Yoder v. Cotton

R andy l. yodeR and cheRyl yodeR, husband and wife ,
appellants , v. Joel t. cotton, m.d., appellee .
758 N.W.2d 630
Filed December 19, 2008. 	No. S-07-1337.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves questions of law independently of the trial court’s conclusions.
4. Negligence: Actions: States: Appeal and Error. In a personal injury action, the
question of whether to apply the law of the state where the injury occurred or the
law of another state is a question of law.
5. Jurisdiction: States. In answering any choice-of-law question, the court first
asks whether there is any real conflict between the laws of the states.
6. Negligence: Jurisdiction: States. In virtually all instances where the conduct
and the injury occur in the same state, that state has the dominant interest in
regulating that conduct.
7. Torts: Battery. the tort of battery requires actual infliction of unconsented injury
upon or unconsented contact with another.
8. Torts: Words and Phrases. Consent is willingness in fact for conduct to occur.
It may be manifested by action or inaction and need not be communicated to
the actor.
9. Torts: Intent: Words and Phrases. If words or conduct are reasonably under-
stood by another to be intended as consent, they constitute apparent consent and
are as effective as consent in fact.
10. Physician and Patient. A physician conducting an independent medical exam-
ination is performing a professional service.
11. Malpractice: Physician and Patient: Proof: Proximate Cause. to make a
prima facie case of medical malpractice, a plaintiff must show (1) the applicable
standard of care, (2) that the defendant deviated from that standard of care, and
(3) that this deviation was the proximate cause of the plaintiff’s harm.
12. Malpractice: Physicians and Surgeons: Affidavits: Proof. A self-supporting
affidavit from a defendant physician suffices to make a prima facie case that the
defendant did not commit malpractice.
13. Malpractice: Physicians and Surgeons: Expert Witnesses: Proof. In a medical
malpractice case, expert testimony is almost always required to prove causation.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J Russell deRR, Judge. Affirmed.
954 	276 NEBrASkA rEpOrtS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:53 AM CST

David A. Domina and Linda S. Christensen, of Domina Law
group, p.C., L.L.O., for appellants.
David J. Cripe, thomas J. Shomaker, and michael g.
monday, of Sodoro, Daly & Sodoro, for appellee.
heavican, 	c.J., 	wRiGht, 	connolly, 	stephan, 	and
mccoRmack , JJ.
heavican, c.J.
I. INtrODUCtION
randy L. yoder (yoder) and Cheryl yoder brought this claim
against Joel t. Cotton, m.D., alleging battery and negligence as
a result of an independent medical examination. Cotton filed a
motion for summary judgment. the trial court granted the sum-
mary judgment motion and applied Nebraska law. the yoders
claim that there were genuine issues of material fact and that
Iowa law should have applied. We affirm the decision of the
district court granting summary judgment to Cotton.
II. BACkgrOUND
yoder is an insurance adjuster and resident of Lincoln,
Nebraska. yoder sustained an on-the-job injury while work-
ing in Iowa. As a result of that injury, yoder filed a workers’
compensation claim in Iowa. As part of that claim, yoder was
required to undergo an independent medical examination (ImE)
by a physician of the employer’s choice. the physician chosen
was Cotton, a neurologist practicing in Omaha, Nebraska.
the undisputed facts indicate that yoder presented himself at
Cotton’s office for the ImE on march 21, 2005. At that time,
yoder informed Cotton that he had surgery on his right shoul-
der less than a month before and that Cotton should exercise
care during his examination of yoder. yoder also informed
Cotton that he had surgeries on the same shoulder in 1999,
2001, and June 2003. yoder claims that Cotton disregarded the
warning and manipulated yoder’s right shoulder in such a way
as to cause further, permanent injury. Cotton acknowledges that
yoder told him about the recent injury, but Cotton insists he did
not manipulate the shoulder in any way that would cause the
injury of which yoder complains.
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Cite as 276 Neb. 954

