Murray v. UNMC Physicians

occupation tax authorized by L.B. 701 violates the constitu-
tional prohibition against commutation.
V. CONCLUSION
For the reasons discussed, we conclude that the landowners
have not overcome the presumption of constitutionality with
respect to the challenged statutes, and we therefore affirm the
judgment of the district court.
A ffirmed.
C onnolly, J., not participating.
robert murrAy, SpeCiAl A dminiStrAtor of the eStAte of
mAry K. murrAy, And robert murrAy, individuAlly,
AppelleeS, v. unmC phySiCiAnS, formerly Known
AS univerSity mediCAl ASSoCiAteS,
A CorporAtion, AppellAnt.
806 N.W.2d 118
Filed September 16, 2011. 	No. S-10-455.
1. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
2. Motions for New Trial. The discretion of a trial court in ruling on a motion for
new trial is only the power to apply the statutes and legal principles to all facts of
the case; a new trial may be granted only where legal cause exists.
3. Negligence: Evidence: Tort-feasors. While the identification of the applicable
standard of care is a question of law, the ultimate determination of whether a
party deviated from the standard of care and was therefore negligent is a question
of fact. To resolve the issue, a finder of fact must determine what conduct the
standard of care would require under the particular circumstances presented by
the evidence and whether the conduct of the alleged tort-feasor conformed with
that standard.
Appeal from the District Court for Douglas County: JAmeS
t. G leASon, Judge. Reversed.
Jeffrey A. Nix, Thomas J. Shomaker, and Mary M. Schott, of
Sodoro, Daly & Sodoro, P.C., for appellant.
Christopher P. Welsh and James R. Welsh, of Welsh &
Welsh, P.C., L.L.O., for appellees.
260 	282 NeBRASkA RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

heAviCAn, 	C.J., 	C onnolly, 	G errArd, 	mCC ormACK, 	and
miller-lermAn, JJ.
G errArd, J.
This case involves a failure to provide medical treatment.
The treatment at issue is a very expensive drug that must be
administered indefinitely. But it also may cause serious and
even deadly symptoms if its administration is interrupted. In
this case, the patient’s treating physicians, wary of those health
risks, decided not to administer the drug until the patient’s
insurer approved it or another source of payment could be
found. But, regrettably, the patient died before either happened.
The question presented in this appeal is whether under such
circumstances, an expert medical witness is permitted to opine
that under the customary standard of care, a physician should
consider the health risks to a patient who may be unable to
pay for continued treatment. We conclude that such testimony
is admissible and, therefore, reverse the district court’s order
granting a new trial.
BACkgROUND
This is a medical malpractice case in which Robert Murray,
individually and as special administrator of the estate of his
wife, Mary k. Murray, alleges that the defendants caused the
death of Mary by negligently failing to administer Flolan ther-
apy to treat her pulmonary arterial hypertension. The defend-
ants were the Nebraska Medical Center, the Board of Regents
of the University of Nebraska, UNMC Physicians (UNMC),
and several associated individual employees, although UNMC
was the only defendant remaining by the time of trial.
Pulmonary arterial hypertension is a chronic medical condi-
tion in which the blood vessels in the lungs constrict, and the
resulting pressure on the heart leads to heart failure. Flolan
is a vasodilator that relaxes blood vessels and prevents blood
clotting. It is administered by a pump, connected to a port and
catheter usually inserted above the collarbone. Flolan is very
expensive and shortacting, so patients on Flolan treatment
need a constant supply of the drug, because if its administra-
tion stops, pulmonary blood pressure rebounds and can be life
MURRAy v. UNMC PhySICIANS 	261
Cite as 282 Neb. 260

