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Janky v. Alegent Health-Bergan Mercy Health Systems8/31/2004
(not designated for permanent publication)
Ronald J. Janky, Jr., appeals the decision of the district court for Douglas County dismissing the action after granting the motions for summary judgment filed by defendants Alegent Health-Bergan Mercy Health Systems (Alegent Health) and Dr. Michael J. Dunn.
FACTUAL AND PROCEDURAL BACKGROUND
On December 24, 2001, Janky filed his second amended petition in this case. In that petition, Janky alleged that on June 5, 1999, he was admitted to Alegent Health at approximately 3:23 a.m. with a posterior wall fracture dislocation of his left acetabulum and dislocated femoral head. Janky alleged defendant Dunn determined that Janky's condition was serious and that Janky should immediately be transferred to the University of Nebraska Medical Center (UNMC) for surgery. Janky alleged that he was not timely transferred and that when he was finally transferred to UNMC, he was unable to undergo surgery and sustained serious and permanent injuries. Janky alleged that he was denied the medical treatment he needed to prevent avascular necrosis of the femoral head and that he later suffered a fractured left hip on or about June 4, 2000.
On March 4, 2002, Janky's medical malpractice case was dismissed, without prejudice, on a progression order. On October 8, a hearing on Janky's motion to reinstate his case and motion to extend the certificate of readiness was held. At the hearing, Janky was represented by Thomas Petersen. Petersen argued that Janky's case was dismissed on the progression order when Janky's previous counsel, formerly of Petersen's office, failed to extend the certificate of readiness filing time, and that as a result, the statute of limitations had run. Petersen argued that extensive discovery had been done in this case and requested on the record that the court reinstate the case and extend the certificate of readiness for 4 months. Defendant Dunn opposed reinstatement and also challenged Petersen's statement that extensive discovery had been done, noting that defendant Dunn had served on Janky two sets of interrogatories which were never answered. Defendant Dunn also pointed out that defendant Alegent Health had previously served on Janky interrogatories which were answered and in which Janky indicated he did not have an expert witness. Defendant Dunn argued that unless Janky had an expert witness, the lawsuit was frivolous. Defendant Alegent Health joined in defendant Dunn's objection, noting that in the 20 months since Janky filed his lawsuit, he had never identified an expert. The court sustained Janky's motion to reinstate. The court then excused the certificate of readiness until February 8, 2003, and directed Janky to identify any experts by December 8, 2002.
On February 21, 2003, defendant Alegent Health filed a motion for summary judgment claiming that the pleadings on file and discovery performed demonstrated that there was no genuine issue of material fact for trial. On February 27, defendant Dunn filed a motion for summary judgment claiming that Janky's second amended petition and Janky's answers to interrogatories revealed that as a matter of law, Janky was unable to make a prima facie case of professional negligence as to defendant Dunn.
A hearing on the motions for summary judgment was held on March 4, 2003. In support of its motion, defendant Alegent Health offered the affidavit of registered nurse Joyce Black, Ph.D., which affidavit opined that defendant Alegent Health complied with and met the applicable recognized standard of medical care. In support of his motion, defendant Dunn offered his affidavit stating that in his opinion, he and the other Alegent Health employees met the a
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