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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
Warren Evans, appellant, v. Freedom
Healthcare, LLC, appellee.
___ N.W.2d ___
Filed April 8, 2022. No. S-21-494.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Malpractice: Physicians and Surgeons: Proof: Proximate Cause.
To establish a prima facie case of medical malpractice, a plaintiff must
show (1) the applicable standard of care, (2) that the defendant(s) devi-
ated from that standard of care, and (3) that this deviation was the proxi-
mate cause of the plaintiff’s harm.
4. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. In
medical malpractice cases, expert testimony by a medical professional is
normally required to establish the standard of care and causation under
the circumstances.
5. Malpractice: Physicians and Surgeons: Summary Judgment: Expert
Witnesses: Proof. Once the defendant medical provider in a malpractice
case presents evidence that he or she has met the standard of care, the
plaintiff must normally present expert testimony to show that a material
issue of fact exists preventing summary judgment.
6. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. In
medical malpractice cases brought under the res ipsa loquitur doctrine,
negligence may be inferred in three situations without affirmative proof:
(1) when the act causing the injury is so palpably negligent that it may
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
be inferred as a matter of law, i.e., leaving foreign objects, sponges, scis-
sors, et cetera, in the body, or amputation of a wrong member; (2) when
the general experience and observation of mankind teaches that the
result would not be expected without negligence; and (3) when proof by
experts in an esoteric field creates an inference that negligence caused
the injuries.
7. Negligence: Proof. 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.
8. Summary Judgment: Negligence: Proof. At the summary judgment
stage of litigation, when deciding whether res ipsa loquitur applies, a
court must determine whether evidence exists from which reasonable
persons can say that it is more likely than not that the three elements of
res ipsa loquitur have been met. If such evidence is presented, then there
exists an inference of negligence which presents a question of material
fact, and summary judgment is improper.
9. ____: ____: ____. In a summary judgment proceeding, the court should
not weigh the evidence to determine whether res ipsa loquitur applies.
Instead, the court must determine whether there is sufficient evidence
from which reasonable persons could find that it is more likely than not
that the three elements of res ipsa loquitur have been proved and that
it is therefore more likely than not that there was negligence associated
with the event.
Appeal from the District Court for Lancaster County:
Jodi L. Nelson, Judge. Reversed and remanded for further
proceedings.
Elizabeth A. Govaerts, of Powers Law, for appellant.
Erin C. Duggan Pemberton and Andrew D. Wurdeman, of
Wolfe, Snowden, Hurd, Ahl, Sitzmann, Tannehill & Hahn,
L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
Miller-Lerman, J.
I. NATURE OF CASE
Warren Evans sued Freedom Healthcare, LLC, in the district
court for Lancaster County for medical malpractice. The com-
plaint 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.
Because the district court found that Evans had failed to intro-
duce expert testimony of medical professional negligence, it
granted summary judgment in favor of Freedom Healthcare.
Evans appeals. Because the record presents genuine issues of
material fact which preclude summary judgment, we reverse
the order of the district court and remand the cause for fur-
ther proceedings.
II. STATEMENT OF 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 post-
pone or avoid more invasive procedures, such as knee replace-
ment. 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 injec-
tions. 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.
Tana Kenley, a physician assistant, performed the procedure.
She drew blood from Evans, centrifuged the blood, prepared
syringes, prepared Evans, and performed the injections. Evans
recalled that his left knee was injected first, then his right,
and that the same needle was used for both knees. Kenley
testified that prior to an injection, she would sterilize the skin
with chlorhexidine as a matter of course, and that she believed
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
she followed this procedure when she performed the injections
on Evans. Kenley testified in her deposition that she used sepa-
rate syringes for each knee.
During the day following the injections, Evans began expe-
riencing right knee pain, and it continued to worsen. He
returned to Freedom Healthcare on February 9, 2018, where he
was referred to an emergency room and admitted with severe
septic infection in his right knee. The infection was polymicro-
bial, meaning that more than one infectious agent was present.
Evans underwent prolonged hospitalization and multiple sur-
geries for his affected knee.
Evans sued Freedom Healthcare for negligence. His com-
plaint alleged that Freedom Healthcare acted negligently by
(1) failing to properly supervise its employees, (2) failing to
properly train its employees, (3) failing to take appropriate
steps to ensure that its equipment was sterile, (4) failing to use
proper sterile techniques, (5) failing to perform the procedure
appropriately, (6) failing to monitor Evans’ condition, and (7)
failing to provide immediate followup care. It also alleged
that in the normal course of events, an infection of this type
would not happen in the absence of negligence, and it claimed
that Freedom Healthcare was liable under a theory of res
ipsa loquitur.
