Regier v. Good Samaritan Hosp. (Full Text)

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with deliberation and premeditation “[t]o the extent that he had to
take out a rifle and shoot him numerous times.” Dr. Logan also
concluded that Harms “knew what he was doing” and “certainly
knew the number he was dialing” when he called 911 with a
request for his attorney.
While we recognize that Harms also presented considerable
evidence at trial on the issue of his sanity, based upon the cumu-
lative nature of the inadmissible evidence, the court ’s articulated
findings, and the admissible evidence evaluated as a whole, we
determine that Harms has failed to establish that the district court
resolved the factual issue of his sanity through the use of the
erroneously admitted evidence. For these reasons, we determine
that the Wainwright errors which occurred at trial were harmless
beyond a reasonable doubt.
FORMER OPINION MODIFIED.
MOTION FOR REHEARING OVERRULED.

ADRIAN R. REGIER, BY LORIE REGIER, GUARDIAN AND
CONSERVATOR, APPELLANT, V. GOOD SAMARITAN HOSPITAL,
KEARNEY, NEBRASKA, A CORPORATION, ET AL., APPELLEES.
___N.W.2d___

Filed September 20, 2002. No. S-01-631.

1. Demurrer: Pleadings: Appeal and Error. In an appellate court ’s review of a rul-
ing on a demurrer, the court is required to accept as true all the facts which are well
pled and the proper and reasonable inferences of law and fact which may be drawn
therefrom, but not the conclusions of the pleader.
2. ____: ____: ____. In reviewing an order sustaining a demurrer, an appellate court
accepts the truth of the facts which are well pled, together with the proper and rea-
sonable inferences of law and fact which may be drawn therefrom, but does not
accept the conclusions of the pleader.
3. Demurrer: Pleadings. In considering a demurrer, a court must assume that the
facts pled, as distinguished from legal conclusions, are true as alleged and must
give the pleading the benefit of any reasonable inference from the facts alleged, but
cannot assume the existence of facts not alleged, make factual findings to aid the
pleading, or consider evidence which might be adduced at trial.
4. Pleadings: Words and Phrases. A statement of facts sufficient to constitute a
cause of action means a narrative of events, acts, and things done or omitted which
show a legal liability of the defendant to the plaintiff.

Nebraska Advance Sheets
REGIER V. GOOD SAMARITAN HOSP.
Cite as 264 Neb. 660

661

5. Demurrer: Pleadings. In determining whether a cause of action has been stated, the
petition is to be construed liberally, and if, as so construed, the petition states a cause
of action, a demurrer based on the failure to state a cause of action must be overruled.
6. ____: ____. When a demurrer to a petition is sustained, a court must grant leave to
amend the petition unless it is clear that no reasonable possibility exists that
amendment will correct the defect.

Appeal from the District Court for Buffalo County: JOHN P.
ICENOGLE, Judge. Reversed.

Larry C. Johnson, of Johnson, Vaughan & Welch, P.C., for
appellant.

Patrick G. Vipond and Shun Lee Fong, of Lamson, Dugan &
Murray, L.L.P., for appellee John Finkner, M.D.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, MCCORMACK,
and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.
NATURE OF CASE
Lorie Regier (Regier), the guardian and conservator of Adrian
R. Regier (Adrian), appeals from the order of the district court
for Buffalo County which sustained the demurrer of John
Finkner, M.D., and dismissed Regier ’s cause of action against
Finkner without leave to replead. We reverse.

STATEMENT OF FACTS
On January 8, 2001, Regier filed a petition against various
defendants, including Finkner. This appeal is limited to the dis-
missal of Regier ’s cause of action against Finkner, without leave
to replead. We summarize the facts alleged by Regier in her peti-
tion. Adrian was born on July 6, 1980, and lives in Perkins
County, Nebraska. Regier is Adrian ’s mother. On September 26,
1997, Adrian sustained a concussion while playing high school
football. He was taken from the field to the Community Hospital
in McCook, Nebraska, where he was admitted to the emergency
room at approximately 9:45 p.m. and treated by Corrine
Phillips-Ward, M.D., and Elizabeth Edwards, M.D. At approxi-
mately 11:45 p.m., Phillips-Ward contacted the Good Samaritan
Hospital (Good Samaritan) in Kearney, Nebraska, and spoke
with Finkner. Good Samaritan is a “
‘regional referral center ’

