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The Law of Medical Malpractice in Nebraska:

A Survey of Basic Considerations

Nebraska medical malpractice law is among the most complex legal practice areas. The statutes, case law, and regulations governing medical malpractice law in Nebraska are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Nebraska exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Nebraska by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Nebraska medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both nonlawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Nebraska. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XII examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Nebraska.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Nebraska?
-The Nebraska Hospital-Medical Liability Act
-Required Elements of a Medical Malpractice Claim in Nebraska
-Introduction
-The Basic Elements

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Nebraska
-The Discovery Rule
-Introduction
-The Discovery Rule in Nebraska
-Special Provisions
-Minors
-Mental Disorder
-Final Thoughts

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Nebraska

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Nebraska
-Claims against the State
-Claims against Political Subdivisions
-Good Samaritan Law
-Introduction
-Good Samaritan Law in Nebraska
-Additional Immunities and Limitations on Liability

V. Presuit Requirement—Medical Legal Panel

VI. Required Elements of a Medical Malpractice Complaint
-Basic Elements
-Notice Pleading

VII. Expert Medical Witnesses
-Introduction
-Who Qualifies as An Expert Medical Witness
-Admissibility of Expert Testimony
-Introduction
-Admissibility of Expert Testimony in Nebraska

VIII. Comparative Negligence
-Modified Comparative Negligence with 50% Bar Rule
-Apportionment of Fault with Multiple Defendants

IX. Limitation on Damages

X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Nebraska

XI. Apologies and Gestures of Sympathy
XII. Excess Liability Fund
XIII. Website Disclaimer

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Nebraska?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Nebraska Revised Statutes (“NRS”) § 44-2810 defines medical malpractice as:

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.

The Nebraska Hospital-Medical Liability Act

It is important to note that medical malpractice claims in Nebraska are governed by one of two sets of laws, viz., the Nebraska Hospital-Medical Liability Act (“NHMLA”) or traditional common law. In 1976, the Nebraska Unicameral passed the NHMLA to address the purported healthcare crisis plaguing the state and nation at the time. Gourley v. Nebraska Methodist Health System, Inc., 663 N.W.2d 43, 64 (Neb. 2003). The legislative intent behind the NHMLA is expressed in NRS § 44-2801:

The Legislature finds and declares that it is in the public interest that competent medical and hospital services be available to the public in the State of Nebraska at reasonable costs, and that prompt and efficient methods be provided for eliminating the expense as well as the useless expenditure of time of physicians and courts in nonmeritorious malpractice claims and for efficiently resolving meritorious claims. It is essential in this state to assure continuing availability of medical care and to encourage physicians to enter into the practice of medicine in Nebraska and to remain in such practice as long as such physicians retain their qualifications.

The Legislature further finds that at the present time under the system in effect too large a percentage of the cost of malpractice insurance is received by individuals other than the injured party. The intent of sections 44-2801 to 44-2855 is to serve the public interest by providing an alternative method for determining malpractice claims in order to improve the availability of medical care, to improve its quality and to reduce the cost thereof, and to insure the availability of malpractice insurance coverage at reasonable rates.

Applicability of the NHMLA is the default treatment for patients in the state, so unless otherwise noted, all discussions in this article pertain to medical malpractice claims subject to the NHMLA.

For the NHMLA to apply, the healthcare provider must be “qualified,” and the patient must be subject to the NHMLA. Providers qualify by (1) filing proof of financial responsibility with the Director of the Nebraska Department of Insurance (i.e., providing proof of insurance coverage of at least $500,000 per occurrence, among other requirements), and (2) paying a surcharge to the state (essentially, insurance premiums to participate in the NHMLA). Patients are presumed to be covered by the NHMLA unless they file an election to the contrary with the Director of the Nebraska Department of Insurance prior to any treatment and notify the healthcare provider of the election.

Required Elements of a Medical Malpractice Claim in Nebraska

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Nebraska law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Nebraska medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

There are four basic elements of a compensable medical malpractice claim that must all be proven by the plaintiff. Thone v. Regional West Medical Center, 745 N.W.2d 898, 903 (Neb. 2008).

  1. Standard of care—applicable standard of care, recognized by the law, requiring the healthcare provider to conform to certain conduct, e., duty;
  2. Breach—a failure on the healthcare provider’s part to conform to the standard required or deviation from the standard of care, e., a breach;
  3. Causation—the departure or breach of the applicable standard of care proximately caused the alleged harm; and
  4. Damages—actual loss or damage sustained by the patient.

