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The Nebraska Supreme Court held in its opinion filed on April 8, 2022 in a Nebraska medical malpractice case where the plaintiff alleged that he developed a serious infection in his knee following an injection into the joint, “The evidence presented by Freedom Healthcare was that it is extremely rare for a joint injection to become infected, and Dr. Swanson [the plaintiff’s treating expert] opined that the only time an infection such as Evans’ could occur is if the sterile preparation was not performed correctly. There is conflicting evidence regarding whether one or two syringes were used. There is evidence that, in the absence of negligence, such infection does not occur. There is evidence that the instrumentality which produced the infection was in the control of Freedom Healthcare. And there is no particular explanation by Freedom Healthcare as to how the infection occurred. The order below appears to judge the weight of such evidence and the credibility of the parties’ experts. However, as demonstrated by the evidence to which we refer above, there exists an inference of negligence under the theory of res ipsa loquitur, which presents a question of material fact for the fact finder, and summary judgment was improperly granted.”

The Underlying Facts

Freedom Healthcare in Lincoln, Nebraska, is a clinic that offers joint injection therapies to treat patients suffering from knee and joint pain. Freedom Healthcare claims that these joint injections help patients maintain their joints so they may postpone or avoid more invasive procedures, such as knee replacement.

Plaintiff Warren Evans had a long history of severe osteoarthritis and knee pain, and he received injections of hyaluronic acid into his knee at Freedom Healthcare in 2017. On February 5, 2018, Evans returned to Freedom Healthcare for another set of injections. He received hemocyte tissue autograft therapy, or “PRP,” a type of viscosupplementation using platelet-rich plasma. The purpose of the injection is to treat pain and inflammation. Evans recalled that his left knee was injected first, then his right, and that the same needle was used for both knees.

Evans sued Freedom Healthcare, LLC, in the district court for Lancaster County for medical malpractice. The complaint alleged that Freedom Healthcare was negligent when it performed hemocyte tissue autograft therapy on Evans’ knees, causing a polymicrobic infection of Evans’ right knee which ultimately required extensive treatment and hospitalization. Evans relied on the doctrine of res ipsa loquitur to prove his case.

Res Ipsa Loquitur

There are three elements that must be met for res ipsa loquitur to apply: (1) The occurrence must be one which would not, in the ordinary course of things, happen in the absence of negligence; (2) the instrumentality which produces the occurrence must be under the exclusive control and management of the alleged wrongdoer; and (3) there must be an absence of explanation by the alleged wrongdoer. When applicable, the essence of the doctrine is that an inference of negligence arises without further proof and that the facts speak for themselves. Res ipsa loquitur is a procedural tool that, if applicable, allows an inference of a defendant’s negligence to be submitted to the fact finder, where it may be accepted or rejected.”

The Nebraska Supreme Court stated: “To the extent our cases could be understood to prohibit pleading both specific acts of negligence and res ipsa loquitur after the adoption of notice pleading, they are disapproved. … A plaintiff is able to recover on a valid claim regardless of a failure to perceive the true basis of the claim at the pleading stage … In a notice pleading jurisdiction like Nebraska, a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Id. The party is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted. Id. Accordingly, the district court erred as a matter of law when it rejected Evans’ invocation of res ipsa loquitur at this stage.”

Evans v. Freedom Healthcare, 311 Neb. 336.

If you or a loved one suffered a serious injury due to medical negligence that occurred in Nebraska or in another U.S. state, you should promptly find a Nebraska medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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