Mahnke v. State

(f) Alternative Purpose
As stated above, the statute in question has the alternative,
nonpunitive purpose of protecting the public from accidents,
fatalities, and injuries. Any deterrent purpose is merely second-
ary to the statute’s stated, nonpunitive purpose.
(g) Excessive
The statute’s nonpunitive purpose of protecting the public
from accidents, fatalities, and injuries is justified based on the
offender’s willingness to engage in conduct that, if continued,
poses a danger to the public. In sum, there simply is very little
showing, to say nothing of the “clearest proof” required, that a
1-year revocation is so punitive in purpose or effect as to make
the sanction criminal.
VI. CONCLUSION
For the above-stated reasons, we reverse the district court’s
judgment and remand the cause to the district court with direc-
tions to affirm the judgment of the county court which overruled
Appellees’ pleas in bar.
R eveRsed and Remanded with diRections .
G eRRaRd, J., concurs in the result.
steven mahnke , m.d., appellee , v . state of nebRaska ,
depaRtment of health and human seRvices
R eGulation and licensuRe , appellant .
751 N.W.2d 635
Filed July 11, 2008. 	No. S-06-918.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review under the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate court for errors appear-
ing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable.
mAhNkE v. STATE 	57
Cite as 276 Neb. 57
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:52 AM CST

3. Administrative Law: Statutes: Appeal and Error. The meaning and interpreta-
tion of statutes and regulations are questions of law for which an appellate court
has an obligation to reach an independent conclusion irrespective of the decision
made by the court below.
4. Statutes. All statutes relating to the same subject are considered as parts of a
homogeneous system, and later statutes are considered as supplementary to preced-
ing enactments.
5. ____. Statutes relating to the same subject, although enacted at different times, are
in pari materia and should be construed together.
6. ____. To ascertain the proper meaning of a statute, a court may refer to later as well
as earlier legislation upon the same subject.
7. Administrative Law. To be valid, a rule or regulation must be consistent with the
statute under which the rule or regulation is promulgated.
8. Administrative Law: Legislature. It is a fundamental general principle that the
Legislature may not delegate legislative power to an administrative or execu-
tive authority.
9. Administrative Law: Statutes. An administrative agency is limited in its rule-
making authority to powers granted to the agency by the statutes the agency is to
administer; the agency may not employ its rulemaking power to modify, alter, or
enlarge portions of its enabling statute.
Appeal from the District Court for Lancaster County: paul d.
meRRitt , JR., Judge. Affirmed.
Jon Bruning, Attorney General, and James D. Smith for
appellant.
William m. Lamson, Jr., and Denise m. Destache, of Lamson,
Dugan & murray, L.L.P., for appellee.
heavican, 	C.J., 	wRiGht, 	connolly, 	G eRRaRd, 	stephan,
mccoRmack, and milleR-leRman, JJ.
connolly, J.
I. SUmmARY
The State brought disciplinary charges against Steven mahnke,
m.D., alleging mahnke engaged in unprofessional conduct.
Following a hearing before the hearing officer, the director
of the Department of health and human Services Regulation
and Licensure (the Department) suspended mahnke’s license to
practice medicine and surgery in Nebraska for 90 days. mahnke
moved for judicial review. An issue before the district court
was whether the locality rule applied in disciplinary actions
for unprofessional conduct. The locality rule is the statutory
58 	276 NEBRASkA REPORTS

