Decisions of the Nebraska Court of Appeals
PFLUEGER-JAMES v. POPE PAUL VI INSTITUTE PHYSICIANS 635
Cite as 21 Neb. App. 635
not set forth in our record. We do not know what impact, other
than temporary separation from Darwin, the incident had on
Athina. The evidence put forth by the State in this case does
not meet the clear and convincing standard necessary to prove
that it is in Athina’s best interests to terminate Darwin’s paren-
tal rights. Accordingly, we find that the juvenile court erred in
terminating Darwin’s parental rights to Athina.
CONCLUSION
For the reasons stated above, we reverse the order of the
juvenile court terminating Darwin’s parental rights to Athina
and remand the cause for further proceedings.
R eversed and remanded for
further proceedings.
Pamela P flueger-James and Michael James,
husband and wife, appellants, v. Pope Paul VI
Institute Physicians, P.C., doing business as
Pope Paul VI Institute, et al., appellees.
___ N.W.2d ___
Filed January 14, 2014. No. A-12-802.
1. Pleadings: Appeal and Error. Permission to amend a pleading is addressed to
the discretion of the trial court, and an appellate court will not disturb the trial
court’s decision absent an abuse of discretion.
2. Malpractice: Physician and Patient: Negligence: Informed Consent. An
allegation that a medical provider breached a duty of care by deviating from
the accepted standard of care in negligently performing unnecessary and
unwarranted surgery on a patient, without the proper informed consent of the
patient, is sufficient to state a claim for negligence through lack of informed
consent.
3. Informed Consent: Words and Phrases. Informed consent is defined as consent
to a procedure based on information which would ordinarily be provided to the
patient under like circumstances by health care providers.
4. Informed Consent: Proof: Proximate Cause. Neb. Rev. Stat. § 44-2820
(Reissue 2010) requires a plaintiff claiming lack of informed consent to prove
by a preponderance of the evidence that a reasonably prudent person in the
plaintiff’s position would not have undergone the treatment had he or she been
properly informed and that the lack of informed consent was the proximate cause
of the injury and damages claimed.
Decisions of the Nebraska Court of Appeals
636 21 NEBRASKA APPELLATE REPORTS
5. Pleadings: Appeal and Error. In reviewing whether a trial court erred in deny-
ing a motion to amend a pleading, an appellate court views the record as it
existed at the time the motion was filed.
6. Pleadings. Leave of court to amend a pleading shall be freely given when justice
so requires.
7. ____. A district court’s denial of leave to amend a pleading is appropriate only
in those limited circumstances in which undue delay, bad faith on the part of the
moving party, futility of the amendment, or unfair prejudice to the nonmoving
party can be demonstrated. Delay alone is not a reason in and of itself to deny
leave to amend; the delay must have resulted in unfair prejudice to the party
opposing amendment.
8. Pleadings: Proof. The burden of proof of prejudice is on the party opposing the
amendment of a pleading. Prejudice does not mean inconvenience to a party, but
instead requires that the nonmoving party show that it was unfairly disadvantaged
or deprived of the opportunity to present facts or evidence which it would have
offered had the amendments been timely.
9. Actions: Pleadings: Words and Phrases. A cause of action consists of the fact
or facts which give one a right to judicial relief against another; a theory of
recovery is not itself a cause of action. Thus, two or more claims in a complaint
arising out of the same operative facts and involving the same parties constitute
separate legal theories, of either liability or damages, and not separate causes
of action.
10. Informed Consent. A claim for lack of informed consent based upon the same
set of facts alleged in an existing complaint is a theory of recovery, not a new
cause of action.
Appeal from the District Court for Douglas County:
Leigh A nn R etelsdorf, Judge. Reversed and remanded for a
new trial.
Diana J. Vogt and Thomas D. Prickett, of Sherrets, Bruno &
Vogt, L.L.C., for appellants.
David D. Ernst and Lisa M. Meyer, of Pansing, Hogan,
Ernst & Bachman, L.L.P., for appellees.
Riedmann, Judge, and Mullen, District Judge, Retired.
P er Curiam.
