Nebraska Medical Malpractice Laws

Medical malpractice claims are nuanced in that there are a variety of facts that must be analyzed to make certain that your claim has merit and is permitted to be filed with a court. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Nebraska; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Nebraska. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Nebraska

In Nebraska, you may bring a medical malpractice case against a medical care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Nebraska places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Nebraska allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, most cases settle out of court prior to the case advancing to the trial stage of litigation. Nebraska is one of a few states that refuse to place a limit on damages that may be awarded to a plaintiff in a medical malpractice case unless the case is brought under a Medical Liability Act that requires participation from qualified health care providers and patients before it can be invoked.

How long do I have to file a medical malpractice case in Nebraska?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Nebraska mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1]

This time limitation is known as the “statute of limitations” which refers to the time period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no recourse. The reason behind placing a time limitation on when you may file a medical malpractice claim is sound. A court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially help bolster your case would become less compelling.

The law in Nebraska does provide a special exception to the two-year statute of limitations rule whereby the two-year clock does not begin to run until your injury has been, or should have been, discovered. The law mandates that the lawsuit be filed within one year of discovery. [2]

In Nebraska Medical Malpractice Cases, who is Responsible?

In Nebraska, an action arising out of a medical injury may be brought against a medical care provider whether based in tort, contract, or otherwise, to recover damages on account of your medical injury.

Those that can be held responsible due to being included in the definition of a “medical care provider” include: physicians, certified registered nurses, anesthetists, an individual, partnership, limited liability company, corporation, association, facility, institution, or other entity authorized by law to provide professional medical services by physicians or a hospital.

When bringing a medical malpractice claim against a healthcare provider, the burden of proof rests with you and you must prove:

The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;

That the medical care provider failed to act in accordance with that standard; and

That as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.

What if I am partially to blame? Can I Still Recover Money for Nebraska Medical Malpractice?

Nebraska, along with 32 other states recognizes the doctrine of modified comparative fault. [3] The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Nebraska is one of 12 states (Arkansas, Colorado, Georgia, Idaho, Kansas, Maine, North Dakota, Oklahoma, Tennessee, Utah and West Virginia) that follow a 50% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 49% or less.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and alcohol that you consumed while on the medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 60% of the blame while assigning 40% of the blame to you for not following the medication’s instructions when you consumed alcohol while on the medication. Since you were awarded 40% of the blame, you would be able to recover a portion of damages because you were not found to have been 50% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $60,000 after the apportioned 40% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Nebraska decided to adopt a modified system.

Are there medical malpractice recovery caps in Nebraska?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence.

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – actual damages and general damages.

Actual damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work
• General damages compensate you for occurrences that are hard to properly value. For example:
• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical cost
• Loss of future wages

Generally, the law in Nebraska does not place a limit on the amount of compensatory damages you may be awarded by a court. However, if your lawsuit is against a qualified health care provider, it is likely that some type of cap will be placed on your damage award. For more on this, see the immunity section listed below.

Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than compensate the plaintiff. Unlike many other states, the law in Nebraska does not allow punitive damage awards.

Expert witness reporting and testimony

In Nebraska, if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify.

Having an expert provide testimony that supports the claims you are making against a healthcare provider in your medical malpractice case is the best way to substantiate the merits of your claim. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, the plaintiff suffered injuries that would not otherwise have been incurred.

If you elect to have an expert provide testimony as a way of bolstering your case, they must show more than that they would have treated you differently than the defendant had you been their patient. A mere disagreement over what the proper treatment should have been does not establish negligence. The element of deviation from the standard of care is often the most contentious battle when it comes to the experts. As long as your expert testifies that the defendant’s conduct deviated from the standard of care, a genuine issue of fact remains for the jury. But even if the defendant is found to have deviated from the standard of care, that deviation alone will not support a claim for malpractice. The defendant’s deviation must have been the cause of your injuries. To do this, the expert must state that it was more likely than not that you would have had a better outcome had the defendant not deviated from the established standard of care.

Are some Parties Immune from Medical Negligence Cases?