standard of care for medical malpractice actions under Neb. Rev.
Stat. § 44-2810 (Reissue 2004). The district court concluded that
the locality rule does apply and determined that the State failed
to prove unprofessional conduct under that standard.
The State appealed the district court’s decision regarding the
locality rule, but we believe the threshold issue is whether the
State may discipline a physician for a single act of “ordinary
negligence.” We use the term “ordinary negligence” here to
mean medical negligence that does not show a physician’s gross
incompetence or gross negligence in treating a patient or a pat-
tern of negligent conduct. We conclude that the State may not
discipline a physician for a single act of ordinary negligence. We
affirm the district court’s reversal of mahnke’s discipline.
II. BACkGROUND
mahnke has practiced medicine as a board-certified family
practice physician in Central City, Nebraska, since 1984. R.C.
had been mahnke’s patient since 1985. In 2003, she became
pregnant. On December 10, R.C. reported that she had been nau-
seated and feverish for 2 to 3 days and was experiencing brown
vaginal discharge. mahnke ordered an ultrasound. The radiolo-
gist informed mahnke of fetal demise and stated that the fetus
looked like it was probably 13 to 14 weeks into gestation.
mahnke 	gave 	R.C. 	the 	option 	to 	have 	an 	obstetrician-
gynecologist in hastings do a dilation and curettage (D&C) or
to have mahnke do it in Central City. R.C. decided that mahnke
should do the D&C in Central City, and the surgery was sched-
uled for the following morning at the Litzenberg memorial
County hospital.
mahnke did the D&C on December 11, 2003. he initially
used a dull curette. R.C. started bleeding “pretty rapidly” soon
after the surgery began. mahnke had difficulty separating the
placenta from the uterine wall. he decided he needed to switch
to a sharp curette to remove the placenta. After changing to the
sharp curette, mahnke was eventually able to free the placenta.
In the process, he perforated the uterus. R.C.’s bleeding slowed
after mahnke removed the placenta. Following the surgery,
mahnke did what he could to stabilize R.C., but she went into
cardiac arrest. R.C. was taken by helicopter to St. Elizabeth
mAhNkE v. STATE 	59
Cite as 276 Neb. 57

Regional medical Center in Lincoln, where she later died.
Pathology reports later showed that R.C. suffered from placenta
increta. This is a rare condition in which the placenta invades
the muscle layer of the uterus, making it difficult to separate the
placenta from the wall of the uterus.
In march 2005, the State filed its operative petition for disci-
plinary action against mahnke. In that petition, the State alleged
that his conduct constituted unprofessional conduct and practice
beyond the authorized scope. But the State later moved to dismiss
the allegation of practice beyond the authorized scope, leaving
only the allegations of unprofessional conduct under Neb. Rev.
Stat. § 71-148 (Reissue 2003) and 172 Neb. Admin. Code, ch.
88, § 013 (1999). At the hearing, the State’s expert testified
that Nebraska family practitioners or obstetrician-gynecologists
would provide substandard care if they used dull curettage
instead of suction on a second-trimester fetal demise.
Following the hearing, the director found that mahnke’s
conduct was unprofessional conduct and practice outside the
normal standard of care in Nebraska. The director entered an
order suspending mahnke’s license for 90 days, requiring a
refresher course in obstetrics, prohibiting him from performing
D&C or dilation and evacuation procedures except to save the
mother’s life or in an emergency, and imposing a 2-year proba-
tion upon reinstatement.
mahnke petitioned the district court for judicial review. The
court granted his motion to stay the director’s order, on the con-
dition that he not engage in any obstetrical procedures while the
case is pending.
mahnke argued that in determining whether his conduct
was unprofessional, the conduct must be judged by the locality
rule that applies in professional negligence actions under the
Nebraska hospital-medical Liability Act. The State argued that
the locality rule does not apply to unprofessional conduct in
disciplinary proceedings and that mahnke’s conduct should be
judged by the national standard of care. The court agreed with
mahnke that the locality rule did apply in determining whether
his acts constituted unprofessional conduct for the disciplinary
action. Under that standard, the court concluded that the State
failed to present clear and convincing evidence that mahnke’s
60 	276 NEBRASkA REPORTS