the yoders filed a claim against Cotton for battery and
negligence. the yoders argued that because there was no
physician-patient relationship, their claim cannot be defined
as a malpractice action and therefore is not governed by the
Nebraska Hospital-medical Liability Act or any other statutory
limitations on recoverable damages. the yoders also argued
that Iowa law should govern, because the circumstances requir-
ing yoder to undergo the ImE arose under the Iowa workers’
compensation law. Cotton contended that Nebraska law should
apply and filed a motion for summary judgment.
the district court determined that Nebraska law applied and
allowed discovery to proceed. After discovery was complete,
Cotton once again filed a motion for summary judgment. the
district court granted summary judgment on the negligence
claim because the yoders were unable to produce expert tes-
timony on the issue of medical negligence or causation. the
district court also granted summary judgment on the claim
of battery, finding that yoder had consented to the ImE and
therefore could not maintain a claim. the yoders appealed.
We moved this case to our docket pursuant to our authority to
regulate the dockets of this court and of the Nebraska Court
of Appeals.1
III. ASSIgNmENtS OF ErrOr
the yoders claim that the district court erred when it (1)
applied Nebraska law rather than Iowa law, (2) granted sum-
mary judgment on their claim for battery, and (3) granted sum-
mary judgment on their claim for negligence.
IV. StANDArD OF rEVIEW
[1] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue as
to any material fact or as to the ultimate inferences that may be
drawn from those facts and that the moving party is entitled to
judgment as a matter of law.2
1 See Neb. rev. Stat. § 24-1106 (reissue 1995).
2 Hughes v. Omaha Pub. Power Dist., 274 Neb. 13, 735 N.W.2d 793
(2007).
956 	276 NEBrASkA rEpOrtS

[2,3] In reviewing a summary judgment, an appellate court
views the evidence in a light most favorable to the party
against whom the judgment is granted and gives such party
the benefit of all reasonable inferences deducible from the
evidence.3 When reviewing questions of law, an appellate
court resolves questions of law independently of the trial
court’s conclusions.4
V. ANALySIS
1. choice of law in peRsonal inJuRy action
[4,5] the yoders first argue that Iowa law should have
applied in this case and that the district court erred when it
applied Nebraska law. In a personal injury action, the ques-
tion of whether to apply the law of the state where the injury
occurred or the law of another state is a question of law.5 In
answering any choice-of-law question, the court first asks
whether there is any real conflict between the laws of the
states.6 At oral argument, the yoders essentially admitted that
there is no difference between Iowa law and Nebraska law as it
pertains to battery and negligence. We note that while Iowa law
would allow the yoders to collect punitive damages unavailable
in Nebraska, no other substantial differences exist.7
Even if substantial differences did exist, however, Nebraska
law would still apply. the restatement (Second) of Conflict of
Laws § 1468 states that “[i]n an action for a personal injury,
the local law of the state where the injury occurred determines
the rights and liabilities of the parties, unless, with respect to
3 Id.
4 See Eggers v. Rittscher, 247 Neb. 648, 529 N.W.2d 741 (1995).
5 Malena v. Marriott International, 264 Neb. 759, 651 N.W.2d 850 (2002).
6 See Johnson v. United States Fidelity & Guar. Co., 269 Neb. 731, 696
N.W.2d 431 (2005).
7 See, e.g., Yates v. Iowa West Racing Ass’n, 721 N.W.2d 762 (Iowa 2006);
Bradshaw v. Iowa Methodist Hospital, 251 Iowa 375, 101 N.W.2d 167
(1960).
8 restatement (Second) of Conflict of Laws § 146 at 430 (1971). Accord
Malena, supra note 5.
yODEr v. COttON 	957
Cite as 276 Neb. 954

