## Facts

- Mary K. Murray had pulmonary arterial hypertension, a condition involving constricted lung blood vessels that can lead to heart failure.
- Her physicians planned Flolan (epoprostenol) therapy, a continuous pump-administered vasodilator requiring uninterrupted dosing.
- Flolan was extremely costly, intended as indefinite therapy, and interruption could cause rapid rebound pulmonary hypertension and life-threatening consequences.
- A right-heart catheterization confirmed pulmonary arterial hypertension with significant heart failure and reduced blood flow.
- Physicians chose not to begin Flolan until insurance authorization or another funding source was secured, citing the medical danger of starting a therapy that might be interrupted.
- Mary was discharged anticipating later initiation of Flolan, returned to the emergency department shortly thereafter with severe symptoms, suffered a seizure, and died before Flolan began.

## Issues

1. Whether expert medical witnesses may opine that, under Nebraska’s customary standard of care, physicians may consider the health risks to a patient who may be unable to pay for continued treatment when interruption would be dangerous.
2. Whether the district court erred as a matter of law by treating the defense experts’ standard-of-care testimony as inconsistent with Nebraska’s statutory standard of care.
3. Whether the district court abused its discretion by granting a new trial after a defense verdict based on its view that the defense experts’ testimony was legally incorrect.

## Decision

- The Nebraska Supreme Court reversed the order granting a new trial and remanded with directions to reinstate the jury’s verdict for UNMC Physicians.
- The Court held that defense expert testimony was admissible and not legally inconsistent with Nebraska’s statutory standard of care.
- The Court concluded the district court lacked valid legal cause to set aside the verdict, because the new-trial ruling rested on an incorrect legal premise about the standard of care.

## Legal Principles

- Nebraska’s medical-malpractice standard of care is governed by statute and requires the degree of skill, learning, and care ordinarily used by similarly situated professionals under like circumstances.
- Standard-of-care analysis is fact-dependent; “circumstances” may include clinical safety risks tied to whether a treatment can be maintained without dangerous interruption.
- Expert testimony may address customary practice that accounts for the medical risks of initiating an expensive, indefinite therapy when noncontinuation could endanger the patient.
- Distinguishing clinical safety judgment from economic rationing is essential; where inability to secure ongoing treatment creates medical danger, consideration of that risk can be consistent with professional care.
- Conflicting expert opinions on standard of care and causation are generally for the jury to resolve; a trial court may not displace the jury’s role by declaring one side’s medical standard-of-care theory legally invalid without a correct legal basis.
- A new trial requires legal cause; granting a new trial based on a misstatement of governing law constitutes an abuse of discretion.

## Conclusion

The court reinstated the defense verdict, ruling that expert testimony may treat a patient’s ability to maintain a continuous, interruption-dangerous therapy as a relevant circumstance in assessing the customary medical standard of care, and that the trial court improperly granted a new trial by rejecting that testimony as legally impermissible.


Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118 (Neb. 2011)