INTRODUCTION
Pamela Pflueger-James and Michael James, plaintiffs, sued
Pope Paul VI Institute Physicians, P.C., doing business as
Pope Paul VI Institute; Thomas W. Hilgers, M.D.; and John
or Jane Doe, defendants, to recover damages arising from the
Decisions of the Nebraska Court of Appeals
PFLUEGER-JAMES v. POPE PAUL VI INSTITUTE PHYSICIANS 637
Cite as 21 Neb. App. 635
actions of Dr. Hilgers. After allowing plaintiffs to amend their
complaint once, the district court denied any further amend-
ments. The court granted defendants’ motion to dismiss one of
plaintiffs’ claims, and a jury found in favor of defendants on
the remaining claim. Plaintiffs appeal. We conclude that the
district court erred in denying plaintiffs’ motion to file a second
amended complaint. Accordingly, we reverse, and remand for
a new trial.
PROCEDURAL BACKGROUND
On May 16, 2007, plaintiffs filed the original complaint,
in which they designated two “causes of action.” The first
was for medical malpractice; the second was for James’ loss
of consortium.
On September 3, 2009, plaintiffs filed a first amended com-
plaint, alleging in their “first cause of action” that Dr. Hilgers
was negligent in performing surgery on Pflueger-James and
in providing care for her postsurgery. In their “second cause
of action,” plaintiffs alleged that Dr. Hilgers was negligent in
misrepresenting the procedures he would be performing. The
“third cause of action” was for James’ loss of consortium as a
result of the injuries to Pflueger-James.
In September 2010, plaintiffs’ fourth attorney of record
filed a motion to file a second amended complaint. The rea-
son given in support of the motion was the assertion that this
action was a medical malpractice claim brought pursuant to
the Nebraska Hospital-Medical Liability Act (NHMLA), but
that compliance with more than one of the requirements of the
NHMLA was not properly pled in the first amended complaint.
A more detailed explanation of the NHMLA is not necessary to
understand the disposition of this appeal. The second amended
complaint would have presented the issues of an act of profes-
sional negligence and lack of informed consent, together with
general damages, special damages, and loss of consortium.
The trial court denied the motion in October 2010, but allowed
plaintiffs to designate additional expert witnesses and conduct
written discovery. Trial was set for July 6, 2011.
Expert medical depositions were taken in December 2010
and in January, April, and September 2011. Each of those
Decisions of the Nebraska Court of Appeals
638 21 NEBRASKA APPELLATE REPORTS
expert witnesses was questioned on the issue of informed con-
sent. Trial was continued upon plaintiffs’ motion.
In December 2011, defendants filed a motion for summary
judgment or, in the alternative, motion to dismiss, moving the
court for an order dismissing the “second cause of action” for
negligent misrepresentation. On December 29, plaintiffs again
filed a motion to file a second amended complaint, stating that
this was a medical malpractice claim now brought pursuant to
the NHMLA, that the NHMLA was the exclusive remedy, that
no new causes of action would be added, and that informed
consent would be added as an additional allegation.
The court granted defendants’ motion to dismiss plaintiffs’
claim of negligent misrepresentation and denied leave to file
the second amended complaint.
Trial commenced on July 23, 2012. The jury returned a ver-
dict for defendants. Plaintiffs appeal.
ASSIGNMENTS OF ERROR
Plaintiffs assign as error, restated and simplified, that the
court erred by not allowing plaintiffs to file the second amended
complaint and in dismissing their “second cause of action.”
STANDARD OF REVIEW
[1] Permission to amend a pleading is addressed to the
discretion of the trial court, and an appellate court will not
disturb the trial court’s decision absent an abuse of discretion.
InterCall, Inc. v. Egenera, Inc., 284 Neb. 801, 824 N.W.2d
12 (2012).
ANALYSIS
[2] Plaintiffs’ primary argument on appeal is that lack of
informed consent was in fact alleged in the first amended com-
plaint. Plaintiffs cite to American Jurisprudence Pleading and
Practice Forms Annotated, which provides that the operative
allegation necessary to state a claim for negligence through
lack of informed consent need only state that the defendant
“breached [a duty] in one or more of the following ways,
any one of which was a departure from the accepted standard
of care: . . . (k) In negligently performing unnecessary and
unwarranted surgery on plaintiff, without the proper informed
Decisions of the Nebraska Court of Appeals
PFLUEGER-JAMES v. POPE PAUL VI INSTITUTE PHYSICIANS 639
Cite as 21 Neb. App. 635
consent of plaintiff[.]” 19B Am. Jur. Pl. & Pr. Forms Annot.