According to the Nebraska Supreme Court, the plaintiff has the burden of proof in establishing, by a preponderance of the evidence, all the basic elements of a compensable medical malpractice claim. Doe v. Zedek, 587 N.W.2d 885, 891 (Neb. 1999).

The NHMLA sets forth the general standard of care in NRS § 44-2810 as follows:

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.

The Nebraska Supreme Court confirmed the foregoing as the applicable standard of care for medical malpractice claims by defining it as “the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his or her profession engaged in a similar practice in his or her or in similar localities.” Murray v. UNMC Physicians, 806 N.W.2d 118, 125 (Neb. 2011).

Notice that both the statute and the Supreme Court articulate the Locality Rule as a component of the standard of care. Green v. Box Butte General Hospital, 818 N.W.2d 589, 597 (Neb. 2012). Basically, the Locality Rule holds that the standard of care is based upon similarly situated practitioners in similar localities to where the defendant practices, rather than a national standard; that is, a practitioner in rural Nebraska is not necessarily held to the same standard of care as a practitioner in a major metropolitan area like New York City.

The Nebraska Supreme Court instructed that the “plaintiff patient in a medical malpractice action must provide proof of the generally recognized medical standard involved, that there was a deviation from that standard by the physician or medical care provider, and that such deviation was the proximate cause of the plaintiff’s injury.” Id. The Court explained that as “a general matter, expert testimony is required to identify the applicable standard of care.” Thone v. Regional West Medical Center, 745 N.W.2d 898, 903 (Neb. 2008).

Interestingly, the Nebraska Supreme Court acknowledged that “a physician’s own admission may suffice to establish the standard of care or proximate cause.” Id. at 907. In addition, the general rule that expert testimony is required to establish the applicable standard of care and proximate cause does not apply to the breach or deviation element of a medical malpractice claim. Id. According to the Supreme Court:

The rationale is that the standard of care and proximate causation tend to involve highly technical matters outside the knowledge of the average person without specialized training. As such, other than a situation in which the applicable standard of care or causation are sufficiently obvious that they may be inferred without proof, establishing those two elements either requires expert testimony or, in the case of the standard of care….

In contrast, however, identifying a deviation from an established standard of care has the potential to be much more straightforward. In many cases, proof that the physician deviated from an established standard may require nothing more than some credible testimony from a lay witness that the physician did or did not conform to the standard. [internal citations and quotation marks omitted] [emphasis in original] Id.

Expert testimony is not always required even to establish the applicable standard of care. The Supreme Court noted, “[w]e have long recognized that 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.” [internal quotation marks omitted] Id. The Court added: “This common-knowledge exception is limited to cases of extreme and obvious misconduct. Examples include failure to remove a surgical instrument from a patient’s body following a procedure or amputating an incorrect limb.” Id.

With respect to the element of proximate cause, the Nebraska Supreme Court instructed:

In the medical malpractice context, the element of proximate causation requires proof that the physician’s deviation from the standard of care caused or contributed to the injury or damage to the plaintiff. Expert testimony is almost always required to prove proximate causation. Nevertheless, as with the standard of care, the common-knowledge exception applies to proximate causation in professional negligence cases. Thus causation 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. We note, however, that whether a causal link is sufficiently obvious that it may be inferred under the common-knowledge exception is a separate inquiry from whether a defendant’s negligence is sufficiently plain that it, too, may be inferred by laypersons. As such, it does not necessarily follow that causation can be inferred pursuant to the common-knowledge exception simply because a physician’s negligence might be so inferred. Id. at 908.

The Supreme Court explained that a “defendant’s negligence is … not actionable unless it is a proximate cause of the plaintiff’s injuries or is a cause that proximately contributed to them.” Id. The Court added: “In other words, proximate causation requires proof necessary to establish that the physician’s deviation from the standard of care cause or contributed to the injury or damage to the plaintiff.” Id.

A thorough examination of proximate cause is well beyond the scope of this article. However, the Nebraska Supreme Court’s general overview of the topic is still instructive. In Kozicki v. Dragon, 583 N.W.2d 336, 340 (Neb. 1998), the Supreme Court provided the following summary:

A defendant’s negligence is not actionable unless it is a proximate cause of the plaintiff’s injuries or is a cause that proximately contributed to them.

There are three basic requirements that must be met to establish causation: (1) that “but for” the defendant’s negligence, the injury would not have occurred; (2) that the injury is the natural and probable result of the negligence; and (3) that there is no efficient intervening cause. Determination of causation is ordinarily a matter for the trier of fact.

