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Breeden v. Anesthesia West2/28/2003
] Additionally, we find no merit in the Breedens' contention that § 27-803(17) creates an exception to the expert testimony requirement in medical malpractice cases. Pursuant to § 27-803(17), learned treatises which have been established as a reliable authority are admissible into evidence only "to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." Thus, duly admitted learned treatises do not independently establish the standard of care in a medical malpractice action. They are merely evidence of the standard of care to the extent relied upon by the expert witness in direct examination, or called to the attention of the expert witness upon cross-examination. § 27-803(17); Tart, supra. See, also, Morlino v. Medical Center, 152 N.J. 563, 706 A.2d 721 (1998). But see Wilson v. Knight, 26 Kan. App. 2d 226, 229, 982 P.2d 400, 403 (1999) (noting that Kansas' learned treatise rule is "unique" since it permits "the admission into evidence of a medical treatise as independent substantive evidence" of the standard of care). The Breedens' assigned error is without merit.
3. Remaining Assignments of Error
Since our conclusion requires that we reverse and remand this matter for a new trial, we find it unnecessary to further address the Breedens' arguments with respect to instruction No. 9 or their remaining assignments of error.
VII. CROSS-APPEAL
Anesthesia West assigns on cross-appeal that the district court erred in ruling as a matter of law that the inconsistent statements made by Clark constituted changed testimony for the exigencies of trial pursuant to Momsen v. Nebraska Methodist Hospital, 210 Neb. 45, 313 N.W.2d 208 (1981). Anesthesia West further assigns error in incorporating such pretrial ruling into jury instruction No. 5. Whether the jury instructions given by a trial court are correct is a question of law. Malone v. American Bus. Info., 264 Neb. 127, 647 N.W.2d 569 (2002); Springer v. Bohling, 263 Neb. 802, 643 N.W.2d 386 (2002). When reviewing questions of law, an appellate court has an obligation to resolve the question independently of the conclusion reached by the trial court. Nebraska Nutrients v. Shepherd, 261 Neb. 723, 626 N.W.2d 472 (2001).
Clark testified in her initial deposition that she entered the note describing Michael Breeden's "tingling" symptom into Breeden's electronic file at 9:50 a.m. on August 16, 1994, prior to Breeden's surgery. However, in her second deposition, Clark testified she might have entered the note later in the day after Breeden's surgery:
Q: [by Anesthesia West's counsel] [The notation of time on the nursing note is] not necessarily the moment that you're at the computer putting the note in; true?
A: Correct.
Q: And the computer doesn't print out a time which shows the moment that you were at the computer keyboard making the time entry; true?
A: Not to my knowledge.
Q: And you chart symptoms when you have the opportunity to do so; correct?
A: Yes.
Q: And sometimes you might chart it later in the day when you have the time, but you'll refer back to the time that the observation was made in the note; true?
A: There are times.
Q: That's — What you're supposed to do is list the time that something happened, as best you can estimate it or list it; true?
A: Yes.
Q: And that may be different than the time that you're actually at the keyboard; true?
A: There are times.
Prior to trial, the district court ruled, over Anesthesia West's objection, that
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