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In Apkan v. Life Care Centers of America, Inc., the court of appeals of Nebraska affirms a case involving Life Care’s negligent care of Musa Gwelo. David Apkan, the special administrator of Gwelo’s estate, filed the action against Life Care, as well as Consolidated Resources Health Care Fund I, L.P., which collectively are referred to as Life Care. Apkan appeals the district court’s order that granted summary judgment on the side of Life Care.

On appeal, Apkan disputes the district court’s allowance of two affidavits over his argument. Apkan also alleged that the district court wrongly failed to apply the “common-knowledge exception” to the need of expert testimony in order to prove causation.

On June 17, 2014, Apkan claimed that Gwelo had been living at Life Care’s nursing home in Elkhorn, Nebraska from July 6 to July 9, 2012. Life Care, according to Apkan, failed at its duty to care for Gwelo, which resulted in her falling from her bed, sustaining an injury and dying. This complaint set forth a claim of negligence for the resident’s pain and suffering before her death and for her wrongful death.

Life Care did respond and admit that Gwelo was its resident during the claimed time period, that it has nurses who have nursing experience, and that the Department of Health and Human Services staffed and licensed it. Everything else in Apkan’s complaint was denied. Life Care filed a motion for summary judgment and alleged that there are no actual issues of material fact. To support this motion, Life Care offered the affidavits of Kirk Sweeney and Dr. Donald R. Frey.

Sweeney, the director of Life Care’s Elkhorn facility, stated when Life Care admitted Gwelo and what her medical diagnoses were at that time. Gwelo had also filled out the appropriate forms regarding “Do Not Resuscitate” status during her admission.

Dr. Frey stated that he is a medical physician specializing in family medicine in Omaha, Nebraska. Based on Dr. Frey’s review and analysis of Gwelo’s medical records, his own credentials and medical knowledge, he believed “to a reasonable degree of medical certainty” that Life Care met the appropriate standard of care, and that the claimed actions or inactions of Life Care did not directly cause Gwelo’s death.

Apkan, who submitted his own affidavit to the court, was a longtime friend of Gwelo’s and had visited her on July 6, 2012. He had discovered that she had fallen on the floor, and after the event he returned each day to the Life Care facility until July 9. Gwelo had arrived at an outpatient clinic that day, and her condition was found to be unstable. She was transferred to an emergency hospital room, where nurses and staff confirmed that Gwelo had suffered two subdural hematomas on her brain that were bleeding actively, and that she couldn’t be treated due to her platelet deficiency. Due to those hematomas and the suspension of her treatments, she died on July 12.

During an analysis, it was found that Apkan’s appeal states that because the court wrongly admitted the affidavits of Sweeney and Dr. Frey, it also erred in giving Life Care’s motion for summary judgment. With Sweeney’s affidavit, the appeals court affirmed the decision of the district court by agreeing that Sweeney had proficient knowledge. The facts in his affidavit set forth facts that could be admissible in evidence, and he was competent to the matters in the affidavit.

However, the appeals court further examined certain facts related to the affidavit of Dr. Frey. The statutory differences between “assisted living facilities” and “skilled nursing facilities” were put into question, since Apkan had argued that Dr. Frey’s affidavit didn’t apply the correct standard of care determining whether Life Care was negligent because of this language used. It was found, though, that the district court did not abuse its discretion in admitting Dr. Frey’s affidavit, because he was found to be qualified to assess the cause of Gwelo’s damages leading to her death.

In reference to the common-knowledge exception, the appeals court agreed with the district court. It was found that it did not abuse its discretion in realizing that Life Care’s actions did not obviously cause Gwelo’s death or damages, such that “a layperson could identify it without the assistance of expert testimony.”

In the court’s conclusion, it was found that Life Care had provided enough evidence (through Sweeney and Dr. Frey’s affidavits) to show that Gwelo’s alleged damages and death were not caused by any action or inaction done by Life Care. Apkan was not able to produce any evidence to support his argument that Gwelo fell while in Life Care or how she was found on the floor. Without this evidence, the district court was unable to find Life Care liable for negligence. The appeals court affirmed the district court’s decision for summary judgment in favor of Life Care.

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