Woodke & Gibbons, P.C., Attorneys at Law Woodke & Gibbons, P.C., Attorneys at Law

Summary of Nebraska Medical Malpractice Law

Index of Topics

Act
Attorney Fees
and Court Costs
Cap
Captain of Ship Doctrine Causation Collateral Source
Concurring Cause Instruction Consent Contributory Negligence
Constitutionality of Act Coverage Damages
Evidence Excess Liability Fund Expert Testimony
Health Practitioner Peer Review Committee Hospital Staff Actions Incident Reports
Implied Consent Informed Consent Insurance Coverage
Joint and Sereal Liability Jury Instructions Malpractice/Professional Negligence
Medical Treatises Morbidity and Mortality Statutes Nondelegable Duty
Postoperatvie Care Preexisting Condition Physician-Patient Privlege
Physician-Patient Relationship Qualified Health Care Provider Reporting Requirements
Residual Malpractice Insurance Authority Res Ipsa Loquitur Respondeat Superior
Settlement of Claim Under Act Standard of Care Statute of Limitations
Statute of Repose Summary Judgment Utilization Review Committees
Vicarious Liability

ACT - The Nebraska Hospital-Medical Liability Act promulgated by the Nebraska Legislature in 1976, providing a 2.25 million dollar cap on damages and creating the Excess Liability Fund. NEB. REV. STAT. §44-2801 to §44-2855. Back to top

ATTORNEY FEES AND COURT COSTS - The trial court has discretion to award the prevailing party attorney fees and court costs. NEB. REV. STAT. §44-2834. In practice, seldom awarded to either party in professional negligence actions. Back to top

CAP - Under the Act, the maximum amount awardable to any patient is the amount of 2.25 million dollars, regardless of whether such damages are "special" damages (medical bills, lost earnings, loss of earning capacity) or "general" damages (disability, disfigurement, pain and suffering, humiliation, etc.). NEB. REV. STAT. §44-2825. Back to top

CAPTAIN OF SHIP DOCTRINE - During surgery, head surgeon has nondelegable duty to provide health care and assumes exclusive control of patient. Surgeons generally held responsible for actions of other members of surgical team. Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W. 2d 783(1998). Back to top

CAUSATION
Requirement of Expert Testimony - Whether a patient's subjective injuries were caused by claimed malpractice or prior psychiatric history of depression presented medical complicated questions requiring expert testimony. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).
Relaxation of But-For Standard: As indicated in the dissent of Justice Stephan in Snyder v. Contemporary Obstetrics & Gynecology, P.C., 258 Neb. 643, 605 N.W.2d 782 (2000), while the "substantial factor" test for establishing proximate cause is recognized in Nebraska, where a case has been pled and tried upon the "but-for" causation test, the court was required to determine whether a question of fact as to causation was presented under that test.
Substantial Factor Test Approved - We have stated that the substantial factor test harmonizes with Nebraska law regarding proximate cause when multiple causes act to produce a single injury or when the active negligence of a third person is also a substantial factor in bringing about the harm. Reimer v. Surgical Services of the Great Plains, P.C. 258 Neb. 671, 605 N.W.2d 777 (2000) (substantial factor test approved but not given). Back to top

COLLATERAL SOURCE - The common law collateral source doctrine was partially abrogated by the Act (§ 44-2819), so that a defendant in a professional negligence action receives an offset against damages for any nonreimbursable health insurance policy benefits paid to or on behalf of a patient. Back to top

CONCURRING CAUSE INSTRUCTION - Taken as a whole, jury instructions in medical malpractice action brought by mother on behalf of child alleging doctor's negligence caused severe brain injuries to child shortly before his birth, in which action doctor alleged that mother was sole proximate cause of child's in utero injuries, were sufficient to ensure that mother's negligence did not operate to prevent child's recovery of damages if jury concluded that doctor's negligence was concurring or contributing proximate cause of child's injuries. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007). Back to top

CONSENT - A patient will be presumed to have consented to medical treatment absent fraud or misrepresentation. Flynn v. Bausch, 238 Neb. 61, 469 N.W.2d 125 (1991). Back to top

