Background
Richard Schuemann underwent cataract surgery on his left eye in March 2018 and his right eye in April 2018, performed by Omaha ophthalmologist Brent Timperley. Schuemann had previously undergone radial keratotomy procedures. In 2019, he experienced retinal detachments in both eyes that required repair by another physician and left him with diminished vision.
Schuemann sued Timperley for medical malpractice, alleging that Timperley did not obtain informed consent because he failed to explain risks particular to cataract surgery after radial keratotomy. On remand after an earlier appeal concerning the statute of limitations, Schuemann did not disclose any expert witness. Timperley sought summary judgment, supported by his affidavit that he discussed the pertinent risks and that Schuemann’s complications were not caused by any breach of care.
The Court’s Holding
The Nebraska Supreme Court affirmed summary judgment for Timperley. Although Schuemann’s testimony, affidavit, and his wife’s affidavit created a factual dispute over whether Timperley advised him about risks related to his prior radial keratotomy, that dispute was immaterial because Schuemann failed to produce competent evidence of proximate cause.
A lack-of-informed-consent claim requires proof that a reasonably prudent person in the plaintiff’s position would have declined the treatment if properly informed and that the lack of consent proximately caused the claimed injury and damages. Timperley’s affidavit and the absence of any designated medical expert made a prima facie showing on causation. Schuemann, a nonphysician, could not supply a medical causation opinion himself. The common-knowledge exception did not apply, and his appellate theory of dignitary or self-evident damages was either unpreserved or still subject to the statutory causation requirement.
Key Takeaways
- A factual dispute over whether a physician gave an adequate informed-consent warning cannot defeat summary judgment when the plaintiff lacks proof of causation.
- Medical expert testimony is ordinarily required to prove proximate cause in an informed-consent malpractice action.
- Nebraska’s informed-consent statute requires proof both that a reasonable patient would have refused treatment and that the consent failure caused the claimed injuries or damages.
Why It Matters
The decision underscores that informed-consent cases in Nebraska remain medical-negligence actions requiring proof of causation, not simply proof that a patient would have made a different choice with more information. Plaintiffs should identify and disclose qualified medical causation experts, except in the rare case where the causal connection is genuinely obvious to laypersons.