kiran Gangahar; Nebraska Heart Institute, P.C. (NHI); BryanLGH Medical Center (BryanLGH); and Dr. Dale A. Hansen (collectively appellees). Wattles appeals from an order of the district court for Lancaster County which sustained appellees' motions for summary judgment and determined ownership of and required him to return certain x rays to BryanLGH. We vacate and set aside the portion of the order determining ownership of the x rays, and we otherwise affirm.
BACKGROUND
Wattles' Claims
Wattles' second amended petition asserted claims against appellees for medical malpractice, including both specifications of negligence and res ipsa loquitur, lack of informed consent, intentional infliction of emotional distress, and negligent infliction of emotional distress. Wattles alleged that one or more of the appellees was negligent in (1) failing to inform Wattles prior to performing his coronary bypass surgery on June 29, 2000, at BryanLGH of the risks associated with such surgery; (2) using Wattles' mammary arteries in performing the coronary bypass surgery, when Wattles was an insulin-dependent diabetic; (3) failing to properly wire Wattles' separated sternum following the coronary bypass surgery; (4) failing to properly monitor and treat Wattles' elevated blood sugar level following the coronary bypass surgery; (5) prematurely discharging Wattles from BryanLGH after the coronary bypass surgery; and (6) failing to properly diagnose and treat Wattles when he complained that his "heart . . . was beating in his stomach." In their answer, appellees admitted that they participated in Wattles' medical care, but they denied any negligence on their part and alleged that Wattles' claims concerning purported intentional injuries were barred by the statute of limitations set forth in Neb. Rev. Stat. ยง 25-208 (Cum. Supp. 2002).
On July 9, 2002, BryanLGH filed a motion to compel Wattles to return certain x rays then in Wattles' possession, which motion the trial court subsequently granted. We discuss the motion and the ruling in more detail below.
Appellees filed motions for summary judgment, and the trial court conducted a hearing on those motions on September 19, 2002. The parties presented evidence through affidavits and depositions.
Appellees' Evidence
We first summarize the affidavits and depositions submitted by appellees. Jex, Gangahar, and Hansen were employed by NHI. None of these physicians were employed by BryanLGH; rather, they were independent medical professionals with hospital privileges. The physicians, rather than BryanLGH, directly supervised the nurses and the physician's assistant attending Wattles' surgery.
Jex was board certified as a cardiac, vascular, and thoracic care surgeon. Hansen was board certified in cardiology and internal medicine. Gangahar was a board-certified cardiologist. Each was familiar with the care given to Wattles and with the applicable standard of care. Each physician opined that the care provided to Wattles complied in all respects with the generally recognized standard of care in the community where the surgery occurred. They also testified that the physicians and the other medical personnel under their supervision did not do or fail to do anything that proximately caused any of Wattles' alleged injuries or damages.
BryanLGH employed two of the nurses who provided care to Wattles. These nurses were familiar with the applicable standard of care, the nursing care they provided to W
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