treatment of R.C. was unprofessional conduct under Nebraska’s
Uniform Licensing Law or § 013.18 of the Department’s regula-
tions. The court reversed the director’s order.
III. ASSIGNmENTS OF ERROR
The State assigns, restated, that the district court erred in (1)
applying the locality rule from the Nebraska hospital-medical
Liability Act when construing the “unprofessional conduct”
discipline grounds and (2) concluding, after erroneously judging
the evidence by the locality rule, that the State failed to prove
unprofessional conduct by clear and convincing evidence.
IV. STANDARD OF REVIEW
[1,2] The State appealed the district court’s order under Neb.
Rev. Stat. § 71-159 (Reissue 2003). That statute provides that
“[b]oth parties [to a disciplinary proceeding under the Uniform
Licensing Law] shall have the right of appeal, and the appeal
shall be in accordance with the Administrative Procedure Act.”
A judgment or final order rendered by a district court in a
judicial review under the Administrative Procedure Act may be
reversed, vacated, or modified by an appellate court for errors
appearing on the record.1 When reviewing such an order, the
inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.2
[3] The meaning and interpretation of statutes and regulations
are questions of law for which an appellate court has an obliga-
tion to reach an independent conclusion irrespective of the deci-
sion made by the court below.3
V. ANALYSIS
In its amended petition, the State alleged that mahnke should
be disciplined under Neb. Rev. Stat. § 71-147(10) (Reissue
2003) because his conduct constituted unprofessional conduct
as defined in § 71-148 of the Uniform Licensing Law and
1 Zwygart v. State, 273 Neb. 406, 730 N.W.2d 103 (2007).
2 Id.
3 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570
(2007).
mAhNkE v. STATE 	61
Cite as 276 Neb. 57

§ 013.18 of the Department’s regulations. At all relevant times,
the provisions in §§ 71-147 and 71-148 appeared in the Uniform
Licensing Law in chapter 71 of the Nebraska Revised Statutes.
The Legislature has since transferred these provisions to the
Uniform Credentialing Act in chapter 38. We will retain the ref-
erences to chapter 71. We begin by reviewing the framework of
these statutory provisions and the Department’s regulation.
1. statutoRy and R eGulatoRy fRamewoRk
Section 71-147 of the Uniform Licensing Law sets out the
general grounds for disciplinary action against a professional
license. It states in relevant part: “A license . . . to practice a
profession may be . . . limited, revoked, or suspended . . . when
the . . . licensee . . . is guilty of any of the following acts or
offenses: . . . (10) Unprofessional conduct.” Unprofessional
conduct is defined in § 71-148 of the Uniform Licensing Law.
The introductory paragraph of § 71-148 provides: “For purposes
of section 71-147, unprofessional conduct means any departure
from or failure to conform to the standards of acceptable and
prevailing practice of a profession or occupation or the ethics
of the profession or occupation . . . .” The State’s first charge
alleged unprofessional conduct under this general definition in
the introductory paragraph of § 71-148.
Following this opening paragraph of § 71-148 are 22 sub-
sections. In subsections (1) through (21), § 71-148 sets out a
nonexclusive list of 21 acts of unprofessional conduct. In its
second unprofessional conduct charge, the State did not allege
that any of these specific examples were applicable. Instead, it
alleged unprofessional conduct under subsection (22). Under
subsection (22), unprofessional conduct also includes “[s]uch
other acts as may be defined in rules and regulations adopted
and promulgated by the board of examiners in the profession of
the . . . licensee . . . with the approval of the department.” Thus,
the State’s second charge alleges unprofessional conduct under
the Department’s regulations.
Title 172, chapter 88, of the Nebraska Administrative Code
contains the Department’s regulations governing the practice
of medicine and surgery. Within chapter 88 is § 013, which
defines certain acts as “unprofessional conduct, pursuant to . . .
62 	276 NEBRASkA REPORTS

