Olson v. Wrenshall

OLSON v. WRENSHALL 	445
Cite as 284 Neb. 445
Sean M. O lSOn and M ichelle l. O lSOn, huSband and
wife, appellantS, v. lucile wrenShall, M.d., and
univerSity Of nebraSka M edical center
phySicianS, a nebraSka prOfeSSiOnal
cOrpOratiOn, appelleeS.
822 N.W.2d 336
Filed October 5, 2012. 	No. S-11-1030.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to any material facts
or 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. ____: ____. In reviewing a summary judgment, an appellate court views the
evidence in the light most favorable to the party against whom the judgment was
granted, and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
4. Judgments: Appeal and Error. When reviewing a question of law, an appel-
late court resolves the question independently of the conclusion reached by the
trial court.
5. Summary Judgment: Appeal and Error. The grant of a motion for summary
judgment may be affirmed on any ground available to the trial court, even if it is
not the same reasoning the trial court relied upon.
6. Negligence: Damages: Proximate Cause. In order to prevail in a negligence
action, a plaintiff must establish the defendant’s duty to protect the plaintiff from
injury, a failure to discharge that duty, and damages proximately caused by the
failure to discharge that duty.
7. Negligence. The threshold inquiry in any negligence action is whether the
defendant owed the plaintiff a duty.
8. Negligence: Words and Phrases. A “duty” is an obligation, to which the law
gives recognition and effect, to conform to a particular standard of conduct
toward another.
9. Negligence. If there is no duty owed, there can be no negligence.
10. 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.
11. 	Physician and Patient. Traditionally, a physician’s duty to exercise the appli-
cable standard of care arises out of the physician-patient relationship.
12. Negligence: Public Policy: Legislature. The determination of a legal duty is
fundamentally based in public policy considerations, and it is generally the
function of the Legislature to declare what is the law and public policy of
Nebraska.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

446 	284 NEBRASKA REPORTS
Appeal from the District Court for Douglas County: JOSeph
S. trOia, Judge. Affirmed.
John M. Lingelbach, Gregory C. Scaglione, and Patrice D.
Ott, of Koley Jessen, P.C., L.L.O., for appellants.
Joseph S. Daly and Mary M. Schott, of Sodoro, Daly &
Sodoro, P.C., for appellees.
heavican, c.J., wright, cOnnOlly, and MccOrMack, JJ., and
irwin, SieverS, and pirtle, JudgeS.
MccOrMack, J.
NATURE OF CASE
This is an appeal after summary judgment in a medical mal-
practice action. A kidney donor brought suit after his donated
kidney was rendered useless by allegedly negligent medical
treatment provided to the donee. At issue is whether a duty of
care is owed to a kidney donor by the physicians providing
posttransplant treatment to the donee.
BACKGROUND
Daniel Olson was in need of a kidney, and his son, Sean
M. Olson, volunteered to be the donor. Dr. Lucile Wrenshall
performed the surgery to remove Sean’s kidney. The surgery
was successful, and there were no reported complications.
That same day, in a separate surgery, Dr. Michael Morris trans-
planted Sean’s donated kidney into the body of Daniel. In the
weeks following the surgery, Daniel experienced complications
with the donated kidney and additional surgical procedures
were required.
Two weeks later, Wrenshall performed an exploratory sur-
gery on Daniel. During that surgery, it is alleged, Wrenshall
mistakenly stitched the renal artery, which supplied blood to
the donated kidney.
Shortly thereafter, Morris performed a third surgery. In
his operative report, Morris noted that two surgical sutures
transgressed the renal artery. At that time, Morris determined
the donated kidney could not be saved and ordered it to
be removed.

OLSON v. WRENSHALL 	447
Cite as 284 Neb. 445
Sean and his wife, Michelle L. Olson, brought suit for med-
ical malpractice against Wrenshall and Morris for negligence
in the performance of their professional services for Daniel.
The complaint did not allege negligent care was provided to
Sean. Rather, it alleged that Wrenshall was negligent in erro-
neously stitching Daniel’s renal artery during the exploratory
surgery. It also alleged that both Wrenshall and Morris were
negligent in failing to monitor and supervise Daniel and prop-
erly detect the decreased blood flow to his transplanted kidney
after the exploratory surgery. Further, the plaintiffs sought
relief from University of Nebraska Medical Center Physicians
(UNMCP), the employer of Wrenshall and Morris, under a
theory of respondeat superior.
On July 15, 2011, a hearing was held concerning three
relevant 	motions: 	Morris’ motion 	for 	summary 	judgment,
Wrenshall and UNMCP’s joint motion for summary judgment,
and the plaintiffs’ motion for continuance of the summary
judgment hearing. At the hearing, the defendants contended
that neither Wrenshall nor Morris owed a duty of care to Sean
during the care of Daniel. Furthermore, the defendants argued
that Sean did not suffer any legally cognizable damages.
The plaintiffs’ motion to continue the hearing date for
summary judgment was heard first. The motion sought a con-
tinuance to conduct further discovery on whether a physician-
patient relationship existed between Sean and the defendants.
Counsel stated that such evidence would establish a duty of
care that the defendants owed Sean. According to counsel,
this duty of care to Sean would extend to include Daniel’s
treatment.
The defendants responded that such discovery was irrelevant
to the court’s determination of whether there was a cause of
action. The defendants contended that regardless of whether
Sean had a preexisting physician-patient relationship with the
defendants, no duty existed to Sean during the care and treat-
ment of Daniel. The court agreed, and the motion to continue
was denied.
In support of summary judgment, the defendants jointly
offered into evidence the consent form signed by Sean for
his kidney removal surgery. The defendants also requested