the particular issue, some other state has a more significant
relationship . . . .”
[6] We have recently applied § 146. We noted that “‘in vir-
tually all instances where the conduct and the injury occur in
the same state, that state has the dominant interest in regulating
that conduct.’”9 We went on to explain that every state has an
interest in compensating its domiciliaries for their injuries.10
In this particular case, both the yoders and Cotton are
residents of Nebraska. the ImE took place in Nebraska. the
yoders have given no reason to apply Iowa law other than
arguing that yoder was ordered to undergo the ImE because
of his Iowa workers’ compensation claim. We therefore apply
Nebraska law to the yoders’ claims.
2. summaRy JudGment on batteRy claim
the yoders next argue that the district court erred when
it granted Cotton summary judgment on their claim of bat-
tery. the yoders claim that yoder’s consent was ineffective
because he was required to undergo the ImE in order to
pursue his workers’ compensation claim. Alternatively, the
yoders argue that Cotton’s actions went beyond the scope of
yoder’s consent.
[7-9] the tort of battery requires actual infliction of uncon-
sented injury upon or unconsented contact with another.11 the
restatement (Second) of torts § 89212 states that “[c]onsent is
willingness in fact for conduct to occur. It may be manifested
by action or inaction and need not be communicated to the
actor.” And, “[i]f words or conduct are reasonably understood
by another to be intended as consent, they constitute apparent
consent and are as effective as consent in fact.”13
Battery committed by a physician has been distinguished
from claims of medical malpractice. Courts have generally
9 Malena, supra note 5, 264 Neb. at 769, 651 N.W.2d at 858.
10 Id.
11 Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).
12 restatement (Second) of torts § 892 at 362 (1979). Accord Reavis, supra
note 11.
13 Id.
958 	276 NEBrASkA rEpOrtS

noted that a claim for battery arises out of an action which
“‘depends on neither professional judgment nor the physician’s
surgical skill.’”14 Battery actions in the medical context have
been limited to situations where the physician did not gain
consent for his or her actions or greatly exceeded the scope of
that consent, e.g., operating on the wrong limb.15 In all cases,
consent to a procedure defeated a battery claim.
In Nebraska, battery cases against physicians have been
largely limited to claims of sexual assault.16 However, in Jones
v. Malloy,17 we found that a patient’s consent to chiropractic
services defeated her battery claim against the physician, even
though the physician acted outside the explicit scope of her
consent. In that case, the patient had asked the chiropractor
not to work on her lower back and had even refused him per-
mission to x-ray her lower back.18 the patient alleged that the
chiropractor disregarded her explicit instructions and that by
adjusting her lower back, he committed a battery on her.19
We held that “[a]s a practical matter, health profession-
als cannot be required to obtain express consent before each
touch or test they perform on a patient.”20 We further stated
that “implied consent may be inferred from the patient’s action
of seeking treatment or some other act manifesting a willing-
ness to submit to a particular course of treatment.”21 Questions
of whether a physician overstepped his or her bounds of the
patient’s initial consent by failing to inform the patient of the
14 Andrew v. Begley, 203 S.W.3d 165, 171 (ky. App. 2006).
15 See, e.g., Unruh-Haxton v. Regents of Univ. of Cal., 162 Cal. App. 4th 343,
76 Cal. rptr. 3d 146 (2008); Saxena v. Goffney, 159 Cal. App. 4th 316,
71 Cal. rptr. 3d 469 (2008); Andrew, supra note 14; Linog v. Yampolsky,
376 S.C. 182, 656 S.E.2d 355 (2008); Godbee v. Dimick, 213 S.W.3d 865
(tenn. App. 2006); Haynes v. Beceiro, 219 S.W.3d 24 (tex. App. 2006).
16 See, Kant v. Altayar, 270 Neb. 501, 704 N.W.2d 537 (2005); Reavis, supra
note 11.
17 Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).
18 Id.
19 Id.
20 Id. at 564, 412 N.W.2d at 841.
21 Id.
yODEr v. COttON 	959
Cite as 276 Neb. 954

risks of treatment is an issue of negligence properly addressed
under a medical malpractice claim.22
yoder gave implicit consent when he arrived at Cotton’s
office to undergo the ImE. yoder cooperated with Cotton’s
directions during the course of the examination and gave no
indication that he was not giving his consent. In his deposition,
yoder testified that he tape recorded his visit, and a transcript
of the tape was included in the record. Although much of the
tape is indistinguishable, there is no indication that yoder
ever refused to give consent or that he asked Cotton to stop
the examination. yoder’s argument that his consent was inef-
fective because he was required to attend the examination is
unpersuasive.
We also find Andrew v. Begley23 instructive. In that case,
plaintiff was required to undergo a physical examination as
part of her regularly scheduled review of disability benefits.
plaintiff claimed the physician punctured her skin during the
sensory examination, tore her rotator cuff while testing range
of motion in her arm, and caused further injury to her back
and legs. plaintiff then filed claims for negligence and battery.
the battery claim was dismissed, because plaintiff could not
show that she did not give consent or that she had withdrawn
her consent.24
the court’s analysis in Andrew addressed what constituted
consent and stated that “where as in these circumstances, a
physician is conducting an examination with express or implied
consent, a plaintiff must prove that she withdrew her con-
sent.”25 In a medical examination context, a court must first ask
whether a party used language that unequivocally revoked his
or her consent and was subject to no other reasonable interpre-
tation. Second, a court must ask whether stopping the treatment
or examination was medically feasible.26
22 Id.
23 Andrew, supra note 14.
24 Id.
25 Id. at 172.
26 Id.
960 	276 NEBrASkA rEpOrtS