CONTRIBUTORY NEGLIGENCE - A patient's failure to follow medical instructions may be contributory negligence, which can bar recovery in a professional negligence action. Generally, the defense of contributory negligence has been recognized in a medical malpractice action when the patient has (1) failed to follow a medical instruction; (2) refused or neglected prescribed treatment; or (3) intentionally given erroneous, incomplete, or misleading information which is the basis for medical care or treatment of the patient. Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178 (1990). The patient's failure to return should not have been submitted to the jury as evidence of contributory negligence without specific evidence of the impact the failure to return had on her ultimate changes of survival. Hoffart v. Hodge, 5 Neb. App. 838, 567 N.W.2d 600 (1997). Where contributory negligence is pleaded as a defense, the defendant has the burden to prove such contributory negligence, and its causal relation to the patient's injury or damages. Back to top

CONSTITUTIONALITY OF ACT - Affirmed by a plurality (4-3) of justices in the test case of Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977); upheld by Gourley v. Neb. Methodist Health Sys., 265 Neb. 918, 664 N.W.2d 43 (2003). Back to top

COVERAGE - No coverage of acts of sexual abuse. Where a pediatrician's alleged acts of sexual abuse did not constitute the providing or failing to provide of professional services, there was no coverage under the professional liability insurance policy. R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d 505 (2002). Back to top

DAMAGES - General Rule - Traditional tort damages allowed, including medical bills, future medicals, lost wages, diminished earning capacity, disability, disfigurement, pain and suffering, loss of consortium.
Cap - 2.25 million dollars maximum amount of damages awardable under Act, for any occurrence after December 31, 2003. NEB. REV. STAT. §44-2825.
Loss of Chance - Not recognized as a theory of recovery or element of damages in Nebraska. Steineke v. Share Health Plan of NE, Inc., 245 Neb. 374, 518 N.W.2d 904 (1994). Punitive - Not recoverable in Nebraska by constitutional fiat. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960). Back to top

EVIDENCE - Evidence of prior medical malpractice lawsuits against a physician is not generally admissible. Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d 190 (1982). Back to top

EXCESS LIABILITY FUND - State-operated fund providing excess insurance coverage over each health care provider's underlying coverage of $500,000. NEB. REV. STAT. §44-2829. et. seq. Back to top

EXPERT TESTIMONY
General Rule - Thone v. Regional West Medical Center, 275 Neb. 238, 745 N.W.2d 898 (2008): to make a prima facie case of medical malpractice, a plaintiff must show (1) the applicable standard of care, (2) that the defendant(s) deviated from that standard of care, and (3) that this deviation was the proximate cause of the plaintiff's harm. As a general matter, expert testimony is required to identify the applicable standard of care in a medical malpractice case.
Admissibility - Governed by NEB. REV. STAT. §27-104.
Admission Exception - Where a physician has admitted that he or she was negligent in a statement to the patient or the patient's spouse, the affidavit testimony of the patient or the spouse concerning same may be sufficient to defeat a defendant's motion for summary judgment. Fossett v. Board of Regents, 258 Neb. 703 (2000).
Cause and Extent - Where the character of the alleged injury is subjective and not objective, the cause and extent of the injury must be established by expert medical expert medical testimony. Doe v. Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999).
Common-Knowledge Exception - A party can make a prima facie case of professional negligence even without expert testimony in cases where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laymen.
Common-knowledge exception to the requirement of expert testimony to identify the standard of care in professional negligence cases is limited to cases of extremem and obvious misconduct.

Expert testimony is almost always required to prove proximate causation in a medical malpractice case. Pursuant to common-knowledge exception to requirement of expert testimony, causation in professional negligence cases may be inferred without expert testimony if the causal link between the defendant's negligence and the plaintiff's injuries is sufficiently obvious to laypersons.
Whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception to expert testimony requirement in professional negligence cases is a separate inquiry from whether a defendant's negligence is sufficiently plain that it, too, may be inferred by laypersons. Thone v. Regional West Medical Center, 275 Neb. 238, 745 N.W.2d 898 (2008).