threatening. And because Flolan is a chronic treatment, patients
who begin Flolan need to remain on it, essentially, for the rest
of their lives—it must be administered 24 hours a day and
costs approximately $100,000 a year. The parties do not seem
to disagree that generally, Flolan therapy is the appropriate
course of treatment for chronic pulmonary arterial hyperten-
sion. Nor do the parties seem to dispute that there are signifi-
cant and potentially deadly risks associated with interrupting
Flolan treatment.1
The course of treatment relevant to this case began in late
June 2006, as Mary’s treating physician, Austin Thompson,
M.D., was preparing to treat Mary’s pulmonary arterial hyper-
tension with Flolan. On June 29, Mary underwent a heart cath-
eterization to confirm her diagnosis and eligibility for Flolan;
in fact, Thompson had already written the Flolan order before
the catheterization, pending the results of the catheterization
and insurance approval. The catheterization showed pulmonary
arterial hypertension, significant heart failure, and reduced
blood flow.
On July 4, 2006, Mary reported to the medical center with
swollen legs and fluid around her heart. She was given diuret-
ics and hospitalized until July 8. She was discharged and was
supposed to begin Flolan after port placement the following
week. But on July 10, she reported to the emergency room
with a rapid heartbeat and shortness of breath. She began to
seize, then her heartbeat stopped, and medical efforts failed to
resuscitate her.
At trial, the parties disputed both the cause of Mary’s death
and whether UNMC had breached the standard of care. Robert
presented expert medical testimony that the proximate cause
of Mary’s death was pulmonary arterial hypertension. UNMC,
on the other hand, presented expert medical testimony that
myocarditis, an inflammation of the heart usually caused by
viral or bacterial infection, was a contributing factor to Mary’s
death—a conclusion with which Robert’s experts disagreed.
And Robert presented expert medical testimony that immediate
Flolan administration, even a day or two before Mary’s death,
1 See Physicians’ Desk Reference 1181-82 (54th ed. 2000).
262 	282 NeBRASkA RePORTS

would have prevented her death; UNMC, on the other hand,
presented expert medical testimony that Flolan would have
made no difference.
Specifically, Robert’s experts testified that Mary’s pulmo-
nary arterial hypertension was acute by June 29, 2006, based
on the results of her heart catheterization, and that Flolan can
be administered as an emergent treatment for acute pulmonary
arterial hypertension. Robert adduced expert medical testimony
that UNMC’s treatment of Mary fell below the relevant stan-
dard of care after June 29, because the medical center should
have paid for and provided Flolan by July 4 or 5—in other
words, that the standard of care for a patient as sick as Mary
was to start Flolan and obtain insurance approval afterward.
UNMC’s witnesses, on the other hand, testified that Flolan
was not effective as an emergent treatment, because it did not
work immediately. And they testified that their practice was to
wait for insurance approval before beginning Flolan, because
most patients are not able to pay for the drug without insur-
ance and it can be more dangerous if treatment is started and
then stopped.
The UNMC attending physician during Mary’s July 2006
hospitalization, James Murphy, M.D., explained that because
Flolan treatment can last for years and require hundreds of
thousands of dollars, it was important to make sure the treat-
ment was sustainable before commencing. Thompson testi-
fied to “horror stories” about patients who had been forced to
discontinue treatment, and he said it would be “irresponsible”
not to have lifelong financial support for the drug, because it
could be “devastating” if discontinued. Thompson said that
the standard of care required such a process. And another of
UNMC’s experts, William Johnson, M.D., explained that the
standard of care required finding some source of payment for
a patient, but that if insurance was unavailable, it was still
usually possible to find some other payment on a “compas-
sionate need basis” within the 12-week timeframe that Johnson
opined was appropriate for treatment of chronic pulmonary
arterial hypertension.
Robert moved for a directed verdict on the standard of care,
arguing that as a matter of law, insurance coverage cannot
MURRAy v. UNMC PhySICIANS 	263
Cite as 282 Neb. 260