An efficient intervening cause is a new, independent force intervening between the defendant’s negligent act and the plaintiff’s injury by the negligence of a third person who had full control of the situation, whose negligence the defendant could not anticipate or contemplate, and whose negligence resulted directly in the plaintiff’s injury. Thus, an intervening act that is reasonably foreseeable by the defendant does not preclude the defendant’s liability. The question whether the negligence of a third person constitutes an intervening cause is a question of fact. [internal citations omitted.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case. In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations. Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard. In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended. Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period. For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time. The deadline to carry out a specified action under a statute of limitations can also be extended. For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Nebraska

In general, medical malpractice claims in Nebraska are subject to a two-year statute of limitations contained in NRS § 25-222. The statute reads, in pertinent part, as follows: “Any action to recover damages based on alleged professional negligence … in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action….” Id.

Notice that under the express terms of the statute the two-year limitations period begins to run on the date of the alleged negligent act or omission. The Nebraska Supreme Court instructed that “Nebraska follows the occurrence rule, under which a professional negligence suit accrues at the time the act or omission in rendering or failing to render professional services takes place.” Gering-Fort Laramie Irrigation District v. Baker, 612 N.W.2d 897, 902 (Neb. 2000).

The Supreme Court explained that the “point at which a statute of limitations begins to run must be determined from the facts of each case, and the decision of the district court on the issue of the statute of limitations normally will not be set aside by an appellate court unless clearly wrong.” Bellino v. McGrath North Mullin & Kratz, PC, 738 N.W.2d 434, 439 (Neb. 2007).

To help blunt the harshness of the Occurrence Rule, Nebraska courts have adopted the Continuing Treatment Doctrine for medical malpractice cases. The Nebraska Supreme Court explained:

In fact, Nebraska has merged this doctrine with the occurrence rule. In Healy v. Langdon, 245 Neb. 1, 5, 511 N.W.2d 498, 501 (1994), we held: “In medical malpractice cases, the period of limitations or repose begins to run when the treatment rendered after and relating to the allegedly wrongful act or omission is completed.” Casey v. Levine, 621 N.W.2d 482, 487 (Neb. 2001).

Application of the Continuing Treatment Doctrine extends the commencement of the two-year limitations period from the date of the negligence to the date the medical treatment is completed. The Supreme Court discussed its rationale for adopting the Doctrine in Williams v. Elias, 1 N.W.2d 121, 124 (Neb. 1941):

[I]t is just to the physician and surgeon that he [or she] may not be harassed by premature litigation instituted in order to save the right of the patient in the event there should be substantial malpractice. The physician and surgeon must have all reasonable time and opportunity to correct the evils which made the observation and treatment necessary and to correct the ordinary and usual mistakes incident to even skilled surgery. The [continuing treatment exception] is conducive to that mutual confidence which is highly essential in the relation between surgeon and patient. The treatment and employment should be considered as a whole, and if there occurred therein malpractice, the statute of limitations should begin to run when the treatment ceased.

It is often the case that a single day is the difference between whether a plaintiff may commence an action or is time-barred because the limitations period has expired. Miscalculating when the last day of the limitations period is can literally result in an injured patient, even with a meritorious claim, being denied the chance at any recovery. As such, it is critical to understand how time is computed under Nebraska law in calculating the exact date the applicable limitations period ends. NRS § 25-2221 sets forth how time is calculated. Thus, to determine how holidays, weekends, the first and last day of the period, etc. are handled for purposes of computing time, carefully review the statute.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule. In general, the Discovery Rule is an exception to the standard statute of limitations. It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff. Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision. The rationale underlying the Discovery Rule is to prevent the statute of limitations barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Nebraska

Nebraska recognizes the Discovery Rule for medical malpractice claims. NRS § 25-222. In fact, it is integrated into the standard statute of limitations itself. The statute states: “Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.” [emphasis in original] Id.

The Nebraska Supreme Court explained the Discovery Rule as it exists in Nebraska as follows:

A plaintiff may be relieved of the strictures of filing within 2 years after the negligent act or occurrence by virtue of the “discovery exception.” The discovery exception permits an action to be commenced within 1 year from the earlier of the date of discovery of the cause of action or the date of discovery of facts which would reasonably lead to such discovery. The discovery exception is applicable only where the cause of action is not discovered and could not have reasonably been discovered during the 2-year limitation period of § 25-222, which 2-year period commences with the negligent act or omission. However, if facts are found that constitute the basis of a cause of action within 2 years from the alleged act of negligence, the discovery exception to the statute of limitations is inapplicable….