§71-148(22), and where applicable, further construes the unlaw-
ful or unprofessional acts listed in . . . §§ 71-147 and 71-148.”
Section 013.18 defines unprofessional conduct to include “[a]ny
conduct or practice outside the normal standard of care in the
State of Nebraska which is or might be harmful or danger-
ous to the health of the patient or the public.” This is the only
regulatory provision the State relies on. Section 013.18 pro-
vides no definition for “normal standard of care in the State
of Nebraska.”
In summary, § 71-147(10) provides that disciplinary action
may be taken against a professional license for “[u]nprofessional
conduct” by the licensee. Section 71-148 generally defines
“unprofessional conduct” as “any departure from or failure to
conform to the standards of acceptable and prevailing practice
of a profession.” It also includes, under subsection (22), “acts
as may be defined in rules and regulations.” Finally, § 013.18 of
the Department’s regulations governing the practice of medicine
and surgery defines “unprofessional conduct” to include “[a]ny
conduct or practice outside the normal standard of care in the
State of Nebraska.”
2. the thReshold Q uestion is whetheR the state may
discipline a physician foR a sinGle act
of oRdinaRy neGliGence
The State argues on appeal that the district court erred in
determining the locality rule is the standard of conduct in a dis-
ciplinary action for unprofessional conduct. mahnke contends,
however, that we should affirm the district court’s decision
regardless of the standard applied, because the State may not
discipline him for a single act of alleged negligence. mahnke
argues that the relevant statutes do not provide for discipline
against a physician based on ordinary negligence. he further
argues that § 013.18 of the Department’s regulations could sub-
ject a physician to discipline for an act of ordinary negligence
and is therefore invalid as inconsistent with the statutes.
The State responds that it does not contend a single act
of ordinary negligence would be grounds for discipline. The
State argues that it “never charged . . . mahnke with ‘ordi-
nary negligence,’” but instead charged him with unprofessional
mAhNkE v. STATE 	63
Cite as 276 Neb. 57

conduct.4 In fact, the State further concedes, “[N]or do the
disciplinary statutory provisions of §§ 71-147 and 71-148 of
the Uniform Licensing Law state that ‘ordinary negligence’ is
grounds for disciplining a medical license.”5 The State appar-
ently believes that any act of medical negligence may be grounds
for discipline if the charge is couched as unprofessional conduct
rather than in negligence terms. This artificial distinction is not
convincing. We conclude that the threshold question is whether
the State can subject a physician to discipline for a single act of
ordinary negligence.
3. the G eneRal definition of unpRofessional conduct in
§ 71-148 does not include a sinGle act
of oRdinaRy neGliGence
As noted, in its first charge, the State alleged that mahnke’s
conduct constituted unprofessional conduct as generally defined
in the introductory paragraph of § 71-148: i.e., “any departure
from or failure to conform to the standards of acceptable and
prevailing practice of a profession.” We recognize that this
broad definition could be interpreted to include as unprofes-
sional conduct a physician’s breach of a standard of care in
treating a patient. We believe, however, that a 1994 amend-
ment to § 71-147 shows that this general definition in § 71-148
does not include as unprofessional conduct a single act of
ordinary negligence.
[4-6] To extract meaning from statutes and regulations, we
are guided by familiar statutory canons. We construe all statutes
relating to the same subject as parts of a homogeneous system
and later statutes as supplementary to preceding enactments.6
Statutes relating to the same subject, although enacted at differ-
ent times, are in pari materia, and we construe them together.7
4 Reply brief for appellant at 2.
5 Id.
6 State v. Blevins, 3 Neb. App. 111, 523 N.W.2d 701 (1994). See, also,
Georgetowne Ltd. Part. v. Geotechnical Servs., 230 Neb. 22, 430 N.W.2d
34 (1988).
7 Blevins, supra note 6. See, also, Georgetowne Ltd. Part., supra note 6.
64 	276 NEBRASkA REPORTS

