Expert Testimony as the Mandatory Benchmark for the Standard of Care:
Commentary on J.R.M.B. v. Alegent Creighton Health, 319 Neb. 287 (Neb. Sup. Ct. 2025)

1. Introduction

In J.R.M.B. v. Alegent Creighton Health the Nebraska Supreme Court confronted a classic medical-malpractice fact pattern involving alleged obstetric negligence, shoulder dystocia, and a permanent brachial-plexus injury. While the factual record was dense with conflicting expert opinions on Pitocin administration, uterine tachysystole, and delivery maneuvers, the appeal turned on a single line in a jury instruction: a typographical slip that told jurors they “shall not” determine the standard of care from expert testimony. The Court held that this misstatement constituted plain error on a “vital issue,” mandating reversal and a new trial—even though no objection had been raised below.

This decision crystallises a new procedural principle for Nebraska malpractice litigation: when the standard of care must be established through expert evidence, any instruction that withdraws or neutralises the jury’s ability to rely on that expertise will presumptively constitute plain error affecting a substantial right, and warrants reversal sua sponte.

2. Summary of the Judgment

• The minor plaintiff (through his mother) alleged that excessive Pitocin and improper traction during delivery caused a brachial-plexus injury.
• At trial, Instruction 10 accurately recited the statutory definition of medical malpractice but erroneously added that the jury “shall not determine the standard of care from the testimony of the expert witnesses.” The court orally corrected the error when reading the charge, yet the written instruction went to the jury room without correction.
• No objection was made at trial. On appeal, the plaintiff argued the instruction was “improper, erroneous and confusing.”
• The Supreme Court (Freudenberg, J.) held that the written misstatement constituted plain error: a blemish “plainly evident from the record,” prejudicing a substantial right, and undermining the integrity of the judicial process.
• The judgment for the defendants was reversed and the cause remanded for a new trial; other alleged errors were left unaddressed.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

The Court anchored its ruling in a line of Nebraska cases recognising plain error in jury instructions when (a) the error is obvious on the record, and (b) it affects a central right or doctrine.

1. State v. Edwards (2013): Typo shifted burden of proof in entrapment-by-estoppel instruction—plain error because it implicated presumption of innocence.
2. State v. Abram (2012): Written instruction told jurors to treat defendant’s silence as admission; plain error despite oral correction.
3. City of Wahoo v. NIFCO Mechanical Systems (2020): Civil negligence case where instruction misstated comparative-fault standard; reversal under plain-error doctrine.
4. Other supportive authorities: Russell v. Stricker (failure to instruct on mandated allocation of negligence); non-Nebraska civil cases like Buccafusco v. PSE&G, emphasising the need for clarity on standard-of-care language.

These cases share a thematic thread: when the jury is misinformed on a rule that goes to the core of liability, appellate courts must intervene even absent contemporaneous objection.

3.2 Legal Reasoning Adopted by the Court

• Vital-Issue Doctrine: Establishing the applicable standard of care is indispensable in a malpractice claim; therefore, any instruction that obscures the jury’s method for identifying that standard taints the verdict.
• Expert-Testimony Necessity: Because medical malpractice involves specialised knowledge inaccessible to lay jurors, Nebraska law requires expert testimony to establish the standard of care (see § 44-2810). The erroneous instruction contradicted that necessity.
• Plain-Error Test Applied:
  1. Error “plainly evident” in the record (the written word not).
  2. Error prejudicially affected a substantial right (the right to have liability decided under correct legal standards).
  3. Leaving it uncorrected would cause miscarriage of justice and erode judicial integrity.
• Harmless-Error Doctrine Rejected: Because the instruction concerned a foundational liability element, and because juror confusion was shown by their mid-deliberation question, the Court held the error could not be deemed harmless.
• Scope of Holding: The Court expressly limited the reach of its ruling, cautioning that not every flaw in a care-standard instruction will warrant reversal; context and prejudice remain critical.

3.3 Potential Impact on Future Litigation

1. Heightened Scrutiny of Written Instructions: Trial courts must ensure written and oral instructions match, particularly on professional negligence elements. Clerk-of-court and counsel will likely adopt stricter proofreading protocols.
2. Expansion of Plain-Error Review in Civil Cases: Although Nebraska historically reserves plain-error findings for criminal matters, this decision signals willingness to apply the doctrine in civil malpractice when juror guidance is fatally flawed.
3. Emphasis on Expert Testimony: Parties now have clearer guidance that expert evidence is the non-negotiable yardstick for determining standard of care; jury instructions must say so without ambiguity.
4. Template Revisions for NJI2d Civ. Pattern instruction committees will likely revise medical-negligence templates to avert similar ambiguity (e.g., explicitly stating: “You must determine the standard of care from the expert testimony presented.”).
5. Error-Preservation Tactics: Even with this strengthened plain-error safety net, counsel will redouble efforts to preserve instructional objections, knowing that reversal, although possible, is not guaranteed when they stay silent.

4. Complex Concepts Simplified

• Plain Error: A glaring mistake in a trial that courts will correct on appeal even if no lawyer objected during trial, because leaving it uncorrected would undermine justice.
• Standard of Care: The level of knowledge, skill, and diligence that a reasonably careful healthcare provider in the same speciality and community would use under similar circumstances.
• Expert Witness: A specialist whose scientific, technical, or professional knowledge helps the jury understand evidence or determine a fact—essential in medical cases.
• Tachysystole: Excessive uterine activity—more than five contractions in ten minutes (averaged over thirty), or under alternative criteria, elevated resting tone, shortened rest intervals, or prolonged contractions.
• Brachial Plexus Injury: Damage to the network of nerves running from the neck to the shoulder, often leading to arm weakness or paralysis when injured during birth.

5. Conclusion

J.R.M.B. v. Alegent Creighton Health is less about obstetrics than about the integrity of jury instructions in professional-negligence trials. By labelling the misdirection on expert testimony as plain error, the Nebraska Supreme Court amplifies two doctrines:

1. The standard of care in medical malpractice must be gauged through expert evidence.
2. When jurors are misled on that cornerstone—even by an unnoticed typo—the appellate court has a duty to intervene to protect the fairness and reputation of the judicial process.

Practitioners should digest this decision as a directive: precision in crafting, reading, and delivering jury instructions is indispensable, especially where specialised expertise forms the backbone of liability.