“Discovery,” in the context of statutes of limitations, refers to the fact that one knows of the existence of an injury, and it is not necessary that a plaintiff have knowledge of the exact nature or source of the problem, but only that a problem existed. “Discovery of a cause of action” occurs when there is knowledge of facts constituting the basis of the cause of action or awareness of the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery of the cause of action. In a professional negligence case, “discovery of the act or omission” occurs when the party knows of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the knowledge of facts constituting the basis of the cause of action. [internal citations omitted] Gering-Fort Laramie Irrigation District v. Baker, 612 N.W.2d 897, 902-903 (Neb. 2000).

Special Provisions

Minors

Minors are subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims. NRS § 25-213 provides: “[I]f a person entitled to bring any action mentioned in this chapter … is, at the time the cause of action accrued, within the age of twenty years … every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability is removed.”

The Nebraska Supreme Court held that the foregoing language means that for purposes of the statute “within the age of 20 years” means until the plaintiff turns 21 years old. Brown v. Kindred, 608 N.W.2d 577, 580 (Neb. 2000). Accordingly, the two-year limitations period begins to run when the minor-plaintiff turns 21.

Mental Disorder

Individuals who are deemed to be suffering from a mental disorder at the time their cause of action accrued are also subject to a different limitations period than the standard two-year period that normally applies to medical malpractice claims. NRS § 25-213 provides: “if a person entitled to bring any action … is, at the time the cause of action accrued … a person with a mental disorder … every such person shall be entitled to bring such action within twenty years from the accrual thereof but in no case longer than ten years after the termination of such disability.”

Final Thoughts

The application of Nebraska’s medical malpractice statute of limitations is extremely nuanced, technical, and fact-driven. The rules governing this area of the law can be overwhelmingly complex and confusing for anyone other than an experienced Nebraska medical malpractice attorney. This is especially true when the statute of repose is also implicated (see next Section of this article). In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact a Nebraska attorney who specializes in medical malpractice law at the earliest possible opportunity.

III. Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations. Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed. If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them. The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes. A statute of limitations is generally triggered when the cause of action accrues, i.e., when all essential elements are present and a claim becomes legally actionable.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued. In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury. The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued. Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists. A statute of repose serves as an absolute bar to recovery. Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations. The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose. In fact, even many practicing lawyers do not fully appreciate the critical differences between the two. This is likely due to the fact that statutes of repose are relatively rare. Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Nebraska

Nebraska has a statute of repose applicable to medical malpractice claims that is contained in the standard statute of limitations itself. NRS § 25-222 states “that in no event may any action be commenced to recover damages for professional negligence … in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.” Accordingly, a medical malpractice claim must be commenced within 10 years of the date of alleged negligence, or the claim will be forever time-barred.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them. The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong. As a result, there could be no valid claim against a government entity. The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state. Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Nebraska

Claims against the State

Tort claims against the state, any state agency, or any employee of the state are permitted “only to the extent” provided by the State Tort Claims Act. NRS § 81-8,209. The Tort Claims Act and the procedures provided therein “shall be used to the exclusion of all others.” Id.

Under the Act, a tort claim means:

any claim against the State of Nebraska for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of any employee of the state, while acting within the scope of his or her office or employment, under circumstances in which the state, if a private person, would be liable to the claimant for such damage, loss, injury, or death but does not include any claim accruing before January 1, 1970, any claim against an employee of the state for money only on account of damage to or loss of property or on account of personal injury or death caused by the negligent or wrongful act or omission of the employee while acting within the scope of his or her employment occurring on or after August 25, 1989…. NRS § 81-8,210(4).

According to the Nebraska Supreme Court, the Act “provides for liability on the part of the State under the same circumstances under which a private person would be liable….” Cortes v. State, 218 N.W.2d 214, 216 (Neb. 1974). Under the Act, “every tort claim permitted … shall be forever barred unless within two years after such claim accrued the claim is made in writing to the Risk Manager in the manner provided by such act.” NRS § 81-8,227(1).

Claims against Political Subdivisions

In general, most medical malpractice claims against government defendants involve political subdivisions such as villages, cities, counties, municipalities, and other units of local government. Claims against these defendants are governed by the Nebraska Political Subdivisions Tort Claims Act. NRS § 13-902.