Cumulative Expert Testimony - The exclusion of proffered expert testimony will not warrant reversal where the testimony of the expert was cumulative. Leavitt v. Magid, 257 Neb. 440, 598 N.W.2d 722 (1999).
Daubert Standard - Adopted by Nebraska Supreme Court in Schafersman v. Agland Coop, 262 Neb. 215, 641 N.W.2d 862 (2001), stating "Nebraska courts should remember that the focus must be on the principles and methodology utilized by expert witnesses, and not on the conclusions that they generate," and "reasonable differences in scientific evaluation are not a basis for exclusion of an expert witness' opinion."
Impeachment by Evidence of Malpractice Insurance - It is impermissible to impeach an expert witness in a medical malpractice action by presenting evidence that the expert has the same malpractice insurance carrier as a defendant. Reimer v. Surgical Servs. Of the Great Plains, 258 Neb. 671, 605 N.W.2d 777 (2000).
Informed Consent - Must generally be established by expert testimony. Curran v. Buser, 271 Neb. 232, 711 N.W.2d 562 (2006).
Practice in Community Not Required - Medical expert from one medical community is competent to testify as expert witness in medical negligence case as to standard of care or skill required in another community if expert has knowledge of or familiarity with practice and standard of locality in question or of similar or like community. Capps v. Manhart, 236 Neb. 16, 458 N.W.2d 742 (1990).
Qualifications - A physician is not necessarily confined to his or her own medical specialty in giving testimony. See, Ashby v. First Data Resources, 242 Neb. 529, 497 N.W.2d 330 (1993); see also Vilcinskas v. Johnson, 252 Neb. 292, 562 N.W.2d 57 (1997) (allowing a family practice doctor to testify concerning the standard of care of a psychiatrist who was treating a patient with a medical problem). See also, Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89(2004) (allowing an internist to testify concerning a bladder condition). Back to top

HEALTH PRACTITIONER PEER REVIEW COMMITTEE - Peer review committee proceedings confidential pursuant to NEB. REV. STAT. §25-12,123. Back to top

HOSPITAL STAFF ACTIONS - as a general rule, a hospital staff employee lacks authority to alter or depart from an attending physician's order. Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 178 (1990). Back to top

INCIDENT REPORTS - Incident reports will not be protected under NEB. REV. STAT. §71-2047 unless they were specifically requested by a hospital-wide medical staff committee or a hospital-wide utilization review committee. AMISUB v. Buckley, 260 Neb. 596, 618 N.W.2d 684 (2000). Back to top

IMPLIED CONSENT - Consent may be implied from circumstances and an operation may be demanded by an emergency without consent. McGuire v. Rix, 118 Neb. 434, 225 N.W. 120 (1929). Back to top

INFORMED CONSENT - Defined by NEB. REV. STAT. §44-2816:

Informed consent shall mean consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Failure to obtain informed consent shall include failure to obtain any express or implied consent for any operation, treatment, or procedure in a case in which a reasonably prudent health care provider in the community or similar communities would have obtained an express or implied consent for such operation, treatment, or procedure under similar circumstances.
A plaintiff seeking to recover damages in an action based on the failure to obtain informed consent must establish by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages sustained. NEB. REV. STAT. §44-2820.
Duty to Obtain Consent Is that of Physician - In Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997), it was held that it was the duty of the physician and not the hospital to obtain a patient's informed consent to a surgical procedure.
Requirement of Expert Testimony - Expert testimony is generally required to prove the standard of care in an informed consent case. Under the professional theory of a physician's duty to disclose the risks of a treatment or procedure, expert testimony is indispensable to establish what information would ordinarily be provided under the prevailing circumstances by physicians in the relevant and similar localities." Cerny v. Longley, 270 Neb. 706, 710-11, 708 N.W.2d 219 (2005); Ecclestion v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1982). Back to top

INSURANCE COVERAGE - The existence of liability insurance coverage is generally inadmissible. NEB. REV. STAT. §27-411.
- In determining whether a particular act of a physician is of a professional nature or a professional service, in the context of a liability insurance policy for professional negligence, a court must look not to the title or character of the party performing to the act, but to the act itself; when a physician's sexual contact with his or her patient is not necessitated by the particular course of medical treatment, the malpractice insurance policy does not provide coverage for the damages sustained by the victim. R.W. v. Schrein, 264 Neb. 818, 652 N.W.2d 574 (2002). Back to top

JOINT AND SERERAL LIABILITY - Like other Nebraska defendants, physicians and hospitals are subject to joint and several liability for economic, but not noneconomic, damages. NEB. REV. STAT. §25-21,185.10. Back to top