the plaintiff in Andrew made no statement during the exam-
ination that could be interpreted as a request to stop, although
she did protest that certain movements hurt. the court in that
case stated that “[p]rotestations by a plaintiff of pain and dis-
comfort . . . are not enough to meet the first prong of the test
for effective withdrawal.”27 Without proof that she did not con-
sent, or that she had unequivocally withdrawn her consent, the
plaintiff could not pursue her battery claim.
As in Andrew, yoder was required to undergo an ImE and
he complied with the requirement. Like the plaintiff in Andrew,
yoder stated that he felt some pain but he never asked Cotton
to stop the examination. We find that yoder implicitly con-
sented to the ImE. Whether Cotton acted beyond the scope of
that consent is an issue of informed consent, a matter properly
addressed in a medical malpractice claim, which we discuss
below. therefore, the district court did not err in granting sum-
mary judgment to Cotton on the battery claim.
3. summaRy JudGment on neGliGence claim
[10] the yoders finally argue that the district court erred
in granting summary judgment on their negligence claim.
Although Nebraska has not yet addressed the standard of care a
physician owes someone undergoing an ImE, we conclude that
a physician conducting an ImE is performing a professional
service. Our law requires a plaintiff to present expert testimony
of causation in a medical malpractice case in order to over-
come summary judgment, and yoder failed to do so.
the yoders claim that their action sounds in ordinary neg-
ligence and that therefore, they were not required to present
expert testimony as to causation. the yoders also argue that
they presented sufficient evidence to present genuine issues of
material fact. We disagree for the following reasons.
(a) Standard of Care in ImE
[11] the yoders argue that this is not a medical malpractice
case and that a general standard of care should apply. Because
we hold that Cotton was rendering professional services, we
27 Id.
yODEr v. COttON 	961
Cite as 276 Neb. 954

apply the requirements to establish a medical malpractice case
to a physician performing an ImE. to make a prima facie case
of medical malpractice, a plaintiff must show (1) the applicable
standard of care, (2) that the defendant deviated from that
standard of care, and (3) that this deviation was the proximate
cause of the plaintiff’s harm.28
In Cotton’s deposition, he stated that he felt he owed yoder
a professional duty in regard to the ImE. When asked about
that duty, Cotton replied, “I owe him the duty to be truthful,
to do a comprehensive evaluation to the degree that I’m able
to make a diagnosis, and had I felt that he had suffered any
additional injury, I would have taken it upon myself to have
that addressed immediately.” the record contains a copy of
an opinion by the American medical Association’s Counsel
on Judicial and Ethical Affairs entitled “patient-physician
relationship in the Context of Work-related and Independent
medical Examinations.” the opinion states that “a limited
patient-physician relationship should be considered to exist
during isolated assessments of an individual’s health or disabil-
ity for an employer, business, or insurer.”29
the yoders 	cite 	several 	cases 	from 	other 	jurisdictions
addressing the duty owed by a physician performing an ImE
and for the proposition that expert testimony is not required
to establish the standard of care.30 However, only one of those
cases supports the yoders’ position that an injury sustained
during an ImE sounds in ordinary negligence rather than medi-
cal malpractice.31
In fact, in Dyer v. Trachtman,32 a case the yoders cite as sup-
porting their contention that expert testimony is not required to
establish breach of the standard of care, the michigan Supreme
Court 	specifically 	found 	that 	a 	limited 	physician-patient
28 Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008).
29 See, e.g., Andrew, supra note 14.
30 Smith v. Welch, 265 kan. 868, 967 p.2d 727 (1998); Dyer v. Trachtman,
470 mich. 45, 679 N.W.2d 311 (2004); Webb v. T.D., 287 mont. 68, 951
p.2d 1008 (1997); Ramirez v. Carreras, 10 S.W.3d 757 (tex. App. 2000).
31 Ramirez, supra note 30.
32 Dyer, supra note 30.
962 	276 NEBrASkA rEpOrtS