The Nebraska Supreme Court stated that the Act “is not simply a statutory remedy, but is also a waiver of sovereign immunity.” Keller v. Tavarone, 628 N.W.2d 222, 230 (Neb. 2001). The Supreme Court instructed that the Act specifically applies to medical malpractice claims. Id. at 232. The Court further instructed that both the Act and the Nebraska Hospital-Medical Liability Act apply to claims against the political subdivisions and their employees, and plaintiffs are “required to comply with both the NHMLA and the Tort Claims Act.” Id. at 231. Complying with the numerous procedural requirements of both statutes is an intricate undertaking. The Supreme Court provided guidance by outlining the process of commencing and pursuing a claim under the statutes as follows:

The Tort Claims Act requires that a claim must be submitted to a political subdivision within 1 year after such claim accrued, and no suit will be permitted under the Tort Claims Act until the political subdivision makes final disposition of the claim, except that a claimant may withdraw the claim and bring suit if the political subdivision does not make final disposition of the claim within 6 months after the claim is filed. See, § 13-906; § 13-919(1). In short, a litigant must first file a claim, and then may bring suit only after the claim is disposed of or withdrawn.

The language of § 13-919(4) specifically provides an extension for the time to “begin suit” under the Tort Claims Act— not the time to file a claim. The statutory language contemplates that a claim under the Tort Claims Act must be filed and disposed of or withdrawn prior to presentation of the proposed petition to a medical review panel, or the waiver of a medical review panel, under § 44-2840.

In other words, the procedure the statutes required Keller to follow was, first, to file a claim with the appropriate officer of the political subdivision, pursuant to § 13-905, within 1 year of the accrual of her claim. After the claim was disposed of or withdrawn, pursuant to § 13-906, Keller would have been permitted to either submit a proposed petition to a review panel, or waive such review, pursuant to § 44-2840(3) and (4). If she had presented the petition to a review panel, she would have had an extra 90 days, after the issuance of the opinion of the review panel, to file suit under the Tort Claims Act. See § 13-919(4). If she had waived the panel review, the action under the Tort Claims Act would have been filed directly in the district court. See, § 44-2840(4); § 13-907.

The operation of the NHMLA, however, did not excuse Keller from compliance with the requirement under the Tort Claims Act that the claim be presented to the political subdivision prior to filing suit. As Keller concedes that no claim was filed with the political subdivision prior to filing suit, her petition was properly dismissed pursuant to § 13-920(1). Id. at 233.

Under the Political Subdivisions Tort Claims Act, the total amount recoverable for claims arising out of an occurrence is limited to:

  1. $1,000,000 for any person for any number of claims arising out of a single occurrence; and
  2. $5,000,000 for all claims arising out of a single occurrence.NRS § 13-926.

Good Samaritan Law

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency. While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so. It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws. While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency. Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation. As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Law in Nebraska

Nebraska has enacted a general Good Samaritan law that is codified in NRS § 25-21,186. The statute provides that:

-No person who renders emergency care at the scene of an accident or other emergency gratuitously, shall be held liable for any civil damages as a result of any act or omission by such person in rendering the emergency care or as a result of any act or failure to act to provide or arrange for medical treatment or care for the injured person.

Notably, Nebraska’s Good Samaritan law does not contain express language excluding conduct that constitutes gross negligence or willful or wanton conduct from the immunity granted under the law as nearly every other states’ Good Samaritan law does. It does not appear that the Nebraska Supreme Court has addressed this issue as of the date of this article since the only reported case in which the Court discusses the statute pertains to whether a police officer is entitled to immunity under the statute. The Court ruled that police officers are not covered by the statute in Drake v. Drake, 618 N.W.2d 650, 659 (Neb. 2000).

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Nebraska Revised Statutes. Many of the statutes medical malpractice plaintiffs are most likely to encounter are contained in Chapter 25—Courts; Civil Procedure.

V. Presuit Requirement—Medical Review Panel

No claim against a healthcare provider covered by the Nebraska Hospital-Medical Liability Act may be filed in court unless the plaintiff’s proposed complaint has first been presented to a Medical Review Panel, and it has rendered an opinion as to the claims. NRS § 44-28040(2). The Medical Review Panel statute reads:

  1. Provision is hereby made for the establishment of medical review panels to review all malpractice claims against health care providers covered by the Nebraska Hospital-Medical Liability Act in advance of filing such actions.
  2. No action against a health care provider may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to section 44-2841 and an opinion has been rendered by the panel.
  3. The proceedings for action by the medical review panel shall be initiated by the patient or his or her representative by notice in writing with copy of a proposed complaint served upon the director personally or by registered or certified mail. Such notice shall designate the claimant’s choice of the physician to serve on the panel, claimant’s suggestion of an attorney to serve, and the court where the action shall be filed, if necessary.
  4. The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court. If the claimant waives the panel review, the claimant shall serve a copy of the complaint upon the director personally or by registered or certified mail at the time the action is filed in court.