JURY INSTRUCTIONS - See, Ourada v. Cochran, 234 Neb. 63, 449 N.W.2d 211 (1989). Back to top

LOCALITY RULE - Where no evidence was adduced or argument made that the standard of care was unique to the locality, the trial court erred in admitting an instruction on the locality rule. Fales v. Books, 5 Neb.App. 372, 558 N.W.2d 831 (1997). Back to top

MALPRACTICE/PROFESSIONAL NEGLIGENCE - Defined in NEB. REV. STAT. §44-2810: Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider has failed to use the ordinary and reasonable care, skill and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities. In determining what constitutes reasonable and ordinary care, skill, and diligence on the part of a health care provider in a particular community, the test shall be that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances. Back to top

MEDICAL TREATISES - Medical treatise not allowed as independent evidence of the opinions and theories advanced by the parties. Strang-Starr v. Byington, 248 Neb. 103, 532 N.W.2d 26 (1995). Back to top

MORBIDITY AND MORTALITY STATUTES - Provide protection to persons providing information used for the purpose of advancing medical research or education or to reduce morbidity or mortality, NEB. REV. STAT. §71-3401 to §71-3403. Back to top

NONDELEGABLE DUTY - The duty of care owed by a physician is nondelegable. Long v. Hacker, 246 Neb. 547 (1994); one with a nondelegable duty may not escape liability by entrusting all or part of the duty to an independent contractor. Breeden v. Anesthesia West, 265 Neb. 356 (2003). Back to top

POSTOPERATIVE CARE - Postoperative treatment and advice by a physician are interwoven and essential parts of the physician-patient relationship. Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964). However, a physician does not have a duty as a matter of law to provide postoperative care or treatment. McLaughlin v. Hellbusch, 256 Neb. 615, 591 N.W.2d 569 (1999). Back to top

PREEXISTING CONDITION - NJI2d 4.09 instructs the jury that where there is evidence that a plaintiff had a preexisting condition, "the defendant is liable only for any damages that you find to be proximately caused by the alleged negligent health care." In additional paragraph to NJI2d 4.09 which reads as follows: "If you cannot separate damages caused by the preexisting condition from those caused by the (occurrence, accident, collision, etc.), then the defendant is liable for all those damages." Back to top

PHYSICIAN-PATIENT PRIVILEGE - Codified at NEB. REV. STAT. §27-504.Back to top

PHYSICIAN-PATIENT RELATIONSHIP - Generally, a physician's duty to exercise the required skill or standard-of-care arises out of the physician-patient relationship. While some courts have held that a physician-patient relationship is not a necessary prerequisite for a medical malpractice action, Nebraska Supreme Court has not so held. Flynn v. Bausch, 238 Neb. 61, 64-5, 469 N.W.2d 125 (1991). Back to top

QUALIFIED HEALTH CARE PROVIDER - Defined in NEB. REV. STAT. §44-2824. Back to top

REPORTING REQUIREMENTS - Settlements and judgments in malpractice actions must be reported to the State department of Health (Title 172, NAC 5), the Director of Insurance (NEB. REV. STAT. §44-2835), and to National Practitioner Data Bank (42 U.S.C. §11101 et. seq.) Back to top

RESIDUAL MALPRACTICE INSURANCE AUTHORITY - Created by NEB. REV. STAT. §44-2837, empowered state to write medical malpractice liability insurance for uninsurable physicians. Back to top

RES IPSA LOQUITUR - In medical malpractice cases brought under the res ipsa loquitur doctrine, negligence may be inferred in three situations without affirmative proof: 1) when the act causing injury is so palpably negligent that it may be inferred as a matter of law, i.e. leaving foreign objects in body or amputating wrong member; 2) when the general experience and observation of mankind teaches that the result would not be expected without negligence; and 3) when proof by experts in an esoteric field create an inference that negligence caused the injuries. Chism v. Campbell, 250 Neb. 921, 553 N.W.2d 741 (1996). A plaintiff in a medical malpractice action may rely upon the theory of res ipsa loquitur where there is exclusive control of an instrumentality and an outcome entitling the plaintiff to rely on the inference of negligence. Swierczek v. Lynch, 237 Neb. 469, 466 N.W.2d 512 (1991). During a surgery, the head surgeon has a nondelegable duty to provide health care and assumes the exclusive control over the patient. Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998). Back to top