To ascertain the proper meaning of a statute, we may refer to
later as well as earlier legislation upon the same subject.8
Subsection (5) of § 71-147 is critical to our analysis. Besides
subsection (10) (unprofessional conduct), § 71-147 contains
22 other subsections that provide grounds for professional dis-
cipline. Under subsection (5), the State may discipline a pro-
fessional for “[p]ractice of the profession (a) fraudulently, (b)
beyond its authorized scope, (c) with manifest incapacity, (d)
with gross incompetence or gross negligence, or (e) in a pat-
tern of negligent conduct.”9 Subsection (5) defines “pattern of
negligent conduct” as “a continued course of negligent conduct
in performing the duties of the profession.”
The Legislature added subsection (e) to § 71-147(5) as a
ground for discipline in 1994.10 This addition was after the
Legislature added the general definition of unprofessional con-
duct to the introductory paragraph of § 71-148 in 1993.11 We
find significant the Legislature’s addition of “pattern of negli-
gent conduct” in § 71-147(5)(e) after it had added the general
definition in § 71-148.
If the Legislature had originally intended or inadvertently
permitted the State to discipline a licensed professional for a
single act of ordinary negligence under the general definition
of unprofessional conduct in § 71-148, then adding subsection
(e) to § 71-147(5) changed that intent or oversight. When the
Legislature adopts an amendment, we presume that it intended
to make some change in the existing law.12 The only purpose for
adding § 71-147(5)(e) would have been to clarify that the State
may not base a disciplinary action on a single act of negligent
conduct that fails to show a pattern.
Conversely, if the Legislature did not originally intend to allow
the State to discipline a licensed professional for a single act of
8 See Gage Cty. Bd. v. Nebraska Tax Equal. & Rev. Comm., 260 Neb. 750, 619
N.W.2d 451 (2000).
9 § 71-147(5) (emphasis supplied).
10 See 1994 Neb. Laws, L.B. 1223.
11 See 1993 Neb. Laws, L.B. 536.
12 See Kalisek v. Abramson, 257 Neb. 517, 599 N.W.2d 834 (1999).
mAhNkE v. STATE 	65
Cite as 276 Neb. 57

ordinary negligence under the general definition in § 71-148,
then adding “a pattern of negligent conduct” in § 71-147(5)(e)
only clarified that original intent.
Therefore, regardless of the Legislature’s original intent or
oversight about whether the general definition of unprofessional
conduct in § 71-148 included a single act of ordinary negligence,
we conclude that its addition of § 71-147(5)(e) makes clear that
the definition does not currently encompass such a single act.
Thus, the State’s first charge fails to state a ground for discipline
because the State may not discipline mahnke under the general
definition of unprofessional conduct in § 71-148 for his single
allegedly negligent act.
4. section 013.18 of the depaRtment ’ s R eGulations , defininG
unpRofessional conduct , is invalid as inconsistent with
the authoRity GRanted to the depaRtment
undeR the unifoRm licensinG law
In its second unprofessional conduct charge, the State alleged
that mahnke’s conduct constituted unprofessional conduct as
defined in § 013.18 of the Department’s regulations. As noted,
§ 013.18 defines unprofessional conduct to include “[a]ny con-
duct or practice outside the normal standard of care . . . which
is or might be harmful or dangerous to the health of the patient
or the public.” (Emphasis supplied.) We agree with mahnke
that this regulation is broad enough to subject a physician to
discipline for ordinary negligence. We also agree that this result
is inconsistent with the authorizing statutes in the Uniform
Licensing Law.
[7] We have stated that to be valid, a rule or regulation must
be consistent with the statute under which the rule or regulation
is promulgated.13 Section 71-148(22) authorizes the relevant
board of examiners, with the approval of the Department, to
adopt rules and regulations defining acts that constitute unpro-
fessional conduct. Therefore, the Department’s adoption of
specific acts constituting unprofessional conduct in § 013 was
clearly within the Legislature’s contemplation if the acts are
13 Robbins v. Neth, 273 Neb. 115, 728 N.W.2d 109 (2007); City of Omaha v.
Kum & Go, 263 Neb. 724, 642 N.W.2d 154 (2002).
66 	276 NEBRASkA REPORTS