dictate what doctors do. UNMC replied that according to its
experts, a continuing source for treatment is something that
doctors should consider in determining how treatment is to
be administered. Robert’s motion was overruled. Robert also
asked that the jury be instructed that if the standard of care
requires prescription of a drug, it is not a defense to a claim the
standard of care has been violated that the drug would not be
provided until approved by an insurance carrier. That instruc-
tion was refused.
The jury returned a general verdict for UNMC. But Robert
filed a motion for new trial that the district court granted. The
court explained:
The evidence offered by [Robert’s] expert on the issue
of standard of care indicated that after the confirmation
of [pulmonary arterial hypertension] by a right heart
catheterization, the standard of care required the com-
mencement of FLOLAN therapy. The evidence offered by
[UNMC’s] expert was basically the same with one major
difference. [UNMC’s] expert opined that the standard of
care required the commencement of FLOLAN therapy
after payment approval by the patient’s insurance carrier.
On cross-examination, [UNMC’s] expert conceded that
if no outside funds were available to subsidize the treat-
ment to a patient who needed it, then treatment would be
provided on a “humanitarian” basis. The substance of this
concession was that the treatment was required by the
standard of care regardless of how it was to be paid for.
This Court is of the opinion that, as a matter of law, a
medical standard of care cannot be tied to or controlled
by an insurance company or the need for payment. The
“bean counters” in an insurance office are not physicians.
Medicine cannot reach the point where an insurance
company determines the medical standard of care for
the treatment of a patient. Nor, can we live in a society
where the medical care required is not controlled by the
physicians treating the patient. The position advanced by
[UNMC’s] expert tells us that the standard of care is dif-
ferent for those with money than for those without. This
is neither moral nor just. It is wrong.
264 	282 NeBRASkA RePORTS

This Court cannot determine the basis upon which the
jury found in favor of [UNMC]. It could have been on
the standard of care issue and it could have been on the
causation issue. This Court erred in not directing the jury
that the standard of care had not been met by [UNMC].
This error taints the entire verdict of the jury and requires
a new trial.
UNMC appeals from the order granting Robert’s motion for
new trial.2
ASSIgNMeNT OF eRROR
UNMC assigns that the court erred in granting Robert’s
motion for new trial.
STANDARD OF ReVIeW
[1,2] A motion for new trial is addressed to the discretion of
the trial court, whose decision will be upheld in the absence of
an abuse of that discretion.3 But the discretion of a trial court in
ruling on a motion for new trial is only the power to apply the
statutes and legal principles to all facts of the case; a new trial
may be granted only where legal cause exists.4
ANALySIS
It is important, from the outset, to carefully note what
issues this appeal does not present. This appeal arises against a
backdrop of increasing concern about the costs of health care,
among health care providers, insurers, government officials,
and consumers. That concern has prompted a great deal of
discussion, among commentators and in the public arena, about
what should be done to control health care costs or to allocate
potentially limited resources. As we will explain below, the
question presented in this appeal is narrow and does not require
us to address the more sweeping issues that are the subject
of greater public policy debate. But some discussion of the
broader picture will help us clarify what this case is about—or,
more precisely, what it is not about.
2 See Neb. Rev. Stat. § 25-1315.03 (Reissue 2008).
3 Robinson v. Dustrol, Inc., 281 Neb. 45, 793 N.W.2d 338 (2011).
4 Kant v. Altayar, 270 Neb. 501, 704 N.W.2d 537 (2005).
MURRAy v. UNMC PhySICIANS 	265
Cite as 282 Neb. 260

In Nebraska, in cases arising (like this one) under the
Nebraska hospital-Medical Liability Act,5 the standard of rea-
sonable and ordinary care is defined as “that which health
care providers, in the same community or in similar communi-
ties and engaged in the same or similar lines of work, would
ordinarily exercise and devote to the benefit of their patients
under like circumstances.”6 That standard is consistent with the
general common-law rule and is a so-called unitary, or wealth-
blind, standard of care.7 In other words, the standard of care is
found in the customary practices prevailing among reasonable
and prudent physicians and must not be compromised simply
because the patient cannot afford to pay.8 That standard of care,
however, developed in a world of fee-for-service medicine and
persisted while health insurance still primarily provided first-
dollar unlimited coverage.9 Today,
[h]ealth plans and self-insured corporations are placing
increasingly stringent controls on health care resources,
thereby limiting physicians’ freedom to practice medi-
cine as they see fit. Clinical guidelines have proliferated
from a wide variety of sources: managed care organiza-
tions, medical subspecialty societies, malpractice insur-
ers, entrepreneurial guideline-writing firms, and others.
each guideline purports to tell physicians the best way
to practice. yet often they conflict with each other,
with 	traditional 	practice 	patterns, 	and 	with 	patients’
expectations.10
But “[b]ecause tort law expects physicians to provide the
same standard of care regardless of patients’ ability to pay,
5 See Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010).
6 § 44-2810.
7 See e. haavi Morreim, Cost Containment and the Standard of Medical
Care, 75 Cal. L. Rev. 1719 (1987).
8 See id. See, also, John A. Siliciano, Wealth, Equity, and the Unitary
Medical Malpractice Standard, 77 Va. L. Rev. 439 (1991).
9 See e. haavi Morreim, Stratified Scarcity: Redefining the Standard of
Care, 17 L. Med. & health Care 356 (1989).
10 e. haavi Morreim, Medicine Meets Resource Limits: Restructuring the
Legal Standard of Care, 59 U. Pitt. L. Rev. 1, 5 (1997).
266 	282 NeBRASkA RePORTS