RESPONDEAT SUPERIOR - The surgeon in charge of an operation is liable for the negligence of the assistant surgeon. Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997). Back to top

SETTLEMENT OF CLAIM UNDER ACT - NEB. REV. STAT. §44-2833. Back to top

STANDARD OF CARE - Claimant in medical malpractice action must establish the standard of care and deviation from same by defendant physician. Kortus v. Jensen, 195 Neb. 261, 237 N.W.2d 845 (1976). Familiarity with Standard of Care - A physician need not reside in a community to testify concerning standard of care. Wentling v. Jenny, 206 Neb. 335, 293 N.W.2d 76 (1980). Back to top

STAUTUE OF LIMITATIONS
General Rule - Two year statute of limitations for professional negligence. NEB. REV. STAT. §25-222. Continuing Treatment Exception - Statute of limitations begins to run only after treatment (by the same physician) relating to the allegedly deficient care is completed. Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994).
Discovery Exception - Cause of action accrues when there has been discovery of facts constituting the basis of the cause of action or facts sufficient to put a person of ordinary intelligence and prudence on inquiry. Board of Regents v. Wilscam Mullins Birge, Inc., 230 Neb. 675, 433 N.W.2d 478 (1988). A plaintiff seeking to invoke the "discovery" clause to toll the statute of limitations must allege more than a conclusion that the cause of action was not and reasonably could not have been discovered within the two your period. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997).
Doctrine of Fraudulent Concealment - The doctrine of fraudulent concealment estops a defendant from asserting a statute of limitations defense when the defendant has, either by deception or by a violation of a duty, concealed from the plaintiff material facts which prevent the plaintiff from discovery of the malpractice. The failure of a physician to disclose material information that he knows, or in the exercise of reasonable care should have known, results in constructive fraudulent concealment. Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997).
Equitable Estoppel - Payment of patient's medical bills by Methodist Hospital held not to equitably estop defendant from raising statute of limitations defense. Reifschneider v. Nebraska Methodist Hosp., 233 Neb. 695, 447 N.W.2d 622 (1989).
Persons Under Legal Disability - Exempted from the two-year statute pursuant to NEB. REV. STAT. §25-213 until after legal disability is removed. Minors' legal disability is removed when they reach 21 years of age. Id.; Brown v. Kindred 259 Neb. 95, 99-100, 608 N.W.2d 577, 580 (2000).
Tolling of Statute - A claim for malpractice against the hospital accrues when the patient is discharged, and the continuing treatment doctrine does not toll the statute of limitations for subsequent admissions to the hospital. Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001).
Waiver - A statute of limitations defense is waived if not raised in the answer. Welsch v. Graves, 255 Neb. 62, 582 N.W.2d 312 (1998).
Wrongful Death - Two-year statute of limitations under NEB. REV. STAT. 30-810. Back to top

STATUTE OF REPOSE - Ten-year statute of repose in §25-222 held constitutional in Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982). Back to top

SUMMARY JUDGMENT - To be granted where no genuine issue of material fact is presented for determination by the jury. NEB. REV. STAT. §25-1332.
Filing of Affidavit - Filing of affidavit by defendant physician in support of motion shifts burden to plaintiff to produce competent evidence to the contrary. Cerny v. Lonley, 270 Neb. 706, 708 N.W.2d 219 (2005); Hanzlik v. Paustian, 216 Neb. 575, 344 N.W.2d 649 (1984). Back to top

UTILIZATION REVIEW COMMITTEES - Proceedings are privileged pursuant to NEB. REV. STAT. §71-2046 - §71-2048. Back to top

VICARIOUS LIABILITY - A surgeon is not liable for the failure of a hospital employee to execute reasonable instructions which are left for the treatment of patient. Darrah v. Bryan Memorial Hosp., 253 Neb. 710, 571 N.W.2d 783 (1998).
- A surgeon who is in charge of the operation is liable for the negligence of the assistant surgeon. Hawkes v. Lewis, 252 Neb. 178, 560 N.W.2d 844 (1997). Back to top