Physicians, Surgeons, and Other Healers § 85 at 22-23 (2007)
(emphasis supplied).
Plaintiffs contend the following portions of the first amended
complaint compose an allegation of harm resulting from lack
of informed consent:
20. Dr. Hilgers had a duty, in the course of his profes-
sion as a medical doctor, to supply accurate information to
the [sic] guide his potential patients, including Plaintiffs,
who comprised his target audience in his presentations.
Dr. Hilgers knew or should have known that the members
of his audience would justifiab[ly] rely on the materials
he presented and he failed to exercise reasonable care,
specifically, in the following:
20.1. In presenting and advocating medical procedures
to vulnerable couples, including Plaintiffs, incapable of
achieving natural reproduction, which procedures were
presented as having prior histories of increased fertility.
Defendant Hilgers knew or should have known that these
procedures were not supported by independent medical
research, medically-acceptable practices, or other sound
medical principles known to, accepted and practiced by
gynecologists and/or reproductive medicine physicians,
though he represented them as such.
Plaintiffs claim the first amended complaint adequately
alleged that Pflueger-James suffered bodily injury, that she
was not fully informed about the procedure, and that she suf-
fered damages as a result, which plaintiffs assert is all that is
required to state a claim for lack of informed consent.
[3,4] Informed consent is defined as “consent to a procedure
based on information which would ordinarily be provided to
the patient under like circumstances by health care providers.”
Neb. Rev. Stat. § 44-2816 (Reissue 2010). Neb. Rev. Stat.
§ 44-2820 (Reissue 2010) requires a plaintiff claiming lack of
informed consent to prove by a preponderance of the evidence
that a reasonably prudent person in Pflueger-James’ position
would not have undergone the treatment had he or she been
properly informed and that the lack of informed consent was
the proximate cause of the injury and damages claimed.
Decisions of the Nebraska Court of Appeals
640 21 NEBRASKA APPELLATE REPORTS
Plaintiffs’ first amended complaint asserted that Dr. Hilgers
gave presentations and solicited participation in the technol-
ogy and fertility programs advanced by him and the Pope
Paul VI Institute and that plaintiffs attended one such presen-
tation in 2005. Plaintiffs claimed that after the presentation,
Dr. Hilgers personally urged Pflueger-James to participate in
a hormone study he advocated and encouraged her to visit
Omaha for a hormone panel and later wrote to her to recom-
mend surgery. Plaintiffs alleged that these interactions with Dr.
Hilgers prompted them to consult with him about the recom-
mended procedures.
[5] Further, the first amended complaint alleged that Dr.
Hilgers had a duty to give accurate information and guidance
to potential patients present at his presentations and that he
knew or should have known that audience members would rely
on the materials presented. Plaintiffs averred that Dr. Hilgers
failed to exercise reasonable care by presenting and advocating
to plaintiffs medical procedures which Dr. Hilgers purported
had resulted in increased fertility. According to paragraph 20.1
of the first amended complaint, Dr. Hilgers knew or should
have known that these procedures were not supported by
independent medical research, medically acceptable practices,
or other sound medical principles known to, accepted by, and
practiced by gynecologists and/or reproductive medicine phy-
sicians, although he represented them as such. Plaintiffs con-
cluded that defendants’ negligent misrepresentations directly
and proximately caused Pflueger-James to undergo treatment
for infections. At the hearing on their motion to amend the first
amended complaint in 2010, plaintiffs stated that their case
was “primarily one of unwarranted surgery, one not supported
in scientific fact. The First Amended Complaint actually says
unwarranted surgery. If we’re stuck with that, we can make it
work and we’ll ignore the fraud charge.” Counsel claimed that
the amendment “doesn’t change things, really.” We are mindful
that counsel’s interpretation of the allegations contained in the
first amended complaint changed, as evidenced by counsel’s
agreement in 2011 that the motion to dismiss the claims of neg-
ligent misrepresentation should be dismissed, but in review-
ing whether the district court erred in denying the motion to
Decisions of the Nebraska Court of Appeals
PFLUEGER-JAMES v. POPE PAUL VI INSTITUTE PHYSICIANS 641
Cite as 21 Neb. App. 635
amend in 2010, we view the record as of that date. Analyzing
plaintiffs’ complaint as the district court should have in 2010,
we find plaintiffs’ argument that lack of informed consent was
pled persuasive.
