Res Ipsa Loquitur Permitted for Intraoperative Nerve Injury; No “Tensile‑Strength” Prerequisite for Med‑Mal Expert Opinions

Introduction

This medical malpractice appeal arises from an endoscopic cubital tunnel release in which the patient’s ulnar nerve was injured intraoperatively. The district court directed a verdict for the defendants at the close of the plaintiffs’ case. The Nebraska Supreme Court reverses, holding that the plaintiffs presented sufficient evidence to go to the jury under both a traditional medical negligence theory and the doctrine of res ipsa loquitur. The Court also addresses several evidentiary and procedural issues likely to recur on remand, including the admissibility foundation for expert opinions, the qualification of a physical therapist to offer impairment ratings, and the showing required to permit live videoconference testimony under Neb. Rev. Stat. § 24‑734(5).

Parties:

• Plaintiffs-Appellants: Glen and Anne Slater.
• Defendants-Appellees: Dr. Dolf Ichtertz, M.D., and Nebraska Hand & Shoulder Institute, P.C.

Key Issues:

• Whether plaintiffs adduced sufficient expert evidence on standard of care, breach, and causation to survive a directed verdict.
• Whether plaintiffs could proceed to the jury under res ipsa loquitur in an intraoperative nerve injury case.
• Whether the trial court properly excluded portions of the plaintiffs’ expert’s opinion for lack of “tensile strength” foundation.
• Whether a physical therapist could opine on permanent impairment rating.
• What showing is required to allow trial testimony via videoconference under § 24‑734(5).

Summary of the Opinion

The Supreme Court reverses the directed verdict and remands for a new trial. It holds:

• Sufficiency of evidence (traditional malpractice): Plaintiffs presented competent expert testimony on the applicable standard of care, a breach (excessive force applied to the ulnar nerve while advancing the cutting guide), and causation (the intraoperative pressure caused the nerve injury). Expert causation testimony need not use “magic words” like “reasonable medical certainty” if, viewed in its entirety, it expresses probability rather than mere possibility.
• Res ipsa loquitur: Evidence permitted an inference of negligence where (1) this type of intraoperative ulnar nerve injury does not ordinarily occur absent negligence, (2) the instrumentality (cutting guide) was under the surgeon’s exclusive control, and (3) the surgeon offered no plausible non-negligent explanation for the occurrence. The case fits the third medical-res-ipsa category: expert proof in an esoteric field creating an inference of negligence.
• Expert foundation: The trial court abused its discretion by striking the orthopedic hand surgeon’s standard-of-care and breach opinions for lack of “tensile strength” knowledge. In this surgical context, surgeons judge pressure by “feel” and experience; lack of biomechanical quantification goes to weight, not admissibility, absent a Schafersman/Daubert challenge.
• Physical therapist impairment rating: No abuse of discretion in excluding the PT’s impairment rating where the therapist admitted he was not qualified to render impairment ratings under the AMA Guides on which he relied. The Court leaves open whether a PT could ever be qualified to give such an opinion under different proof.
• Remote testimony under § 24‑734(5): The moving party must make a witness-specific showing of good cause with evidence; blanket motions are insufficient. The district court properly denied the motion because plaintiffs identified no specific witness and offered no evidentiary showing. The Court notes, but does not resolve, statutory tensions with § 24‑303(2).

Analysis

Precedents Cited and Their Influence

• Directed verdict standard. The Court reiterates that a directed verdict is appropriate only when reasonable minds can draw but one conclusion; courts must accept as true all competent evidence for the non-movant and give every reasonable inference. See Bruce Lavalleur, P.C. v. Guarantee Group; Anderson v. Babbe; Aon Consulting v. Midlands Financial.
• Medical malpractice elements and expert proof. The Court applies § 44‑2810 (ordinary and reasonable care under like circumstances in similar localities). It follows Evans v. Freedom Healthcare and Carson v. Steinke on expert proof requirements, including causation standards.
• “Magic words” not required for causation. Building on Carson v. Steinke, Rankin v. Stetson, Steineke v. Share Health Plan, and Miner v. Robertson, the Court emphasizes that causation opinions need not use “reasonable medical certainty” if they express probability, not mere possibility, judged in the context of the entire opinion.
• Res ipsa loquitur framework. The opinion applies the three recognized medical-res-ipsa scenarios and elements summarized in Evans v. Freedom Healthcare, Keys v. Guthmann, and McLaughlin Freight Lines v. Gentrup. It clarifies a court’s gatekeeping role: do not weigh evidence; decide if reasonable persons could find the elements are met by a preponderance.
• Expert foundation law. The Court reaffirms that the proponent bears the burden to establish foundation; opinions lacking adequate foundation are inadmissible (Konsul v. Asensio; Stukenholtz v. Brown; Jackson v. Brotherhood’s Relief). It distinguishes foundational sufficiency from weight—jurors are not bound by expert opinions (SID No. 596 v. THG Development).
• Remote testimony. The Court interprets § 24‑734(5): good cause is required; objector may prove unfairness or unreliability. It notes potential statutory tension with § 24‑303(2) but declines to reconcile the statutes in this case.
• Proceeding on dual theories and jury instructions (concurrence). Justice Stacy’s concurrence canvasses Knies v. Lang, Beatty v. Davis, Long v. Hacker, and Anderson v. Union Pacific. Plaintiffs may proceed on both specific negligence and res ipsa unless the evidence discloses the precise cause, in which case res ipsa should not be instructed.