and because this standard sometimes encompasses costly tech-
nologies no longer readily available for the poorest citizens,”
physicians are “caught in a bind between legal expectations
and economic realities.”11 Courts have been accused of being
“oblivious to the costs of care, essentially requiring physi-
cians to commandeer resources that may belong to other par-
ties, regardless of whether those other parties owe the patient
these resources.”12
It has been suggested that at a fundamental level, a unitary,
wealth-blind standard of care cannot be reconciled with the
growth of technology and the stratification of available health
care. Custom is increasingly difficult to identify in today’s
medical marketplace, as resource distinctions produce frag-
mentation and disintegration.13 It has also been suggested that
maintaining a unitary standard of care disadvantages those who
may not be able to pay for health care. Physicians remain free,
for the most part, to decline to treat those who cannot pay, and
“an outright refusal to treat an indigent patient, in contrast to
a decision to treat in a manner inconsistent with the unitary
malpractice standard, rarely creates the threat of liability.”14 So,
it has been argued that rather than assume the burden of paying
for a patient’s treatment, or the potential liability of providing
some but not all possible care, the unitary standard makes it
more likely that “providers will now sidestep the entire prob-
lem simply by refusing to accept some, or all, of such patients
for treatment.”15
On the other hand, it has been argued that permitting physi-
cians to make medical decisions based on resource scarcity
would compromise the fiduciary relationship between patient
and physician, creating a conflict of interest because the
11 Id. at 4-5.
12 Id. at 4.
13 See James A. henderson, Jr. & John A. Siliciano, Universal Health
Care and the Continued Reliance on Custom in Determining Medical
Malpractice, 79 Cornell L. Rev. 1382 (1994).
14 Siliciano, supra note 8 at 457.
15 Id.
MURRAy v. UNMC PhySICIANS 	267
Cite as 282 Neb. 260

patient’s well-being would no longer be the physician’s focus.16
The question is how the value judgments inherent in the devel-
opment of the standard of care might evolve in response to a
societal interest in controlling health care costs.17 It has been
explained that a physician’s initial value judgment, in treating
a patient,
is made in light of conclusions reached about the likely
benefits that services would have had for the plaintiff
patient. It involves an evaluation as to whether the serv-
ices should have been provided given their likely benefits,
the risk of iatrogenic harm, and the gravity of the problem
experienced by the patient. Normally the value judgment
does not involve an explicit consideration of the costs of
caring for a patient, although economics are implicitly
considered. Physicians do not do everything conceivably
possible in caring for a patient—they draw what they
consider to be reasonable boundary lines. For example,
physicians do not order every diagnostic test available
for a patient that requests a physical examination, even
though doing so might reveal interesting information.
Instead, they order tests which are indicated given the age
and physical characteristics of the patient.18
A physician’s initial value judgment, in other words, is con-
strained by reason but does not include a societal interest in
conserving costs or resources, and certainly does not include
weighing the physician’s own economic interests.19
In short, the traditional ethical norms of the medical profes-
sion and the legal demands of the customary standard of care
impose significant restrictions on a physician’s ability to con-
sider the costs of treatment, despite significant and increasing
16 See, Maxwell J. Mehlman, The Patient-Physician Relationship in an Era of
Scarce Resources: Is There a Duty to Treat?, 25 Conn. L. Rev. 349 (1993);
edward B. hirshfeld, Should Ethical and Legal Standards for Physicians
Be Changed to Accommodate New Models for Rationing Health Care?,
140 U. Pa. L. Rev. 1809 (1992).
17 hirshfeld, supra note 16.
18 Id. at 1835.
19 See id. See, also, Morreim, supra note 10.
268 	282 NeBRASkA RePORTS