relationship exists for the purposes of an ImE. the court
pointed out that statutes governing medical malpractice were
designed to protect physicians and that to allow physicians
performing ImE’s to be held to ordinary negligence standards
would result in those physicians being unwilling to perform
ImE’s or serve as experts.33 the michigan Supreme Court
found that a majority of courts recognized that an ImE did not
create an ordinary physician-patient relationship, but that there
was a limited duty that reflects the standards set out by the
American medical Association.34
While the yoders are correct in stating that Cotton had a duty
not to harm, the relationship between a physician performing
an ImE and an examinee is that of a limited physician-patient
relationship. We need not address whether the yoders were
required to present expert testimony regarding Cotton’s alleged
breach of the standard of care, because the yoders failed to
present expert testimony on proximate cause.
(b) proof of proximate Cause
[12] the record clearly demonstrates that the yoders did not
provide sufficient evidence of proximate cause to survive sum-
mary judgment. Our law is clear that a self-supporting affidavit
from a defendant physician suffices to make a prima facie case
that the defendant did not commit malpractice.35 Cotton affirm-
atively alleged that he did not breach the standard of care of
a physician, that nothing he did harmed yoder, and that his
actions were not the proximate cause of yoder’s injury.
[13] In a medical malpractice case, expert testimony is almost
always required to prove causation.36 Although an exception
exists for matters where a layperson can infer negligence when
causation is plain, such is not the case here. the yoders allege
that Cotton’s actions tore the labrum in yoder’s right shoulder.
yoder had previously injured his shoulder and had undergone
multiple surgeries when Cotton examined him, and it is not at
33 Id.
34 Id.
35 Thone, supra note 28.
36 Id.
yODEr v. COttON 	963
Cite as 276 Neb. 954

all clear that Cotton’s actions caused yoder’s current problems.
Furthermore, there is insufficient evidence in the record that
Cotton’s examination could have caused yoder’s injury, as was
noted by the only expert the yoders deposed.
Dr. Daniel p. Slawski, the expert deposed, stated that he
would not provide expert testimony at trial. When asked his
opinion on what caused the tear in yoder’s labrum, Slawski
stated that “[i]t would be extremely difficult to determine
exactly the cause. Especially when we see patients after sur-
gery or two surgeries and episodes, we have to go strictly by
the patient’s history.” Slawski stated that he could not deter-
mine from his examination whether yoder’s injury was caused
by a one-time trauma or repetitive movements over a long
period of time. Slawski went on to say that he could not deter-
mine whether the labrum was torn prior to the ImE, because
that part of the joint was never visualized before surgery, nor
was it operated on during the surgery.
In essence, the only evidence that the yoders offered regard-
ing causation was yoder’s own statement that his shoulder did
not hurt prior to the examination and that it did hurt following
the examination. the yoders’ only other evidence regarding
causation was Slawski’s equivocal statement that he could
not rule out the possibility that Cotton had caused the injury.
Such was insufficient to rebut Cotton’s affidavit stating that his
actions were not the cause of yoder’s injury. For that reason,
we find that the district court did not err when it granted sum-
mary judgment on the yoders’ negligence claim, because there
was no genuine issue of material fact.
VI. CONCLUSION
In a personal tort case, we apply the law of the state where
the injury took place, and so we find that the district court was
correct in applying Nebraska law. We also find that the district
court did not err in granting summary judgment in favor of
Cotton on the battery and negligence claims. yoder implicitly
consented to the ImE, and whether Cotton acted beyond the
scope of that consent is an issue of informed consent, a matter
properly addressed in a medical malpractice claim. In regard
to medical malpractice, the yoders failed to present expert
964 	276 NEBrASkA rEpOrtS

testimony on the issue of causation, which testimony was
required to overcome summary judgment. We therefore affirm
the decision of the district court.
affiRmed.
G eRRaRd and milleR-leRman, JJ., not participating.
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Cite as 276 Neb. 954