consistent with the statute’s standards. But only § 013.18 of the
regulation is at issue. So our focus is limited to whether this
much broader and undefined provision is consistent with the
authorizing statutes.
(a) Section 71-147 Does Not Include a Single Act of
Ordinary Negligence as a Ground for Discipline
mahnke argues that § 013.18 of the Department’s regulations
is inconsistent with the Uniform Licensing Law because the
statutes do not contemplate ordinary negligence as a ground for
discipline. Like mahnke, we detect a tension between § 013.18
of the regulations and §§ 71-147 and 71-148.
As discussed, § 71-147(5) includes as grounds for profes-
sional discipline “gross negligence” and “a pattern of neg-
ligent conduct.” Section 71-147 does not, however, provide
that a single act of ordinary negligence may be grounds for
discipline. mahnke argues that if the Legislature intended ordi-
nary negligence to be actionable as a disciplinary action, the
Legislature would have included it in subsection (5). We agree
that the Legislature’s specific inclusion of “gross negligence”
and “a pattern of negligent conduct,” with no mention of ordi-
nary negligence, is telling. But we also consider § 71-148 to
determine whether the Legislature has shown a contrary intent
to include ordinary negligence within the meaning of unprofes-
sional conduct.
(b) A Single Act of Ordinary Negligence Does Not Come
Within the meaning of Unprofessional
Conduct Under § 71-148
We have decided that the general definition for unprofes-
sional conduct in the introductory paragraph of § 71-148 does
not encompass the single breach of a physician’s standard
of care.
Following the general definition, § 71-148 sets out a nonex-
clusive list of 21 acts that constitute unprofessional conduct. This
list further shows that the Legislature did not intend for a single
act of ordinary negligence to constitute unprofessional con-
duct. None of these 21 specific acts shows that the Legislature
intended for a single act of ordinary negligence in the general
treatment of patients to constitute unprofessional conduct. The
mAhNkE v. STATE 	67
Cite as 276 Neb. 57

acts do not include the breach of a physician’s standard of care
in treating patients generally.
We recognize that § 71-148(13) could be interpreted to include
as unprofessional conduct a physician’s breach of a standard of
care in treating a patient. That subsection defines unprofessional
conduct to include “[p]erformance by a physician of an abortion
. . . under circumstances when he or she will not be available
for . . . at least forty-eight hours for postoperative care unless
such postoperative care is delegated to and accepted by another
physician.” The Legislature added that subsection (originally
enumerated (11)) as an act constituting unprofessional conduct
in 1981.14 This was before the Legislature added the general def-
inition of unprofessional conduct in the introductory paragraph
of § 71-148 in 1993 and before it added “a pattern of negligent
conduct” to § 71-147(5) in 1994. Arguably, the Legislature
intended here to impose a statutory standard of care for the treat-
ment of patients seeking abortions, the breach of which would
allow the State to discipline the physician. But even under that
interpretation, the standard of care in § 71-148(13) would not
extend to the treatment of patients generally. Subsection (13)
is limited to the specific circumstance of postoperative care
following abortions.
The legislative history of § 71-148(13) supports this analysis.
During the committee hearing on L.B. 466,15 the bill that added
what is now subsection (13), the bill’s principal introducer
explained the bill’s purpose:
LB 466 gives us an opportunity to provide adequate post-
operative care for young gir[l]s and women who obtained
abortions. . . . We have a situation in this state of very
poor followup care for abortions which is medically inde-
fensible. To help remedy this situation, we as a group and
myself urge you to advance LB 466 . . . .16
One problem discussed during the committee hearing concerned
a doctor traveling to a town to perform abortions and then
14 See 1981 Neb. Laws, L.B. 466.
15 Id.
16 Public health and Welfare Committee hearing, L.B. 466, 87th Leg., 1st
Sess. 2-3 (Feb. 23, 1981).
68 	276 NEBRASkA REPORTS