448 	284 NEBRASKA REPORTS
that the district court take judicial notice that the complaint
was devoid of any claim of personal injury suffered by Sean.
Finally, Morris offered his own affidavit into evidence to
establish that he did not perform Sean’s surgery to remove the
donated kidney.
In opposition to the motions, the affidavit of a medical
expert was offered. The affidavit proposed the standard of care
allegedly breached by Wrenshall. The medical records of Sean
were also offered to demonstrate that physician-patient rela-
tionships existed between the defendants and Sean.
The district court granted Morris’ motion for summary judg-
ment. In its order, the district court stated that Morris had
a physician-patient relationship solely with Daniel and thus
did not owe a duty to Sean. Further, the order stated that
the plaintiffs had failed to demonstrate legally cognizable
damages because Sean had donated the kidney prior to any
alleged negligence.
The district court soon realized it failed to rule on Wrenshall
and UNMCP’s motion for summary judgment. On November
7, 2011, the district court entered an order nunc pro tunc,
wherein it found that Wrenshall and UNMCP’s motion for
summary judgment should also be sustained because the plain-
tiffs had failed to present an issue of fact as to any damages
Sean suffered.
Prior to this appeal, the plaintiffs dismissed Morris from
this action.
ASSIGNMENTS OF ERROR
The plaintiffs assign that the district court erred in grant-
ing summary judgment for four reasons: (1) A duty of care
did arise from the physician-patient relationship between Sean
and Wrenshall, and such duty was breached by Wrenshall’s
allegedly negligent treatment of Daniel; (2) Sean suffered dam-
ages that are or should be recognized under Nebraska law; (3)
opposing expert opinions on the standard of care and breach of
that standard of care created fact issues that were inappropriate
for disposition on summary judgment; and (4) a continuance
of the summary judgment hearing should have been granted to
conduct further discovery.

OLSON v. WRENSHALL 	449
Cite as 284 Neb. 445
STANDARD OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admissible evidence
offered at the hearing show that there is no genuine issue as to
any material facts or the ultimate inferences that may be drawn
from those facts and that the moving party is entitled to judg-
ment as a matter of law.1 In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable
to the party against whom the judgment was granted, and gives
that party the benefit of all reasonable inferences deducible
from the evidence.2
[3-5] The question whether a legal duty exists for action-
able negligence is a question of law dependent on the facts in
a particular situation.3 When reviewing a question of law, an
appellate court resolves the question independently of the con-
clusion reached by the trial court.4 The grant of a motion for
summary judgment may be affirmed on any ground available
to the trial court, even if it is not the same reasoning the trial
court relied upon.5
ANALYSIS
duty Of care
This appeal requires us to decide whether a physician owes
a duty of care to a kidney donor during the posttransplant treat-
ment and care of the donee. We hold that in this instance such
a duty does not exist.
[6-9] In order to prevail in a negligence action, a plaintiff
must establish the defendant’s duty to protect the plaintiff
from injury, a failure to discharge that duty, and damages
1 Feloney v. Baye, 283 Neb. 972, 815 N.W.2d 160 (2012).
2 Westin Hills v. Federal Nat. Mortgage Assn., 283 Neb. 960, 814 N.W.2d
378 (2012).
3 A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
4 See Ichtertz v. Orthopaedic Specialists of Neb., 273 Neb. 466, 730 N.W.2d
798 (2007).
5 Continental Cas. Co. v. Calinger, 265 Neb. 557, 657 N.W.2d 925 (2003).