The Nebraska Supreme Court described the Medical Review Panel as follows:

A reading of the Nebraska act demonstrates that the review panel’s sole function is to provide an expert opinion based on evidence submitted to it by the parties. It is not an arbitration board and has no authority to dispose of the action. The Nebraska act should promote an early disposition of many cases by a voluntary settlement. It brings the parties together after the facts are available to both sides and both sides have heard the opinion voiced by the review panel. This in effect is in the nature of a pretrial settlement conference. It in no way encroaches on the powers or prerogatives of the court. Prendergast v. Nelson, 256 N.W.2d 657, 666-667 (Neb. 1977).

Referencing the applicable statutes, the Supreme Court described the composition and proceedings of the Panel as follows:

The panel consists of one attorney, who acts in an advisory capacity without vote, and three physicians, unless the health care provider is a hospital, when provision is made for a fourth panelist. Each party to the action shall have the right to select one physician, and upon selection such physician shall be required to serve. The two physicians thus selected shall select the third physician panelist. In the case of a hospital defendant, the fourth panelist shall be a hospital administrator selected by the hospital. The panel has the duty to “express its expert opinion in writing to each of the parties as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint and as to the issue of damages proximately caused by failure to act in accordance with such standards.”

Section 44-2843(3), R.S.Supp., 1976, provides: The panel shall, within thirty days, render one or more of the following expert opinions which shall be in writing and mailed to each of the parties:

  • The evidence supports the conclusion that the defendant failed to comply with the appropriate standard of care as charged in the complaint in specified particulars;
  • The evidence supports the conclusion that the defendant involved met the applicable standard of care required under the circumstances; or
  • There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury in specified particulars.

The report, or any minority report, of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such report shall not be conclusive and either party shall have the right to call any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify. Id. at 663.

VI. Required Elements of a Medical Malpractice Complaint

Basic Elements

In Nebraska, there is only one recognized form of action, and it is known as a “civil action.” NRS § 25-101. The Nebraska Court Rules of Pleading in Civil Cases “govern pleading in civil action filed on or after January 1, 2003.” Rule 6-1101. The Rules “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” Id.

Under Nebraska law, a “civil action must be commenced by filing a complaint in the office of the clerk of a proper court.” NRS § 25-501. Basically, a complaint is a document that contains a short statement of the facts describing the plaintiff’s claim that entitles the plaintiff to relief and a demand for judgment granting that relief. A complaint is one of the authorized types of pleadings provided for in Rule 6-1107. Under NRS § 25-217, an “action is commenced on the date the complaint is filed with the court.”

Rule 6-1108(a) requires that a complaint that states a claim for relief must contain: (1) a caption, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Rule 6-1108(a) also sets forth the following: “Relief in the alternative or of several different types may be demanded. If the recovery of money be demanded, the amount of special damages shall be stated but the amount of general damages shall not be stated; and if interest thereon be claimed, the time from which interest is to be computed shall also be stated.”

Rule 6-1108(e). requires that each allegation in the complaint “be simple, concise, and direct” and that no “technical forms of pleadings or motion are required.” The complaint “may set forth two or more statements of a claim … alternately or hypothetically….” Id. The plaintiff “may also state as many separate claims or defenses as the party has regardless of consistency and whether based on legal or equitable grounds.” Id.

The complaint must contain a caption “setting forth the name of the court, the title of the action, the file number, and a designation” as a complaint. Rule 6-1110(a). In addition, the title of the action in the complaint “shall include the names of all the parties….” Id.

The complaint must state its claims “in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances….” Rule 6-1110(b). “Each claim founded upon a separate transaction or occurrence … shall be stated in a separate count … whenever a separation facilitates the clear presentation of the matters set forth.” Id.

The complaint “must be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party.” Rule 6-1111(a). The complaint “shall state the signer’s address, telephone number, and e-mail address, if any.” Id.

Notice Pleading

Nebraska is a notice pleading state. Mahmood v. Mahmud, 778 N.W.2d 426, 431 (Neb. 2010). The Nebraska Supreme Court explained that “the new rules for notice pleading” apply to all civil actions filed on or after January 1, 2003. Kellogg v. Nebraska Department of Correctional Services, 690 N.W.2d 574, 577 (Neb. 2005). The Supreme Court described the state’s notice pleading requirements as follows:

Under the liberalized rules of notice pleading, a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief. The party is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted. The rationale for this liberal notice pleading standard is that when a party has a valid claim, he or she should recover on it regardless of a failure to perceive the true basis of the claim at the pleading stage, provided always that a late shift in the thrust of the case will not prejudice the other party in maintaining a defense upon the merits. [internal citations omitted] Davio v. Department of Health and Human Services, 786 N.W.2d 655 661-662 (Neb. 2010).