Freedom Healthcare moved for summary judgment. Evidence
was received by the district court. Freedom Healthcare’s expert,
Dr. David Brown, testified:
[Y]ou can’t completely sterilize the skin. The risk of
infection from a joint injection has been estimated to be
anywhere between one in 3,000 to one in 50,000; it’s an
uncommon problem.
I, I don’t recall the last time I had an infection from a
joint. It’s just despite that, a study out of the U.K. [found
that] 12 percent of the physicians [surveyed] had seen an
infection from a joint injection.
So it’s not — it’s rare, but it’s not impossible. . . .
[I]t just all comes down to there’s always some risk of
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
infection anytime you intrude through the . . . skin into,
in particular, into a joint.
An infectious disease specialist, who collaborated in
Evans’ treatment while he was hospitalized, stated in his con-
sultation note that the polymicrobial infection was “undoubt-
edly sourced from the overlying skin.”
Evans’ expert, Dr. Scott Swanson, is an orthopedic surgeon
licensed in Nebraska. He treated Evans while he was hospital-
ized. Dr. Swanson’s opinions were offered through deposition
testimony and an affidavit that included his March 30, 2018,
report. Dr. Swanson opined that the type of infection Evans
developed is not considered to be common or a routine risk of
the procedure performed. He testified that he had never seen
or heard of a polymicrobial infection following an injection.
He stated that in his professional opinion, based on his obser-
vations as an orthopedic student and practitioner of 20 years,
“this type of infection could simply not have occurred absent
a significant breach in the sterile technique at some point in
the process” of performing the injections. He opined that such
a breach of the sterile technique is a violation of the standard
of care for medical providers in the Lincoln area. In his depo-
sition, Dr. Swanson testified that because he had not been
informed regarding Freedom Healthcare’s sterility protocol, if
any, he was unable to form criticisms as to the sterility of the
equipment used on Evans, whether Kenley followed proper
sterile technique, and whether Kenley followed an appropri-
ate procedure.
In an order granting summary judgment in favor of Freedom
Healthcare, the district court concluded that res ipsa loquitur
failed as a matter of law and found that Dr. Swanson’s deposi-
tion testimony was internally inconsistent. The district court
further concluded that Evans had failed to put forward com-
petent expert testimony that Freedom Healthcare breached the
applicable standard of care.
With respect to res ipsa loquitur, the district court stated that
where the overlying skin is pierced and a needle is advanced
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
into the joint, the development of infection following an injec-
tion is not “‘so palpably negligent’” that negligence should be
inferred as a matter of law.
The district court granted summary judgment in favor of
Freedom Healthcare. Evans appeals.
III. ASSIGNMENT OF ERROR
On appeal, Evans assigns that the trial court erred when it
granted summary judgment in favor of Freedom Healthcare on
Evans’ theories of negligence and res ipsa loquitur.
IV. STANDARDS OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter of
law. Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538,
955 N.W.2d 707 (2021). In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted and gives
that party the benefit of all reasonable inferences deducible
from the evidence. Lombardi v. Sedlacek, 299 Neb. 400, 908
N.W.2d 630 (2018).
V. ANALYSIS
As to the law, the district court concluded that Evans could
not advance the res ipsa loquitur doctrine because he had
alleged negligence in his original complaint. This was error.
As to the facts, the district court granted Freedom Health
care’s motion for summary judgment on the bases that Evans’
expert witness, Dr. Swanson, had given inconsistent testimony
and that his expert opinion regarding the standard of care was
insufficient as a matter of law. Giving Evans the reasonable
inferences deducible from the evidence, to which he is entitled
in summary judgment proceedings, our review of the record
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
shows that the district court erred in both respects. As outlined
below, Dr. Swanson’s testimony was not inconsistent and his
opinion was sufficient, thus creating a genuine issue of mate-
rial fact precluding summary judgment.
The grant of summary judgment requires reversal.
1. Pleadings
As an initial matter, we note that in its order on summary
judgment, the district court concluded that Evans could not
advance the doctrine of res ipsa loquitur “as a matter of law”
because he had also alleged the theory of negligence in his
complaint. As we explain below, this misapplies the evidentiary
rule for res ipsa loquitur at this stage of the proceedings.
Res ipsa loquitur is a procedural tool that, if applicable,
allows an inference of a defendant’s negligence to be submit-
ted to the fact finder, where it may be accepted or rejected.
Anderson v. Union Pacific RR. Co., 295 Neb. 785, 890 N.W.2d
791 (2017). We have explained that res ipsa loquitur is “‘not
a rule of pleading, not a substantive rule of law, but a rule of
evidence.’” Id. at 792, 890 N.W.2d at 796 (quoting Ramsouer
v. Midland Valley R. Co., 135 F.2d 101 (8th Cir. 1943)). A
plaintiff alleging and offering proof of specific theories of
negligence would necessarily preclude the fact finder from
considering res ipsa loquitur, but the pleading stage does not
warrant such particularity. See Anderson v. Union Pacific RR.