The Nebraska State Tort Claims Act states that the State of Nebraska is not liable for the torts of its officers, agents, or employees, and that a lawsuit shall not be maintained against the state, any state agency, or any employee of the state. In all suits brought under the State Tort Claims Act, the state is liable in the same manner and to the same extent as a private individual under the same or similar circumstances, as long as the claim is submitted in writing to the State Claims Board within two years from the time of the cause of action. [4]

The Nebraska Hospital Medical Liability Act was enacted in 1976 in order to address a perceived medical liability crisis where claims lacking proper merit were causing high expenses and expenditure of time for physicians and courts alike.

The Act included a cap on recoverable damages in medical malpractice actions, a cap on liability for qualified health care providers, and established the Excess Liability Fund.

To qualify as a health care provider under the Act, a physician must file proof of financial responsibility with the Director of Department of Insurance and pay a surcharge that is allocated to the Excess Liability Fund.

The Excess Liability Fund is financed through the annual surcharge paid by all qualified health care providers. The balance usually hovers around the $5 million mark and helps health care providers withstand large judgments.

For the Act to be invoked due to a medical malpractice lawsuit, not only must the physician be qualified under the Act, but so too must the patient. For the Act to apply, the patient must have been covered by the Act at the time of the occurrence that is the basis for the lawsuit. For the most part, patients are presumed to be covered by the Act. However, if a patient filed an election to not be bound by the Act with the Director of Department of Insurance prior to their treatment, they will not be qualified under the Act and the lawsuit will proceed outside of the Act’s protections.

Settling medical malpractice cases in Nebraska

Seeing a case through to the end of a trial can take an extraordinary amount of time, money and resources. For those reasons, it is not uncommon for a case to settle prior to trial. The law in Nebraska states that an action brought against a qualified health care provider, by a qualified patient, must first be heard by a medical review panel. [5] The panel is made up of one non-voting attorney and three physicians. The physicians must hold unlimited licenses to practice medicine in Nebraska. The plaintiff and defendant both choose one physician and then those two physicians appoint the third panel member. The panel will review all evidence and hear arguments from both sides before issuing a written expert opinion on whether the defendant was negligent. The findings must then be admitted into court if the case proceeds to that stage of litigation.

However, the interesting part of Nebraska’s medical review panel is that while it is required – the plaintiff may waive the requirement and instead file its case directly with a court. The waiver prevents the creation of the panel’s report and its eventual submission in court.

If the medical malpractice lawsuit is not covered by the Nebraska Hospital Medical Liability Act, alternative dispute resolution by way of arbitration, mediation, or the submission of your medical malpractice case to a screening panel is not required.

Litigating medical negligence cases in Nebraska

A claim for medical malpractice in Nebraska is initiated by preparing a Complaint and Summons that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to trial. In Nebraska, a civil lawsuit begins with the filing of a complaint with the clerk of the court. The law in Nebraska then requires that once a complaint is filed, the court clerk will issue a summons which will be served upon the named defendants by the Sheriff.

A complaint should include:

• A statement in ordinary and concise language of facts showing that the court has jurisdiction of the claim and is the proper venue and that the plaintiff is entitled to relief,
• A demand for the relief to which the plaintiff considers himself entitled
• A civil summons lets the named defendants know that a lawsuit has been filed against them. The complaint and summons must then be delivered to all named defendants in the lawsuit. Upon receipt, the defendants have 30 days to file an Answer which admits and/or denies statements made in the complaint. [6]

The Answer should include:

• Reasons for denial of the relief sought by the plaintiff
• Affirmative defenses
• Affirmative relief sought by the defendant
• Whether there will be a counter-claim, set-off, cross-claim, or third-party claim
• The address of the defendant or their attorney

Preparing for Litigation

After the disclosures have been made and the complaint, summons and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

The law in Nebraska allows each side to obtain discovery by:

• oral examination or written questions;
• written interrogatories;
• requests for admission;
• request for production of documents or other information;
• physical and mental examinations

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The deposition does not usually take place in a courtroom. Instead, the questions are asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

At the trial any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The law in Nebraska requires that claims of medical malpractice made by a qualified patient against a qualified health care provider first be heard during a medical panel proceeding prior to the case reaching the trial stage of litigation. However, this requirement may be waived by the plaintiff.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Nebraska: a judge or a jury. The law in Nebraska states that if the jury cannot reach a unanimous verdict within 6 hours of deliberations, then a verdict arrived at by 10 of a 12-person jury or 5 of a 6-person jury may be returned.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court.

Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. A potential juror is not allowed to be excluded from jury service because of race, color, religion, sex, national origin or economic status. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Nebraska, a person is considered to be qualified to be a juror if they are:

• A United States citizen
• At least 19 years of age
• Physically and mentally capable

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witnesses will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The Court of Appeals differs from the lower court in that it does not hear testimony from witnesses and does not determine facts. Instead, during an appeal, the court decides whether the trial Court made an error of law or made a factual determination unsupported by any evidence which led to the rendering of the verdict.

To appeal the decision of a lower court, you must file a Notice of Appeal with the clerk of the circuit court that entered the judgment no later than thirty (30) days from the date of the original judgment. [7]

How to find the best Nebraska Medical Malpractice Lawyer for your case

Initiating any legal proceeding can be daunting and overwhelming, especially if it is being brought against a high powered doctor or hospital. It is likely that you would rather focus on healing your injury and seeking the proper medical treatment than worry about contacting your healthcare provider’s attorney or looking for experts that can support your claim. This is why it is important to find legal representation that can take your mind off of the legalese so that you can focus on getting yourself better.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. After all, why should you be forced to go out-of-pocket for an injury that was caused by someone else? In order to increase your chances of success in your medical malpractice case, it is very important to find competent and highly skilled legal representation.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Do not let an attorney or firm pressure you into hiring them on the spot. Take your time and interview more than one law firm to make sure that the counsel you end up with is the right fit for you and your family.

Make certain to seek out an attorney or law firm that has extensive experience and knowledge with cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation.

If the attorney or firm you are interviewing has a large case load, you will want to make sure that your case gets sufficient attention. Ask the firm or attorney if they have the time to focus on your case.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs.

Some notable medical malpractice law decisions from Nebraska

These cases represent awards to plaintiffs in medical malpractice cases in Nebraska. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Schmidt v. Bellevue Medical Center

A medical malpractice lawsuit was filed against Bellevue Medical Center on behalf of a girl who suffered brain damage during her delivery at Bellevue Medical Center. As a result of her injury, the girl is unable to walk or talk and has limited vision.

At trial it was discovered that on October 30th, 2012, the child’s mother labored at home. The next day she saw was seen at The Midwife’s Place and the baby was found to be reactive and healthy inside the womb and was told to go home. The mother returned to The Midwife’s Place about on November 1st and spent 10 hours there having contractions. She then was transferred to Bellevue Medical Center, where nobody determined the position of the fetus or measured the strength of the contractions. Hospital staff administered a drug to augment the labor. The mother then experienced excessive contractions while the baby was most likely abnormally positioned and stuck inside the mother for hours, resulting in oxygen deprivation, brain compression, and brain damage. The child was finally born on November 2nd with her face bruised and her head deformed.

The jury awarded a $17 million verdict which will not be capped since the hospital was not considered to be a qualified health care provider.

Cuenca v. Nebraska Methodist Hospital

The family of Jackson Cuenca filed a medical malpractice lawsuit against Nebraska Methodist Hospital and Physicians Clinic on claims that the child’s delivery was mismanaged and caused severe health problems.

The plaintiffs argued at trial that forceps were improperly used during the child’s delivery which caused a permanent brain injury.

A jury awarded $11.5 million in damages. It is possible that the $11.5 million award may be reduced due to damage cap limitations.

Footnotes

[1] Neb. Rev. Stat. §§ 25-222

[2] Neb. Rev. Stat. §§ 25-222

[3] Neb. Rev. Stat. § 25-21,185

[4] Neb. Rev. Stat. § 81-8,215

[5] Neb. Rev. Stat. §§ 44-2840

[6] Nebraska Court Rules of Pleading 6-1112

[7] Neb. Rev. Stat. §§ 25-1912