Plaintiffs’ first amended complaint alleged that Dr. Hilgers
failed to inform Pflueger-James the treatment she received was
not generally accepted in the field of obstetrics and gynecol-
ogy and that Dr. Hilgers’ medical claims in support of the
treatment were not subject to proper peer review. Plaintiffs
averred that as a result, Pflueger-James underwent unneces-
sary treatment.
[6-8] Plaintiffs assert that allowing them to file the second
amended complaint in 2010 would not have caused undue
delay and prejudice and that, therefore, the district court erred
in denying their motion to amend. We agree. InterCall, Inc. v.
Egenera, Inc., 284 Neb. 801, 824 N.W.2d 12 (2012), is instruc-
tive in this case. The court in InterCall, Inc. held:
When a party seeks leave of court to amend a pleading,
our rules require that “leave shall be freely given when
justice so requires.” A district court’s denial of leave to
amend pleadings is appropriate only in those limited cir-
cumstances in which undue delay, bad faith on the part
of the moving party, futility of the amendment, or unfair
prejudice to the nonmoving party can be demonstrated. .
. . “[D]elay alone is not a reason in and of itself to deny
leave to amend; the delay must have resulted in unfair
prejudice to the party opposing amendment.” The burden
of proof of prejudice is on the party opposing the amend-
ment. “Prejudice does not mean inconvenience to a party,”
but instead requires that the nonmoving party “‘show that
it was unfairly disadvantaged or deprived of the oppor-
tunity to present facts or evidence which it would have
offered had the . . . amendments been timely.’”
284 Neb. at 811, 824 N.W.2d at 21.
[9] In evaluating whether granting a motion to amend would
have occasioned prejudice, the court in InterCall, Inc. distin-
guished between a cause of action and a theory of recovery:
“A cause of action consists of the fact or facts which
give one a right to judicial relief against another; a theory
Decisions of the Nebraska Court of Appeals
642 21 NEBRASKA APPELLATE REPORTS
of recovery is not itself a cause of action. Thus, two or
more claims in a complaint arising out of the same opera-
tive facts and involving the same parties constitute sepa-
rate legal theories, of either liability or damages, and not
separate causes of action.”
284 Neb. at 812, 824 N.W.2d at 22, quoting Poppert v. Dicke,
275 Neb. 562, 747 N.W.2d 629 (2008). The court in InterCall,
Inc. concluded that the district court did not abuse its discretion
in allowing the defendant to amend its counterclaim to include
an additional theory of recovery on the eve of trial.
It is clear from the district court’s comments at the 2010
hearing that it considered informed consent a new cause of
action, even though plaintiffs’ counsel argued that it was not.
On appeal, plaintiffs argue that defendants were not prejudiced,
because, like the defendant in InterCall, Inc., trial counsel
was attempting merely to plead lack of informed consent as a
theory of recovery arising out of the same general malpractice
cause of action. No Nebraska cases explicitly label lack of
informed consent as either a theory of recovery or a cause of
action, but in Cerny v. Longley, 266 Neb. 26, 661 N.W.2d 696
(2003), the Nebraska Supreme Court noted, without comment,
the trial court’s designation of informed consent as a theory
of recovery.