Co., supra.
The district court relied on Anderson v. Union Pacific
RR. Co. in its analysis. But the issue in Anderson v. Union
Pacific RR. Co. was whether the trial court erred when its jury
instructions submitted both negligence and res ipsa loquitur.
Given the evidence of a specific act of negligence, we con-
cluded submitting both was error. See id. The district court
in this case erroneously applied the jury instruction lesson
of Anderson v. Union Pacific RR. Co. to this summary judg-
ment proceeding.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
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.
See, e.g., Bargmann v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d
478 (1998); Finley v. Brickman, 186 Neb. 747, 186 N.W.2d 111
(1971). A plaintiff is able to recover on a valid claim regard-
less of a failure to perceive the true basis of the claim at the
pleading stage. See Tryon v. City of North Platte, 295 Neb.
706, 890 N.W.2d 784 (2017). 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.
Record
The district court found that Dr. Swanson’s testimony was
inconsistent, from which it erroneously reasoned Dr. Swanson
believed Freedom Healthcare was free from fault, and that Dr.
Swanson had expressed either no opinions or an inadequate
opinion. Contrary to the district court’s characterization of the
evidence, Dr. Swanson’s testimony was candid, but not incon-
sistent, and he expressed adequate opinions.
The following exchanges are illustrative.
Q. Do you have any information about the sterility of
equipment used at Freedom Healthcare?
A. No.
Q. So do you have any criticisms about whether or
not the equipment that was used on . . . Evans was or
wasn’t sterile?
A. No.
....
Q. Are you familiar with the joint injection procedure
at Freedom Healthcare?
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
A. No.
Q: So it would be fair to say you don’t have a criticism
of the procedure as it is because you don’t know —
A: Correct.
Dr. Swanson testified in his deposition that if a sterile
preparation was performed correctly before the injection, there
would not be bacteria on the skin such that it could cause an
infection like that which Evans developed. He explained:
My main criticism with this all along, which I have
openly shared with [Evans] and his wife, is that it was
my opinion that the infection could not have developed
if it were not for a significant breach in sterile technique
somewhere along the process. That has always been my
main criticism of this case.
With respect to his opinion, Dr. Swanson testified:
The foundation for my opinion is based on nearly 20
years of experience as an orthopaedic student and prac-
titioner and someone who specializes, really, in the diag-
nosis and treatment of infections. Because of the nature
of my practice in nearly — the foundation in which,
based on nearly 20 years of extensive experience, I have
never seen or heard of an infection after an injection. It
is not considered to be a common or routine risk of the
procedure. And in my opinion, it can only develop after
a significant breach in sterile technique somewhere in
the process.
Dr. Swanson also indicated that the only way that the infection
could have gotten into the joint is through an inoculation dur-
ing the treatment with bacteria that do not normally exist in a
closed joint.
In addition to the foregoing, Dr. Swanson’s March 30, 2018,
report stated:
As a result of the hemocyte tissue autograft injection on
February 15, 2018, . . . Evans contracted a polymicro-
bial infection in his knee. That is to say, there was more
than one (1) bacteria cultured from his knee infection.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
In my sixteen years of practicing orthpaedic medicine, I
have never seen or heardof [sic] a polymicrobial septic
joint after an injection. An infectious disease special-
ist . . . in his consultation note opined that this was
“undoubtedly source[d] from the overlying skin.” In my
opinion, this could only occur from a significant break in
sterile technique.
Dr. Swanson’s testimony and opinions are not inconsistent;
instead, he expressed an absence of specific criticism due to
lack of knowledge. Dr. Swanson opined this is not the type
of infection that ordinarily happens in a closed joint in the
absence of negligence. In several places, he opined that it was
more likely than not a breach of sterile technique occurred and
that such breach violated the standard of care.
3. Application of Law to Facts
Evans argues that summary judgment was improper because
there is a genuine issue of material fact as to whether Free
dom Healthcare breached the standard of care for administer-
ing the knee injection. We examine Evans’ theories of recov-
ery below and apply the facts in the record recited above to
each theory.
(a) Negligence
[3-5] To establish a prima facie case of medical malpractice,
a plaintiff must show (1) the applicable standard of care, (2)
that the defendant(s) deviated from that standard of care, and
(3) that this deviation was the proximate cause of the plain-
tiff’s harm. Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d
59 (2018). In medical malpractice cases, expert testimony by a
medical professional is normally required to establish the stan-
dard of care and causation under the circumstances. Lombardo
v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018). Therefore,
once the defendant medical provider in a malpractice case pre
sents evidence that he or she has met the standard of care, the
plaintiff must normally present expert testimony to show that
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
a material issue of fact exists preventing summary judgment.
See id.
Freedom Healthcare’s expert, Dr. Brown, testified that
Freedom Healthcare’s health care workers satisfied the appli-
cable standard of care. The district court found that Evans
did not thereafter satisfy his burden to put forward expert tes-
timony that Freedom Healthcare breached the standard of care.
Evidently distracted by its view that Dr. Swanson’s testimony
contained inconsistencies, the district court determined that
there was a “complete failure of proof” by Evans regarding
the applicable standard of care. To the contrary, Dr. Swanson
opined that there is always the possibility of infection caused
by a breach in the preinjection sterile procedure and opined that
Evans’ infection could not have developed if it were not for a
significant breach in sterile technique somewhere along the
process. Freedom Healthcare did not challenge Dr. Swanson’s
expert credentials or file a motion to prevent Dr. Swanson
from testifying about his opinion in this area of medicine. See,
e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman
v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001). Dr.
Swanson was qualified and provided an opinion on the appro-
priate standard of care for a joint injection, the weight of which
opinion should be determined by the finder of fact. The district
court erred when it disregarded Dr. Swanson’s testimony and
granted summary judgment on negligence.
(b) Res Ipsa Loquitur
Turning to Evans’ theory of res ipsa loquitur, the district
court found that the development of an infection in a joint fol-
lowing an injection is not “‘so palpably negligent’” that neg-
ligence should be inferred as a matter of law. From this, the
district court concluded there was no genuine issue of material
fact regarding Freedom Healthcare’s alleged negligence. At the
summary judgment stage and on this record, we disagree.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
Dr. Brown testified that the risk of infection from a joint
injection may be “anywhere between one in 3,000 to one in
50,000,” whereas Dr. Swanson testified that he had not encoun-
tered or heard of an infection such as Evans’ in his career,
although infection was theoretically possible where the skin is
breached during an injection. The district court reasoned that,
however rare, since an infection could occur following this
type of procedure, Evans had failed to prove it was a situation
to apply res ipsa loquitur. This is a misapplication of res ipsa
loquitur at the summary judgment stage.
[6] In medical malpractice cases brought under the res ipsa
loquitur doctrine, negligence may be inferred in three situations
without affirmative proof: (1) when the act causing the injury
is so palpably negligent that it may be inferred as a matter of
law, i.e., leaving foreign objects, sponges, scissors, et cetera,
in the body, or amputation of a wrong member; (2) when the
general experience and observation of mankind teaches that the
result would not be expected without negligence; and (3) when
proof by experts in an esoteric field creates an inference that
negligence caused the injuries. Keys v. Guthmann, 267 Neb.
649, 676 N.W.2d 354 (2004). Evans asserts that the circum-
stances of this case fit into the first situation.
[7] 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 occur-
rence 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. See Roberts v. Weber &
Sons, Co., 248 Neb. 243, 533 N.W.2d 664 (1995). See, also,
Long v. Hacker, 246 Neb. 547, 520 N.W.2d 195 (1994). When
applicable, the essence of the doctrine is that an inference
of negligence arises without further proof and that the facts
speak for themselves. Long v. Hacker, supra. 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,
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311 Nebraska Reports
EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
where it may be accepted or rejected. Anderson v. Union
Pacific RR. Co., 295 Neb. 785, 890 N.W.2d 791 (2017).
[8,9] At the summary judgment stage of litigation, when
deciding whether res ipsa loquitur applies, a court must deter-
mine whether evidence exists from which reasonable persons
can say that it is more likely than not that the three elements of
res ipsa loquitur have been met. See McLaughlin Freight Lines
v. Gentrup, 281 Neb. 725, 798 N.W.2d 386 (2011). If such evi-
dence is presented, then there exists an inference of negligence
which presents a question of material fact, and summary judg-
ment is improper. Id. The court should not weigh the evidence
to determine whether res ipsa loquitur applies. Id. Instead,
the court must determine whether there is sufficient evidence
from which reasonable persons could find that it is more likely
than not that the three elements of res ipsa loquitur have been
proved and that it is therefore more likely than not that there
was negligence associated with the event. Id.
On appeal, we review the evidence in the light most favor-
able to the party against whom summary judgment was granted,
giving that party the benefit of all reasonable inferences. See
Rodriguez v. Lasting Hope Recovery Ctr., 308 Neb. 538, 955
N.W.2d 707 (2021). In so doing, we review the evidence as
it pertains to the three elements recited above. The evidence
presented by Freedom Healthcare was that it is extremely
rare for a joint injection to become infected, and Dr. Swanson
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
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EVANS v. FREEDOM HEALTHCARE
Cite as 311 Neb. 336
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. See
McLaughlin Freight Line v. Gentrup, supra.
VI. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause for further proceedings
consistent with this opinion.
Reversed and remanded for
further proceedings.