Legal Reasoning

1) Traditional malpractice — standard of care. Both experts articulated a common, locality-appropriate standard: protect the ulnar nerve from iatrogenic injury; use light, gentle pressure “by feel” when advancing the endoscopic guide; avoid forceful or aggressive pressure. The defendant himself testified that the standard is to “carefully release the ulnar nerve” and that no different standard applies to diabetics. This sufficed to establish the standard of care element at the directed-verdict stage.

2) Breach. The plaintiffs’ expert opined that the surgeon imparted excessive force directly to the nerve, causing injury. Critically, the defendant conceded under questioning that, in hindsight, he “most likely” pushed too hard and that the amount of pressure exceeded what the nerve could tolerate. Although he maintained he used “gentle” pressure, that contradiction is for the jury. At directed verdict, courts must credit the non-movant’s evidence and inferences; this record supports a finding of breach.

3) Causation. The expert testified that the patient’s post-surgical severe ulnar neuropathy, not present preoperatively, was caused by intraoperative pressure when the nerve bunched on the guide. The defendant admitted responsibility, identified the brief struggling period as the time of injury, and acknowledged both a fascicular transection and broader pressure-related injury causing sensory and motor deficits. Although the testimony did not utter “reasonable medical certainty,” it expressed probability and direct linkage—sufficient under Carson and Rankin.

4) Res ipsa loquitur. This case falls within the third medical-res-ipsa category—expert proof in an esoteric field. The evidence permitted a jury finding that:
- Injury not expected without negligence: A fascicular transection during cubital tunnel release is “exceedingly rare,” and intraoperative ulnar nerve injury is very rare (defense expert’s own experience: first occurrence in >2,000 surgeries). The plaintiff’s expert testified such transections can be prevented under ordinary care and identified no non-negligent factor here.
- Exclusive control: The cutting guide was entirely under the surgeon’s control; pressure came 100% from his hand.
- Absence of explanation: The surgeon offered no plausible non-negligent explanation beyond “unclear” anatomical speculation; he disclaimed instrument malfunction and could not explain how the nerve became “bunched” on the guide while fascia remained between the instrument and nerve.
Because reasonable jurors could find the elements “more likely than not,” an inference of negligence should have gone to the jury.

5) Expert foundation — no “tensile strength” prerequisite. The trial court struck key opinions after defense voir dire showed the expert had not studied the ulnar nerve’s tensile strength or calculated force thresholds. The Supreme Court holds this was an abuse of discretion. No evidence showed that the relevant medical community uses biomechanical quantification to set intraoperative pressure; both surgeons testified pressure is governed by clinical “feel” and experience. Absent a reliability challenge under Schafersman/Daubert, unfamiliarity with tensile-strength literature affects weight, not admissibility. The defendant’s “biomechanics” gambit cannot be used to foreclose clinical standard-of-care testimony in this context.

6) Physical therapist impairment rating. The trial court correctly excluded the PT’s impairment rating. He expressly admitted that, using the AMA Guides he relied upon, he was not qualified (as a non-physician) to render a permanent impairment evaluation. The Court did not decide whether a PT might ever be qualified to render such an opinion on a different record.

7) Remote testimony under § 24‑734(5). The movant bears the burden to show good cause, typically on a witness-specific basis, and must present evidence under § 24‑734(5)(a)–(b). A blanket motion for “all out-of-state witnesses” without evidentiary support is insufficient. While an opposing party may object for unreliability or unfairness under § 24‑734(5)(c), the Court affirmed denial here because the plaintiffs failed to establish good cause in the first instance. The Court acknowledged, but declined to resolve, tensions between § 24‑734(5) and § 24‑303(2)’s limits on videoconferenced “trials before a jury.”

Impact and Practical Implications

For Medical Malpractice Litigation in Nebraska

• Res ipsa pathway in surgery cases: Plaintiffs can reach the jury on an inference of negligence for intraoperative injuries when expert testimony shows the event ordinarily does not occur absent negligence, the defendant had exclusive control, and no plausible non-negligent explanation is provided. Slater aligns with Evans and gives concrete application to surgical nerve injuries.
• No biomechanics precondition to expert admissibility: Defense efforts to exclude experts for lacking biomechanical force quantification are unlikely to succeed as foundational challenges where the standard of care is grounded in clinical practice (“gentle pressure,” “by feel”). Such cross-examination goes to weight.
• Causation without “magic words”: Nebraska reaffirms a practical approach: the substance of the opinion controls. Experts should avoid “possibility” verbiage; “probability” expressed in the whole testimony suffices.
• Dual-theory trials and jury instructions: Per the concurrence and prior precedent, plaintiffs may try both specific negligence and res ipsa unless the evidence establishes the precise cause, in which case a res ipsa instruction is improper.