”
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and has “specialized capabilities,” including helicopter ambu-
lance service, a shock-trauma unit, and neurosurgery expertise.
Although paragraph 10 of the petition alleges that Finkner is an
employee of the “Community Hospital,” given the remaining
allegations in the petition and the parties ’ briefs, we understand
this statement to be an allegation that Finkner is an employee of
Good Samaritan. It is alleged that notwithstanding the fact that
Good Samaritan had the specialized capabilities or facilities
needed by Adrian and the “
‘capacity ’
” to treat Adrian, upon
receiving the call from Phillips-Ward, Finkner refused to accept
Adrian ’s transfer from the Community Hospital to Good
Samaritan. There is no suggestion in the petition that in this tele-
phone call, Finkner said anything of medical substance. Adrian
was not taken to Good Samaritan.
Sometime after 3:45 a.m. on September 27, 1997, Adrian was
transferred to Lincoln General Hospital in Lincoln, Nebraska.
Upon arrival, his intracranial pressure was measured at 60. A
CAT scan of his head revealed severe cerebral edema due to his
head injury. Despite efforts by the medical staff at Lincoln
General Hospital to relieve Adrian ’s intracranial pressure by
controlled ventilation and intermittent mannitol, Adrian did not
make significant neurological improvement and sustained
severe traumatic brain injury.
With respect to Finkner, the petition alleges, inter alia, that
Finkner ’s refusal to accept the transfer of Adrian was in viola-
tion of Good Samaritan ’s hospital standards, bylaws, rules, and
regulations regarding the acceptance of transfer patients and that
it also violated the general industry standard regarding the
acceptance of transferee patients. The petition does not recite or
suggest the substance of the standards, bylaws, rules, and regu-
lations or that Finkner had agreed to adhere to them.
On February 12, 2001, Finkner filed a demurrer claiming, inter
alia, that the petition failed to state a cause of action against him.
On March 19, the district court held a hearing on Finkner’s demur-
rer. In an order dated May 7, the district court sustained Finkner’s
demurrer. The district court stated that Finkner had not been an
attending physician for Adrian and that “no physician-patient
relationship ha[d] been or could be alleged.” The district court
concluded that Finkner had no liability to Adrian, because Adrian

Nebraska Advance Sheets
REGIER V. GOOD SAMARITAN HOSP.
Cite as 264 Neb. 660

663

had never been received by or entered into Good Samaritan for
treatment. Based upon these determinations, the district court
dismissed Regier’s cause of action against Finkner, stating:
The Court finds that [Regier] has failed to state a cause
of action against defendant Finkner. It also appears to this
Court that it will not be possible for [Regier], given the
facts presented in the petition, to set forth sufficient facts
upon which a cause of action against . . . Finkner can be
alleged. The Court therefore dismisses this cause of action.
The district court entered its order dismissing Regier ’s cause of
action against Finkner without leave to amend. Regier appeals.

ASSIGNMENTS OF ERROR
On appeal, Regier assigns two errors. Regier claims, restated,
that the district court erred (1) in sustaining Finkner ’s demurrer
and (2) in dismissing Regier ’s cause of action against Finkner
without leave to amend.

STANDARDS OF REVIEW
[1,2] In an appellate court ’s review of a ruling on a demurrer,
the court is required to accept as true all the facts which are well
pled and the proper and reasonable inferences of law and fact
which may be drawn therefrom, but not the conclusions of the
pleader. McCormick v. City of Norfolk, 263 Neb. 693, 641
N.W.2d 638 (2002); McCarson v. McCarson, 263 Neb. 534, 641
N.W.2d 62 (2002). In reviewing an order sustaining a demurrer,
an appellate court accepts the truth of the facts which are well
pled, together with the proper and reasonable inferences of law
and fact which may be drawn therefrom, but does not accept the
conclusions of the pleader. Shirley v. Neth, 264 Neb. 138, 646
N.W.2d 587 (2002); Spradlin v. Dairyland Ins. Co., 263 Neb.
688, 641 N.W.2d 634 (2002); Mulinix v. Roberts, 261 Neb. 800,
626 N.W.2d 220 (2001). Whether a petition states a cause of
action is a question of law regarding which an appellate court
has an obligation to reach a conclusion independent of the infe-
rior court. Shirley, supra.