Fact pleading is the other (less common) system of pleading. For example, Oregon is a fact (or code) pleading state. Davis v. Tyee Industries, Inc., 668 P.2d 1186, 1193 (Or. 1983). According to the Oregon Supreme Court, “Oregon has been a code pleading state since statehood. The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure” in Rule 18(A). Id. at 1191-1192. Essentially, fact pleading requires the plaintiff to allege specific facts that support his or her claim and not simply recite the generic elements of a cause of action in general terms.

The Federal Rules of Civil Procedure used in the Federal court system require notice pleading, which accounts for it being the more widely used pleading system in the country.

VII. Expert Medical Witnesses

Introduction

The general rule under medical malpractice law holds that expert witnesses are nearly always required. The medical issues and related facts are generally far too complex for nonmedical professionals to understand without the aid of expert medical witnesses. As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization. Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Who Qualifies as An Expert Medical Witness

By statute, Nebraska sets forth the basic requirement for determining whether a potential expert witness is qualified to provide opinion testimony in a medical malpractice case. Nebraska Evidence Rule 702 provides that a witness can be qualified as an expert “by knowledge, skill, experience, training, or education….” The Nebraska Supreme Court stated that “[b]efore admitting expert opinion testimony under Neb. Evid. R. 702, a trial court must determine whether the expert’s knowledge, skill, experience, training, and education qualify the witness as an expert.” King v. Burlington Northern Santa Fe Railway Company, 762 N.W.2d 24, 42 (Neb. 2009).

The Nebraska Court of Appeals observed that there “is no exact standard for determining when one qualifies as an expert, and a trial court’s factual finding that a witness qualifies as an expert will be upheld on appeal unless clearly erroneous.” Hoffart v. Hodge, 609 N.W.2d 397, 406 (Neb. Ct. App. 2000). The Court added:

It is within the trial court’s discretion to determine if there is sufficient foundation for a witness to give his or her opinion about an issue in question. A trial court’s ruling in receiving or excluding an expert’s opinion which is otherwise relevant will be reversed only when there has been an abuse of discretion. Whether one qualifies as an expert depends on the factual basis or the reality underlying the witness’ claim to expertise rather than upon a title. Id.

In Nebraska medical malpractice cases, there is no requirement that an expert have the same title or work in the same practice area or specialization as the defendant. Ashby v. First Data Resources, Inc., 497 N.W.2d 330, 336 (Neb. 1993). In Ashby, the Nebraska Supreme Court rejected the argument that a proposed expert witness was not qualified to testify because the expert was a general practitioner offering testimony against a specialist. Id. The Court explained:

Testimony of qualified medical doctors cannot be excluded simply because they are not specialists in a particular school of medical practice. Instead, experts or skilled witnesses will be considered qualified if, and only if, they possess special skill or knowledge respecting the subject matter involved so superior to that of persons in general as to make the expert’s formation of a judgment a fact of probative value. Id. at 335-336.

Admissibility of Expert Testimony

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries. Simply put, courts must guard against allowing so-called junk science into evidence. To achieve that objective, most states[1] follow, to some extent, one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.
Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle. The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Expert Testimony in Nebraska

Nebraska Evidence Rule 702 sets forth the basic requirements for the admissibility of expert witness testimony. It states: “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 thereto in the form of an opinion or otherwise.”

The Nebraska Supreme Court adopted the Daubert standard in 2001 in Schafersman v. Agland Coop, 631 N.W.2d 862, 876 (Neb. 2001). In Schafersman, the Court announced: “We therefore hold prospectively, for trials commencing on or after October 1, 2001, that in trial proceedings, the admissibility of expert opinion testimony under the Nebraska rules of evidence should be determined based upon the standards first set forth in” Daubert. Id. The Court then provided extremely detailed guidance for trial courts to follow during the admissibility determination in light of the newly adopted Daubert standard.

Specifically, we hold that in those limited situations in which a court is faced with a decision regarding the admissibility of expert opinion evidence, the trial judge must determine at the outset, pursuant to Neb. Evid. R. 702, whether the expert is proposing to testify to (1) scientific, technical, or other specialized knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue….

In so holding, we also note that once the validity of the expert’s reasoning or methodology has been satisfactorily established, any remaining questions regarding the manner in which that methodology was applied in a particular case will generally go to the weight of such evidence. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof remain the traditional and appropriate means of attacking evidence that is admissible, but subject to debate….