pressure to contain those costs. Whether the legal standard of
care should change to alleviate that conflict, and how it might
change, has been the subject of considerable discussion. It
has been suggested that the customary standard of care could
evolve to permit the denial of marginally beneficial treat-
ment—in other words, when high costs would not be justified
by minor expected benefits.20 Others have suggested that the
standard of care should evolve to consider two separate com-
ponents: (1) a skill component, addressing the skill with which
diagnoses are made and treatment is rendered, that would not
vary by a patient’s financial circumstances and (2) a resource
component, addressing deliberate decisions about how much
treatment to give a patient, that would vary so as to not demand
more of physicians than is reasonable.21 It has been suggested
that physicians should be permitted to rebut the presumption
of a unitary standard of care when diminution of care arises
by economic necessity instead of negligence.22 And many have
suggested that custom should no longer be the benchmark for
the standard of care;23 instead, practice standards or guidelines
could be promulgated that would settle issues of resource
allocation.24
All of the concerns discussed above are serious, and they
present difficult questions that courts will be required to con-
front in the future. But we do not confront them here, because
under the unique facts of this case, they are not presented.
Contrary to the district court’s belief, this is not a case in
20 See Mark A. hall, Rationing Health Care at the Bedside, 69 N.y.U. L.
Rev. 693 (1994).
21 See, Mark A. hall, Paying for What You Get and Getting What You Pay
For: Legal Responses to Consumer-Driven Health Care, 69 Law &
Contemp. Probs. 159 (2006); Morreim, supra note 10; Morreim, supra
note 9.
22 Morreim, supra note 7.
23 See Morreim, supra note 10.
24 See, Daniel W. Shuman, The Standard of Care in Medical Malpractice
Claims, Clinical Practice Guidelines, and Managed Care: Towards a
Therapeutic Harmony?, 34 Cal. W. L. Rev. 99 (1997); hirshfeld, supra
note 16; Peter h. Schuck, Malpractice Liability and the Rationing of Care,
59 Tex. L. Rev. 1421 (1981). But see Siliciano, supra note 8.
MURRAy v. UNMC PhySICIANS 	269
Cite as 282 Neb. 260

which insurance company “bean counters” overrode the medi-
cal judgment of a patient’s physicians25 or in which those phy-
sicians allowed their medical judgment to be subordinated to
a patient’s ability to pay for treatment.26 Nor is this a case in
which the parties disputed the cost-effectiveness of the treat-
ment at issue.27 Rather, UNMC’s evidence was that its decision
to wait to begin Flolan treatment was not economic—it was
a medical decision, based on the health consequences to the
patient if the treatment is interrupted.
[3] Whether a medical standard of care can appropriately be
premised on such a consideration is a matter of first impression
in Nebraska, and the parties have not directed us to (nor are we
aware of) any other authority speaking directly to that issue.
But as a general matter, we have said that while the identifica-
tion of the applicable standard of care is a question of law, the
ultimate determination of whether a party deviated from the
standard of care and was therefore negligent is a question of
fact.28 And it is for the finder of fact to resolve that issue by
determining what conduct the standard of care would require
under the particular circumstances presented by the evidence
and whether the conduct of the alleged tort-feasor conformed
with that standard.29
Malpractice, as alluded to above, is defined as a health care
provider’s failure to use the ordinary and reasonable care,
skill, and knowledge ordinarily possessed and used under like
circumstances by members of his or her profession engaged
in a similar practice in his or her or in similar localities.30 The
district court granted a new trial based on its conclusion that
UNMC’s expert testimony was inconsistent with the standard
of care. So the question is whether, as a matter of law, UNMC’s
25 Compare Long v. Great West Life & Annuity Ins., 957 P.2d 823 (Wyo.
1998).
26 Compare Wickline v. State, 192 Cal. App. 3d 1630, 239 Cal. Rptr. 810
(1986).
27 Compare Helling v. Carey, 83 Wash. 2d 514, 519 P.2d 981 (1974).
28 Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).
29 Id.
30 § 44-2810.
270 	282 NeBRASkA RePORTS

expert opinion testimony was inconsistent with the standard of
care as defined above.
The district court determined that it was. But the district
court’s reasoning was erroneous in three respects. First, the
district court understood Johnson’s testimony to concede that
“if no outside funds were available to subsidize the treatment
to a patient who needed it, then treatment would be provided
on a ‘humanitarian’ basis.” The “substance of this concession,”
the court reasoned, “was that the treatment was required by the
standard of care regardless of how it was to be paid for.”
But that is not exactly what Johnson said. The import of
Johnson’s testimony, as revealed by the record, was that if a
patient was unable to obtain insurance coverage for Flolan, it
was Johnson’s practice to try to work with the patient to find
another way for the patient to get the drug on a “compassion-
ate need” basis. Johnson’s testimony in that regard was about
his practice, not the general standard of care. Nor did Johnson
testify that the drug would be started regardless—he simply
said that if insurance was unavailable, he would try to find
another way for the patient to obtain the medication. Nothing
in Johnson’s testimony is contrary to his basic opinion that the
standard of care requires a doctor to make sure that a payment
source is in place before beginning Flolan treatment, because
of the risks associated with interruption of treatment.
Second, the customary standard of care in this case is
defined by statute, and it is not a court’s place to contradict the
Legislature on a matter of public policy.31 UNMC’s witnesses
testified that UNMC’s treatment of Mary was consistent with
the statutory standard of care—in other words, that health care
providers in the same community or in similar communities and
engaged in the same or similar lines of work would ordinarily
defer Flolan treatment until payment for a continuous supply
had been secured. We cannot depart from the customary stan-
dard of care on policy grounds, even if it is subject to criticism,
because the standard of care is defined by statute and public
policy is declared by the Legislature.32 Robert was, of course,
31 See Wilke, supra note 28.
32 See id.
MURRAy v. UNMC PhySICIANS 	271
Cite as 282 Neb. 260

free to argue and present evidence that UNMC’s experts were
wrong when they opined about customary practice. But that
was a jury question.
Finally, and more fundamentally, the district court’s concerns
about health care policy, while understandable, are misplaced in
a situation in which the patient’s ability to continue to pay for
treatment is still a medical consideration. In other words, even
when the standard of care is limited to medical considerations
relevant to the welfare of the patient, and not economic consid-
erations relevant to the welfare of the health care provider,33 the
standard of care articulated by UNMC’s witnesses in this case
was still consistent with a medical standard of care.
This case does not involve a conflict of interest between the
physician and patient—there was no evidence, for instance,
of a financial incentive for UNMC’s physicians to control
costs.34 As explained by UNMC’s witnesses, the decision to
defer Flolan treatment was not based on its financial effect on
UNMC, or subordinating Mary’s well-being to the interests of
other patients, or even considering Mary’s own financial inter-
est. Instead, when making its initial value judgment regarding
Mary’s treatment,35 UNMC’s physicians were not weighing
the risk to Mary’s health against the risk to her pocketbook, or
UNMC’s budget, or even a general social interest in control-
ling health care costs. UNMC’s physicians were weighing the
risk to Mary’s health of delaying treatment against the risk
to Mary’s health of potentially interrupted treatment. Stated
another way, this was not a case in which a physician refused
to provide beneficial care—it was a case in which the physi-
cians determined that the care would not be beneficial if it was
later interrupted. In fact, it could be deadly.
As explained by Murphy, Thompson, and Johnson, the rea-
son for waiting to begin Flolan until after insurance approval
33 See, e.g., Thompson v. Sun City Community Hosp., Inc., 141 Ariz. 597,
688 P.2d 605 (1984); Wilmington Gen. Hospital v. Manlove, 54 Del. 15,
174 A.2d 135 (1961). Cf. Creighton-Omaha Regional Health Care Corp.
v. Douglas County, 202 Neb. 686, 277 N.W.2d 64 (1979).
34 Compare Shea v. Esensten, 622 N.W.2d 130 (Minn. App. 2001).
35 See hirshfeld, supra note 16.
272 	282 NeBRASkA RePORTS