450 	284 NEBRASKA REPORTS
proximately caused by the failure to discharge that duty.6 Thus,
the threshold inquiry in any negligence action is whether the
defendant owed the plaintiff a duty.7 A “duty” is an obligation,
to which the law gives recognition and effect, to conform to a
particular standard of conduct toward another.8 If there is no
duty owed, there can be no negligence.9
[10,11] 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.10
Traditionally, a physician’s duty to exercise the applicable stan-
dard of care arises out of the physician-patient relationship.11
This relationship is said to arise when the physician undertakes
treatment of the patient.12
Here, 	the 	plaintiffs 	present 	two 	arguments 	as 	to 	why
Wrenshall owed a duty of care to Sean. First, Sean and
Wrenshall’s physician-patient relationship from Sean’s kidney
removal surgery created a duty of care owed by Wrenshall to
Sean during the treatment of Daniel. And second, Wrenshall
owed a general duty of care to Sean because Sean was subject
to serious risks associated with Daniel’s surgery. As a matter of
law, we reject both arguments and find that Wrenshall did not
owe a duty of care to Sean during her posttransplant treatment
of Daniel.
duty Of care ariSing frOM
phySician -patient relatiOnShip
We hold that Sean and Wrenshall’s physician-patient rela-
tionship did not create a duty of care to Sean during the
6 Keys v. Guthmann, 267 Neb. 649, 676 N.W.2d 354 (2004).
7 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
8 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 3.
9 Turner v. Fehrs Neb. Tractor & Equip., 259 Neb. 313, 609 N.W.2d 652
(2000).
10 Yoder v. Cotton, 276 Neb. 954, 758 N.W.2d 630 (2008).
11 See Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125 (1991).
12 Id.

OLSON v. WRENSHALL 	451
Cite as 284 Neb. 445
posttransplant treatment of Daniel. In the only two appellate
opinions in the country confronted with similar facts, each
court began its analysis with the threshold question of duty.13
In both instances, the court rejected the donor’s medical mal-
practice claim because the donee’s treating physicians did not
owe a duty of care to the donor.14
In Malik v Beaumont Hosp15 and Ornelas v. Fry,16 medical
malpractice suits were brought by the donor for the loss of
a donated kidney against the donee’s treating physicians for
negligent conduct during the donee’s treatment. The Michigan
Court of Appeals in Malik found no duty because the donor’s
physician-patient relationship with the treating physicians did
not arise during the donee’s surgery. Likewise, in Ornelas, the
Arizona Court of Appeals rejected the donor’s claim because
the donor failed to prove the existence of a physician-patient
relationship. The court explained that without the relationship,
the anesthesiologist owed no legal duty to the donor and thus
the claimed injury was not redressable.17
In opposition to Malik and Ornelas, the plaintiffs errone-
ously rely on Siebe v. University of Cincinnati,18 an Ohio trial
court decision. This is the only opinion cited by the plaintiffs
that recognized a donor’s medical malpractice cause of action
against the donee’s negligent physician. However, we find
Siebe to be unpersuasive because it fails to address the thresh-
old question of duty.
Although there is not a Nebraska case on point, we have
held that a physician’s duty to exercise the applicable standard
of care arises during the physician’s treatment of the patient.19
13 Malik v Beaumont Hosp, 168 Mich. App. 159, 423 N.W.2d 920 (1988);
Ornelas v. Fry, 151 Ariz. 324, 727 P.2d 819 (Ariz. App. 1986).
14 Malik v Beaumont Hosp, supra note 13; Ornelas v. Fry, supra note 13.
15 Malik v Beaumont Hosp, supra note 13.
16 Ornelas v. Fry, supra note 13.
17 Id.
18 Siebe v. University of Cincinnati, 117 Ohio Misc. 2d 46, 766 N.E.2d 1070
(2001).
19 See, Regier v. Good Samaritan Hosp., 264 Neb. 660, 651 N.W.2d 210
(2002); Flynn v. Bausch, supra note 11.

452 	284 NEBRASKA REPORTS
To establish that Wrenshall owed him a duty of care, Sean
must allege that during the medical treatment he received from
Wrenshall, Wrenshall’s conduct was negligent.20
The complaint clearly alleges that all of Wrenshall’s neg-
ligent conduct occurred during her treatment of Daniel, not
Sean. Specifically, the complaint states that “Wrenshall was
negligent in the performance of her professional services for
Daniel.” Furthermore, each alleged instance of Wrenshall’s
negligence occurred exclusively during the posttransplant treat-
ment of Daniel. In fact, the complaint is devoid of any allega-
tion that Wrenshall’s negligent conduct was part of the treat-
ment received by Sean.
There are no genuine issues of material fact that all of
Wrenshall’s 	alleged 	deviations 	from 	the 	standard 	of 	care
occurred during the treatment of Daniel, not Sean. Thus, as
a matter of law, Wrenshall did not owe a duty of care arising
from the physician-patient relationship to Sean during her post-
transplant treatment of Daniel.
general duty Of care
tO third party
Further, we hold that Wrenshall did not owe a general third-
party duty of care to Sean during Daniel’s allegedly negligent
treatment. In their brief, the plaintiffs invite us to create a
new legal duty under Flynn v. Bausch,21 where we suggested
that in certain cases the physician-patient relationship may
engender a duty to third parties who are subject to serious risks
associated with a patient’s treatment or condition. We decline
their invitation.
[12] We are mindful of the fact that the determination of a
legal duty is fundamentally based in public policy consider-
ations and that it is generally the function of the legislature to
declare what is the law and public policy of this state.22 Given
that no relevant statute establishing this state’s public policy
20 See Ornelas v. Fry, supra note 13.
21 Flynn v. Bausch, supra note 11.
22 Munstermann v. Alegent Health, 271 Neb. 834, 716 N.W.2d 73 (2006).

