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Regier v. Good Samaritan Hospital9/20/2002
such bylaws, rules, and regulations are not alleged. The petition alleges that Finkner is an employee and agent of Good Samaritan; however, it does not allege that he was subject to a contract which obligated him to follow the bylaws, rules, and regulations which might have benefited Adrian. The allegations against Finkner do not state what, if any, undertakings Finkner assumed.
As noted, the petition fails to allege facts setting forth a physician-patient relationship between Finkner and Adrian. Furthermore, the petition sets forth no facts establishing a duty Finkner owed to Adrian. Accordingly, the petition does not adequately plead a cause of action under Nebraska law against Finkner, and the district court correctly so ruled.
When a demurrer to a petition is sustained, a court must grant leave to amend the petition unless it is clear that no reasonable possibility exists that amendment will correct the defect. Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002). While the current allegations in the petition fail to state a cause of action against Finkner, it is possible that Regier might be able to amend the petition by alleging facts imposing a duty on the part of Finkner in favor of Adrian. Accordingly, the district court erred in denying Regier leave to replead.
CONCLUSION
The petition does not adequately plead a cause of action against Finkner. However, a reasonable possibility exists that amendment will correct the defect. Although the district court correctly sustained Finkner's demurrer to the petition, it erred when it denied leave to replead. We, therefore, reverse the district court's order.
Reversed.
Wright, J., not participating.
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