For Trial Judges

• Directed verdicts: Avoid weighing competing expert narratives; ask only whether reasonable jurors could find for the non-movant.
• Res ipsa decisions: Determine whether evidence would allow a jury to find the elements “more likely than not.” Do not reject res ipsa merely because a witness acknowledges a theoretical possibility of non-negligent injury if the record supports probability of negligence.
• Expert foundation: Distinguish foundational admissibility from weight. Absent a reliability challenge, exclude only when the expert lacks the facts or knowledge necessary to form a reasonably accurate conclusion—not because they lack biomechanical formulas irrelevant to clinical practice.
• Remote testimony (§ 24‑734(5)): Require witness-specific proffers with evidentiary support for good cause (e.g., affidavits on illness, unavailability, undue burden, cost). Consider fairness/unreliability objections and craft safeguards (exhibit management protocols, oath administration, technology testing) where appropriate.

For Practitioners

• Building a res ipsa record: Elicit expert testimony on rarity and preventability of the injury under ordinary care, exclusive control, and the absence of a plausible non-negligent explanation; avoid locking into a single precise mechanism if res ipsa instruction is desired.
• Anticipating foundational attacks: Prepare your expert to explain clinical standards (feel, experience, literature); demonstrate that force quantification is not part of ordinary practice; preserve the distinction between admissibility and weight.
• Remote testimony motions: Identify each witness; file affidavits addressing § 24‑734(5)(b) factors (health, subpoena power, scheduling burden, cost); propose concrete fairness safeguards; be ready to address § 24‑303(2) concerns.
• PT impairment opinions: If offering impairment ratings through non-physicians, establish qualifications independent of the AMA Guides or show why the witness is qualified under § 27‑702 despite contrary Guide language; otherwise, stick to functional capacity findings.

Complex Concepts Simplified

• Standard of care: What a reasonably careful provider in the same community and specialty would do under similar circumstances.
• Proximate causation (med-mal): The provider’s deviation caused or contributed to the patient’s injury. Expert opinions must convey probability, not mere possibility.
• Directed verdict: A ruling that no reasonable jury could find for the nonmoving party based on the evidence; all reasonable inferences must favor the nonmoving party.
• Res ipsa loquitur (“the thing speaks for itself”): A rule of evidence allowing the jury to infer negligence without pinpointing the precise negligent act when (1) the event is one that ordinarily does not happen without negligence, (2) the defendant controlled the instrumentality, and (3) the defendant offers no adequate explanation.
• Foundation vs. weight of expert testimony: Foundation asks whether the expert has sufficient facts and knowledge to offer a reliable opinion. Weight addresses how persuasive that opinion is—a question for the jury.
• “Magic words” in expert testimony: Nebraska does not require the phrase “reasonable medical certainty.” Courts look at the whole testimony to assess whether it expresses probability.
• Exclusive control: The defendant managed the instrument or process that caused the injury, making others’ responsibility unlikely.
• Absence of explanation: The defendant has not provided a plausible, non-negligent cause that accounts for the event.

Concurrence Highlight: Trying Both Theories and Jury Instructions

Justice Stacy agrees with the majority and adds guidance for remand: Plaintiffs can proceed on both specific negligence and res ipsa loquitur. However, if the evidence at trial establishes the precise cause of the injury, a res ipsa instruction is improper. This echoes Nebraska precedent (Knies; Beatty; Long; Anderson) and reflects broad national consensus. Trial courts should decide at the close of all evidence whether res ipsa remains appropriate, based on whether the precise cause has been clearly shown.

Conclusion

Slater v. Ichtertz is a significant decision on three fronts. First, it restores the jury’s role in evaluating competing expert narratives in surgical malpractice cases and reaffirms that causation can be proved without talismanic phrasing. Second, it meaningfully opens a res ipsa route to the jury for intraoperative nerve injuries when supported by expert testimony, clarifying the evidentiary threshold and the trial court’s limited role in that threshold determination. Third, it cabins foundational attacks on clinical experts that demand biomechanical quantification foreign to ordinary surgical practice, while reminding bench and bar that reliability challenges must be properly framed and litigated.

On the procedural side, the Court underscores that remote testimony under § 24‑734(5) requires a witness-specific evidentiary showing of good cause, and that a witness’s own admissions can determine qualification to render specialized opinions (such as impairment ratings). Collectively, these holdings will influence how Nebraska courts manage med‑mal trials, how counsel frame expert foundations and res ipsa records, and how parties plan for remote testimony. The case is poised to be cited frequently for its clear articulation of res ipsa in medical contexts and for its practical, experience‑based approach to expert admissibility.