OLSON v. WRENSHALL 	453
Cite as 284 Neb. 445
has been brought to our attention, we are reluctant to create or
define a new legal duty.23
In A.W. v. Lancaster Cty. Sch. Dist. 0001,24 we abandoned
the risk-utility test to determine whether a duty exists and
adopted the duty analysis set forth in the Restatement (Third)
of Torts.25 The Restatement (Third) of Torts § 7 states that an
actor owes a duty when the actor’s conduct creates a risk of
physical harm. The proposed final draft of Section 37 states the
obverse of this rule and explains that an actor whose conduct
has not created a risk of physical harm to another has no duty
of care to the other.26 Because Flynn preceded A.W. by almost
20 years, we apply the Restatement (Third) of Torts approach
to determine whether a duty existed.
Here, we find that Wrenshall’s allegedly negligent treat-
ment of Daniel did not subject Sean to any risk of physical
harm. Sean’s surgery was on May 19, 2009, and he was dis-
charged 4 days later on May 23. The exploratory surgery in
which the renal artery was erroneously stitched occurred 2
weeks later.
At the time of Daniel’s exploratory surgery and subsequent
treatment, Sean was not at risk of physical harm associated
with Daniel’s treatment. Whether Wrenshall was negligent
or not, Wrenshall’s posttransplant treatment of Daniel could
not and did not cause Sean to suffer physical injury.27 Sean’s
kidney had already been removed, and he was not subject
to any further surgeries or treatment because of the alleged
negligence.
Therefore, there is no genuine issue of material fact that Sean
was not subject to a risk of physical harm during Wrenshall’s
23 See id.
24 A.W. v. Lancaster Cty. Sch. Dist. 0001, supra note 3.
25 Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§ 7 (2010). See, also, Riggs v. Nickel, 281 Neb. 249, 796 N.W.2d 181
(2011).
26 Restatement, supra note 25, § 37 (Proposed Final Draft No. 1, 2005). See
Ginapp v. City of Bellevue, 282 Neb. 1027, 809 N.W.2d 487 (2012).
27 See Malik v Beaumont Hosp, supra note 13.

454 	284 NEBRASKA REPORTS
allegedly negligent treatment of Daniel. Thus, again, as a mat-
ter of law, Wrenshall did not owe a duty of care to Sean during
her posttransplant treatment of Daniel.
reMaining aSSignMentS Of errOr
The plaintiffs have three remaining assignments of error,
regarding (1) whether Sean suffered legally cognizable dam-
ages, (2) whether competing experts on the standard of care
make summary judgment inappropriate, and (3) whether the
court erred in denying the motion to continue the summary
judgment hearing. Because Wrenshall did not owe a duty of
care to Sean during her posttransplant treatment of Daniel,
we conclude that the remaining assignments of error are with-
out merit.
CONCLUSION
Wrenshall did not owe a duty of care to Sean, the donor,
during 	the 	posttransplant 	treatment 	of 	Daniel, 	the 	donee.
Therefore, we hold that the district court did not err in granting
summary judgment in favor of Wrenshall and UNMCP.
affirMed.
Stephan, M iller-lerMan, and caSSel, JJ., not participating.
bryan S. behrenS, an individual, et al.,
appellantS, v. chriStian r. blunk,
an individual, et al., appelleeS.
822 N.W.2d 344
Filed October 5, 2012. 	No. S-12-093.
1. Limitations of Actions: Appeal and Error. The point at which a statute of
limitations begins to run must be determined from the facts of each case, and the
decision of the district court on the issue of the statute of limitations normally
will not be set aside by an appellate court unless clearly wrong.
2. Limitations of Actions. The period of limitations begins to run upon the viola-
tion of a legal right, that is, when an aggrieved party has the right to institute and
maintain suit.
3. Limitations of Actions: Negligence. If a claim for professional negligence is
not to be considered time barred, the plaintiff must either file within 2 years of
the alleged act or omission or show that its action falls within an exception to