leaving town at the end of the day without arranging for proper
followup care. The Legislature designed L.B. 466 to remedy
the concern that a patient could be left without access to post-
operative care should complications arise following an abortion.
Therefore, when the Legislature added the subsection at issue to
§ 71-148, it intended to create only a specific standard of care
for the treatment of patients seeking abortions. It did not enlarge
the Legislature’s previous concept of unprofessional conduct to
include single acts of ordinary negligence in treating patients
generally. Nor do we read any of the other subsections in
§ 71-148 as defining unprofessional conduct to include ordinary
negligence in the treatment of patients generally.
Thus, the 21 acts of unprofessional conduct under § 71-148
support the conclusion that the Legislature did not intend to
include a single act of ordinary negligence as a ground for
disciplinary action. Although § 71-148(22) includes as unpro-
fessional conduct “such other acts as may be defined in rules
and regulations,” those rules and regulations are confined to the
standards set out in §§ 71-147 and 71-148.
[8,9] We have held that it is a fundamental general prin-
ciple that the Legislature may not delegate legislative power
to an administrative or executive authority.17 An administrative
agency is limited in its rulemaking authority to powers granted
to the agency by the statutes the agency is to administer. The
agency may not employ its rulemaking power to modify, alter,
or enlarge portions of its enabling statute.18 We do not interpret
§ 71-148(22) as granting the Department authority to enact a
regulation defining unprofessional conduct to include single
acts of ordinary negligence in the treatment of patients gener-
ally. Allowing the State to discipline a physician for such acts
under § 013.18 would enlarge the provisions in §§ 71-147 and
71-148 and would be inconsistent with the authority granted
to the Department under the Uniform Licensing Law. We con-
clude that § 013.18 does not authorize the State to discipline a
17 Schumacher v. Johanns, 272 Neb. 346, 722 N.W.2d 37 (2006).
18 See, DLH, Inc. v. Nebraska Liquor Control Comm., 266 Neb. 361, 665
N.W.2d 629 (2003); County Cork v. Nebraska Liquor Control Comm., 250
Neb. 456, 550 N.W.2d 913 (1996).
mAhNkE v. STATE 	69
Cite as 276 Neb. 57

physician for a single act of ordinary negligence. Therefore, the
State may not discipline mahnke under § 013.18 for the alleg-
edly negligent act of using a dull curette rather than suction for a
second-trimester fetal demise. The State’s second unprofessional
conduct charge fails to state a ground for discipline.
VI. CONCLUSION
Although a physician’s single act of ordinary negligence can
lead to tragic consequences, the law must not turn on the facts
of a single case. The Legislature in §§ 71-147 and 71-148 has
concluded that a physician should not be subject to discipline
for a single act of ordinary negligence. Therefore, we conclude
that § 013.18 of the Department’s regulations is invalid to the
extent it can be interpreted to permit discipline for a single act
of ordinary negligence. The State has not alleged gross negli-
gence or a pattern of negligent conduct and may not discipline
mahnke for his single act of alleged ordinary negligence. Thus,
we affirm the district court’s reversal of the Department’s order
disciplining mahnke.
affiRmed .
city of omaha , nebRaska , a municipal coRpoRation , and
city of omaha mayoR michael fahey , appellees ,
v . city of elkhoRn , nebRaska , a municipal
coRpoRation , and fRateRnal oRdeR of
police lodGe no . 53, appellants .
city of omaha , nebRaska , a municipal coRpoRation , and
city of omaha mayoR michael fahey , appellees ,
v . city of elkhoRn , nebRaska , a municipal
coRpoRation , et al ., appellants .
752 N.W.2d 137
Filed July 11, 2008. 	Nos. S-07-174, S-07-263.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question does
not involve a factual dispute, determination of the issue is a matter of law, which
requires an appellate court to reach a conclusion independent from that of the
trial court.
70 	276 NEBRASkA REPORTS