ANALYSIS
[3,4] At issue in this case is whether Regier ’s petition states a
cause of action against Finkner and, if not, whether the district

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court should have granted leave to Regier to replead. In consid-
ering a demurrer, a court must assume that the facts pled, as dis-
tinguished from legal conclusions, are true as alleged and must
give the pleading the benefit of any reasonable inference from
the facts alleged, but cannot assume the existence of facts not
alleged, make factual findings to aid the pleading, or consider
evidence which might be adduced at trial . Chambers v.
Lautenbaugh, 263 Neb. 920, 644 N.W.2d 540 (2002). A state-
ment of facts sufficient to constitute a cause of action means a
narrative of events, acts, and things done or omitted which show
a legal liability of the defendant to the plaintiff. Spradlin, supra.
[5,6] In determining whether a cause of action has been stated,
the petition is to be construed liberally, and if, as so construed,
the petition states a cause of action, a demurrer based on the fail-
ure to state a cause of action must be overruled. Chambers,
supra; Spradlin, supra. When a demurrer to a petition is sus-
tained, a court must grant leave to amend the petition unless it is
clear that no reasonable possibility exists that amendment will
correct the defect. Northwall v. State, 263 Neb. 1, 637 N.W.2d
890 (2002).
The relevant portions of the petition regarding Finkner are
paragraphs 10 and 36. Paragraph 10 reads as follows: “At all
times pertinent hereto, Defendant FINKNER was an employee
and/or agent of the Defendant COMMUNITY HOSPITAL [sic]
acting within the scope and course of such employment and/or
agency in the rendition of his medical services.” Paragraph 36
alleges the following:
Defendant FINKNER was negligent in his medical care
and treatment of Adrian in one or more of the following
particulars:
a) in failing to accept the transfer of Adrian to the
Defendant GOOD SAMARITAN given Adrian ’s medical
condition and the capacity and the specialized capabilities
of Defendant GOOD SAMARITAN to treat that condition
in violation of the applicable standard of care in the provi-
sions of 42 U.S.C.§1395dd [(1994), Emergency Medical
Treatment and Active Labor Act];
b) in failing to accept the transfer of Adrian to the
Defendant GOOD SAMARITAN given Adrian ’s medical

Nebraska Advance Sheets
REGIER V. GOOD SAMARITAN HOSP.
Cite as 264 Neb. 660

665

condition and the Defendant hospital ’s specialized capa-
bilities and capacity to treat that condition in violation of
hospital standards, bylaws, rules and regulations for the
acceptance of transfer and care of patient ’s [sic] in
Adrian ’s condition;
c) in failing to accept the transfer of Adrian to the
Defendant GOOD SAMARITAN given Adrian ’s medical
condition and said Hospital ’s specialized capabilities and
capacity to treat that condition in violation of industry
standards for the acceptance of transfer and care of patients
in Adrian ’s condition.
In her brief before this court, Regier asserts that “the facts
alleged in the Petition support both a general negligence claim
and a medical malpractice claim against . . . Finkner.” Brief for
appellant at 12. Regier acknowledges that Finkner did not
“treat ” Adrian; however, Regier asserts that “Finkner, as the
emergency room physician, [was] contractually obligated to
provide emergency room services . . . and owed a duty to
Adrian.” Brief for appellant at 13.
This court has previously recognized that generally, a physi-
cian ’s duty to exercise the required skill or standard of care must
arise out of the physician-patient relationship and that the rela-
tionship can be said to arise when the physician undertakes treat-
ment of the patient. Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d
125 (1991). See, also, Gallion v. Woytassek, 244 Neb. 15, 504
N.W.2d 76 (1993). We have also previously stated that the “exis-
tence of a physician-patient relationship is normally a question of
fact ” and “the party claiming the existence of the relationship
must allege some facts to show that the relationship came into
existence.”
Id. at 20, 504 N.W.2d at 80. In Flynn, we acknowl-
edged that “[s]ome courts . . . have held that a physician-patient
relationship is not a necessary prerequisite for sustaining an
action in medical malpractice, and have grounded liability upon
the traditional duty analysis for negligence.”
Id. at 65, 469
N.W.2d at 128. We noted, however, that under the facts of the
Flynn case, nothing was called to our attention to support the
imposition of such a duty, and, therefore, it was not necessary to
determine in Flynn the general question of whether liability can
exist absent an underlying physician-patient relationship.

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In the instant case, Regier alleges in her petition that Finkner
was “negligent in his medical care and treatment of Adrian.” The
petition contains no allegations, however, that Finkner undertook
to provide any medical care or treatment to Adrian. See id. To the
contrary, the petition alleges that Finkner refused to accept the
transfer and thus alleges facts that no physician-patient relation-
ship based on treatment came into existence. Finally, although in
her brief Regier claims that the allegations in the petition support
a general negligence claim against Finkner, the petition fails to
allege facts establishing that under existing Nebraska jurispru-
dence, Finkner owed a duty to Adrian. See id.
We acknowledge that there are allegations that Finkner ’s
refusal to accept Adrian ’s transfer was in violation of Good
Samaritan ’s bylaws, rules, and regulations, although the sub-
stance of such bylaws, rules, and regulations are not alleged.
The petition alleges that Finkner is an employee and agent of
Good Samaritan; however, it does not allege that he was subject
to a contract which obligated him to follow the bylaws, rules,
and regulations which might have benefited Adrian. The allega-
tions against Finkner do not state what, if any, undertakings
Finkner assumed.
As noted, the petition fails to allege facts setting forth a
physician-patient relationship between Finkner and Adrian.
Furthermore, the petition sets forth no facts establishing a duty
Finkner owed to Adrian. Accordingly, the petition does not ade-
quately plead a cause of action under Nebraska law against
Finkner, and the district court correctly so ruled.
When a demurrer to a petition is sustained, a court must grant
leave to amend the petition unless it is clear that no reasonable
possibility exists that amendment will correct the defect.
Northwall v. State, 263 Neb. 1, 637 N.W.2d 890 (2002). While
the current allegations in the petition fail to state a cause of
action against Finkner, it is possible that Regier might be able to
amend the petition by alleging facts imposing a duty on the part
of Finkner in favor of Adrian. Accordingly, the district court
erred in denying Regier leave to replead.

CONCLUSION
The petition does not adequately plead a cause of action
against Finkner. However, a reasonable possibility exists that

Nebraska Advance Sheets
FISCHER V. CVITAK
Cite as 264 Neb. 667

667

amendment will correct the defect. Although the district court
correctly sustained Finkner ’s demurrer to the petition, it erred
when it denied leave to replead. We, therefore, reverse the dis-
trict court ’s order.

REVERSED.

WRIGHT, J., not participating.

JOSHUA FISCHER, APPELLANT, V.
ASHLEIGH CVITAK, APPELLEE.
___N.W.2d___

Filed September 20, 2002. No. S-01-711.

1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
2. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which
does not involve a factual dispute is determined by an appellate court as a matter
of law, which requires the appellate court to reach a conclusion independent of the
lower court ’s decision.
3. Actions: Final Orders: Appeal and Error. An order is final and appealable when
the substantial rights of the parties to the action are determined, even though the
cause is retained for the determination of incidental matters.

Appeal from the County Court for Lancaster County: JEAN A.
LOVELL, Judge. Appeal dismissed.

Eddy M. Rodell, of Wolgamott & Rodell, P.C., for appellant.

Susan Kubert Sapp and Pamela K. Epp, of Cline, Williams,
Wright, Johnson & Oldfather, P.C., for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, MCCORMACK,
and MILLER-LERMAN, JJ.

CONNOLLY, J.
Joshua Fischer appeals the county court ’s order dismissing his
petition to establish paternity, awarding attorney fees against him
for filing a frivolous pleading, and awarding fees to a guardian ad
litem. Fischer filed this appeal more than 30 days after the order
awarding attorney fees was entered but within 30 days of the