had been obtained was out of concern for the health of the
patient. That was not meaningfully different from any number
of other circumstances in which a health care provider might
have to base a treatment decision upon the individual circum-
stances of a patient. For instance, a physician with concerns
about a particular patient’s ability to follow instructions, or
report for appropriate followup care, might treat the patient’s
condition differently in the first instance. And a health care
provider who is told that a patient cannot afford a particular
treatment may recommend a less expensive but still effective
treatment, reasoning that a treatment that is actually used is
better than one that is not. These are difficult decisions, and
there may be room to disagree, but it is hard to say they are
unreasonable as a matter of law, or that an expert cannot tes-
tify that such considerations are consistent with the customary
standard of care.
And as noted above, Robert’s witnesses were free to disagree
with UNMC’s witnesses; Robert could (and did) argue that the
standard of care required more than UNMC’s witnesses said
it did. And the evidence might have supported the conclusion
that given Mary’s deteriorating condition, there was little risk
in beginning Flolan even without a payment source in place.
(Although we note, for the sake of completeness, that Johnson
also testified that Mary’s weakening condition militated against
beginning Flolan on an emergent basis, because its side effects
could have been deadly.)
In other words, the jury could have found that in this case,
given the facts and testimony, the standard of care required
Flolan to be administered immediately. But it was a question
for the jury, and there was also competent evidence supporting
a conclusion that the standard of care had not been breached.
The court erred in concluding that it should have directed a
verdict on the standard of care. And for that reason, the court
abused its discretion in granting Robert’s motion for new trial.
UNMC’s assignment of error has merit.
UNMC’s evidence and opinion testimony reflect difficult
medical decisions—but still medical decisions. Therefore, the
scope of our holding is limited. We need not and do not
decide whether the standard of care can or should incorporate
MURRAy v. UNMC PhySICIANS 	273
Cite as 282 Neb. 260

considerations such as cost control or allocation of limited
resources. Although the decision (or lack thereof) of a third-
party payor contributed to the circumstances of this case,
UNMC’s decisions were still (according to its evidence) pre-
mised entirely upon the medical well-being of its patient. In a
perfect world, difficult medical decisions like the one at issue
in this case would be unnecessary. But we do not live in a per-
fect world, and we cannot say as a matter of law that UNMC’s
decisions in this case violated the standard of care.
CONCLUSION
For the foregoing reasons, the district court’s order granting
Robert’s motion for new trial is reversed.
reverSed.
wriGht and StephAn, JJ., not participating.
StAte of nebrASKA, Appellee , v.
A rmon m. dixon, AppellAnt.
802 N.W.2d 866
Filed September 16, 2011. 	No. S-10-476.
1. Venue: Appeal and Error. An appellate court reviews the denial of a motion to
change venue for abuse of discretion.
2. Venue. Under Neb. Rev. Stat. § 29-1301 (Reissue 2008), a change of venue is
mandated when a defendant cannot receive a fair and impartial trial in the county
where the offense was committed.
3. Venue: Proof. Unless a defendant claims that the pretrial publicity has been so
pervasive and prejudicial that a court should presume the partiality of prospective
jurors, a change in venue is evaluated under the following factors: These factors
are (1) the nature of the publicity, (2) the degree to which the publicity has circu-
lated throughout the community, (3) the degree to which the publicity circulated
in areas to which venue could be changed, (4) the length of time between the
dissemination of the publicity complained of and the date of the trial, (5) the
care exercised and ease encountered in the selection of the jury, (6) the number
of challenges exercised during voir dire, (7) the severity of the offenses charged,
and (8) the size of the area from which the venire was drawn.
4. Venue: Due Process. Mere exposure to news accounts of a crime does not pre-
sumptively deprive a defendant of due process.
5. Venue: Due Process: Proof. To warrant a change of venue, a defendant must
show the existence of pervasive misleading pretrial publicity. A defendant must
show that publicity has made it impossible to secure a fair and impartial jury.
274 	282 NeBRASkA RePORTS