[10] Other jurisdictions have treated informed consent as
a theory of recovery. See, Rainer v. Community Memorial
Hosp., 18 Cal. App. 3d 240, 254, 95 Cal. Rptr. 901, 909
(1971) (“[w]here additional investigation and discovery is not
required to meet the new issue, it would appear that it would
constitute an abuse of discretion not to permit the amendment
of a complaint [to add a claim of lack of informed consent]
even at the outset of a trial, where the amendment merely
adds a new theory of recovery on the same set of facts con-
stituting the cause of action”); Miller-McGee v. Washington
Hosp. Center, 920 A.2d 430 (D.C. 2007) (because patient’s
amended complaint at least arguably encompassed claim of
lack of informed consent, she did not unduly delay by never
seeking leave to amend her complaint to add more definite
statement of that claim; there was no evidence of bad faith or
dilatory motive or repeated failure to cure deficiencies; lack of
Decisions of the Nebraska Court of Appeals
PFLUEGER-JAMES v. POPE PAUL VI INSTITUTE PHYSICIANS 643
Cite as 21 Neb. App. 635
informed consent rested on same set of facts alleged in exist-
ing amended complaint; and discovery put doctor and hospital
on notice of informed consent issue); Rodgers v. Higgins,
871 P.2d 398 (Okla. 1993) (claims against doctor for fraud
and misrepresentation, breach of warranty, and execution of
blood transfusion without informed consent all arose out of
one pathogenic blood transfusion, and thus constituted nothing
more than three distinct and alternative theories of recovery,
rather than separate causes of action).
As we have already observed, plaintiffs pled operative facts
supporting informed consent in their first amended complaint.
Based on the foregoing authority, under the facts of this case,
informed consent was a theory of recovery.
Under the standard set forth in InterCall, Inc. v. Egenera,
Inc., 284 Neb. 801, 824 N.W.2d 12 (2012), we conclude that
defendants would not have been prejudiced by granting plain-
tiffs’ motion to amend the first amended complaint in 2010. In
this case, informed consent was a theory of recovery, rather
than a new cause of action, and the factual basis of informed
consent was already pled in the first amended complaint.
Moreover, there is no evidence that plaintiffs were dilatory
or exhibited bad faith in curing any deficiencies in the plead-
ings. Rather, the amendment sought was the result of plaintiffs’
retaining new counsel who entered their appearance 2 weeks
before the motion was filed. Although the district court denied
the motion for leave to amend on the basis of untimeliness, it
granted an enlargement of time for purposes of allowing plain-
tiffs to add additional experts and issue written discovery. The
court recognized that by allowing this additional discovery,
defendants’ strategy in defending the case may change, but
recognized that such a change does not necessarily equate to
prejudice. The district court noted:
I understand this is a tough call for me in the sense that
I understand your argument that you possessed a certain
strategy all along. However, when I look at that, I’m
looking for expenses you’ve expended. If you’re going
to change your strategy because I have a different expert,
I thought about it and I would give you the appropriate
amount of time.
Decisions of the Nebraska Court of Appeals
644 21 NEBRASKA APPELLATE REPORTS
As stated above, delay, alone, is an insufficient reason to
deny a motion for leave to amend a pleading. Since defendants
failed to show they would be unduly prejudiced if the amend-
ment were granted, the trial court abused its discretion in disal-
lowing it.
Having found that the district court should have allowed the
amendment in 2010, we need not address plaintiffs’ remaining
assignments of error.
CONCLUSION
We find that the district court abused its discretion in deny-
ing plaintiffs’ motion to amend the first amended complaint in
2010. Accordingly, we reverse, and remand for a new trial.
R eversed and remanded for a new trial.
Irwin, Judge, participating on briefs.
Philip Shear, appellant, v. City of Wayne Civil Service
Commission and the City of Wayne, Nebraska,
a municipal corporation, appellees.
___ N.W.2d ___
Filed January 14, 2014. No. A-12-830.
1. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Administrative Law: Appeal and Error. In reviewing an administrative agency
decision on a petition in error, both the district court and the appellate court
review the decision to determine whether the agency acted within its jurisdiction
and whether sufficient, relevant evidence supports the decision of the agency.
4. ____: ____. The reviewing court in an error proceeding is restricted to the record
before the administrative agency and does not reweigh evidence or make inde-
pendent findings of fact.
5. Administrative Law: Evidence. The evidence is sufficient, as a matter of law,
if an administrative tribunal could reasonably find the facts as it did from the
testimony and exhibits contained in the record before it.
6. Public Officers and Employees: Termination of Employment: Due Process.
Under Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct.