Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury.
Nebraska has capped total damages in medical malpractice cases at $2,250,000. For entities that qualify under the the Hospital-Medical Liability Act, liability is capped at $500,000, with any award in excess of $500,000 to be paid from the state's Excess Liability Fund.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Nebraska follows a modified rule of joint and several liability, pursuant to which liability for economic damages is joint and several, but liability for non-economic (pain and suffering) damages is several. For non-economic damages, each defendant is liable only in proportion to that defendant's percentage of negligence.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Nebraska has eliminated the collateral source rule for medical malpractice cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Nebraska, a medical malpractice action must be commenced within to years from injury or one year from the date the injury was or reasonably should have been discovered, but in no event more than ten years from the date of injury. For malpractice claims by minors, the statute of limitations starts to run at the age of twenty.
than 10 years from injury. Minors under age 20: shall be entitled to bring such action after reaching majority.
Additional rules affecting malpractice litigation in the State of Nebraska include:
Medical Review Panels
In Nebraska, for any medical malpractice claim against a health care provider covered by the Nebraska Hospital-Medical Liability, the claim must be submitted to a medical review panel before it may be filed in court. The claimant may waive the right to panel review. Within thirty days of review, the panel must issue an opinion in writing finding that the evidence supports the conclusion that the defendant failed to comply with the governing standard of care, that the evidence supports the conclusion that the defendant complied with the governing standard of care, or that there is a material issue of fact that relates to liabilty, not requiring expert opinion, for consideration by the court or by a jury. The report, and any minority report, produced by the medical review panel is admissible in evidence in subsequent litigation, but is not conclusive.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. In Nebraska, for litigation or arbitration proceedings arising from a medical malpractice claim, statements, affirmations, gestures, or conduct expressing apology, sympathy, or similar expressions of compassion or benevolence made by a health care provider to the alleged victim, their relative or representative, which relate to any injury, pain, suffering, discomfort or death of the alleged victim as a result of medical care is inadmissible as either an admission of liability or as a statement against interest. However, a statement of fault that is made as part of such an expression remains admissible.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.