In evaluating expert opinion testimony under Daubert, where such testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question, the trial judge must determine whether the testimony has a reliable basis in the knowledge and experience of the relevant discipline. In determining the admissibility of an expert’s testimony, a trial judge may consider several more specific factors that Daubert said might “bear on” a judge’s gatekeeping determination. These factors include whether a theory or technique can be (and has been) tested; whether it has been subjected to peer review and publication; whether, in respect to a particular technique, there is a high known or potential rate of error; whether there are standards controlling the technique’s operation; and whether the theory or technique enjoys general acceptance within a relevant scientific community. These factors are, however, neither exclusive nor binding; different factors may prove more significant in different cases, and additional factors may prove relevant under particular circumstances….

An expert’s opinion need not be expressed with reasonable certainty within the expert’s field of expertise, but may be expressed with reasonable probability. The expert’s opinion must be sufficiently definite and relevant to provide a basis for the fact finder’s determination of an issue or question. Expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. When an expert’s opinion is mere speculation or conjecture, it is irrelevant. Whether an expert’s opinion is too speculative to be admitted is a question for the trial court’s discretion….

Thus, in applying the Daubert standards, 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. Reasonable differences in scientific evaluation are not a basis for exclusion of an expert witness’ opinion….

Exercise of the Daubert gatekeeping responsibility requires a balance between rigorous examination of the reliability of the principles and methodology of expert witnesses, and acceptance of reasonable disagreement regarding such principles and methods and the conclusions that they generate…. [internal citations omitted] Id. at 876-878.

VIII. Comparative Negligence

Modified Comparative Negligence with 50% Bar Rule

By statute, Nebraska uses modified comparative negligence with a 50% bar rule. NRS § 185.09. The statute provides that a plaintiff’s contributory negligence does not bar recovery, stating:

Any contributory negligence chargeable to the claimant shall diminish proportionately the amount awarded as damages for an injury attributable to the claimant’s contributory negligence but shall not bar recovery, except that if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought, the claimant shall be totally barred from recovery. Id.

Notice that the plaintiff may recover damages so long as his or her proportionate share of negligence is not equal to or greater than the defendant or defendants being sued by the plaintiff—the 50% bar rule. If the plaintiff’s percentage share of determined fault is equal to or greater than the total of the defendant or defendants (i.e., plaintiff’s contributory negligence is determined to be 50% or greater), then the plaintiff is not entitled to any recovery.

The foregoing language in the above quoted portion of the statue is the codification of the 50% bar rule, which holds that if the plaintiff’s allocated percentage of fault is 50% or greater he or she is completely barred from recovering any damages. For example, assume a plaintiff is determined to be 49% at fault, and the damage award is $100,000. The amount to which the plaintiff is entitled is $49,000 because the plaintiff’s allocated percentage share of fault, i.e., 49% or $49,000, is deducted from the damage award. If the plaintiff were determined to be 50% at fault, he or she would not be entitled to any recovery because Nebraska imposes the 50% bar rule.

The statute requires that the “jury shall be instructed on the effects of the allocation of negligence.” Id. The Nebraska Supreme Court explained:

In enacting § 25-21,185.09, the Nebraska Legislature has required that juries be instructed on the effects of the allocation of negligence. The Nebraska Legislature has chosen to require that the jury be fully and openly informed before making its determinations with respect to contributory negligence and the attendant allocation of negligence. In Nebraska, the trial court must inform the jury that the ultimate outcome of a 50-50 allocation of negligence between a plaintiff and a defendant will be a verdict in favor of the defendant; the plaintiff will recover nothing. A jury cannot be fully and openly informed before making its determination when it does not receive this proper ultimate outcome charge. Russell v. Stricker, 635 N.W.2d 734, 739-740 (Neb. 2001).

Comparative negligence is a fault and damages allocation system. Under Nebraska’s version, fault is determined and apportioned among the plaintiff and all defendants to the action, and how much compensation the plaintiff may recover is limited by his or her allocated relative share of fault for causing the injury. NRS § 185.09. Fault is determined and apportioned among the plaintiff and all defendants by the trier of fact, and the amount of damages the plaintiff can recover is limited by his or her relative share of fault. The statute reads: “but any damages allowed shall be diminished in the proportion to the amount of negligence or comparative responsibility attributable to the person recovering.” Id.

Apportionment of Fault with Multiple Defendants

When multiple defendants are involved, there are two different ways in which the degree of fault comparison can be applied. Each approach can lead to vastly different results. The individual comparison approach compares the plaintiff’s proportion of fault against each defendant individually, and the plaintiff may recover damages against only the defendants whose individual proportion of fault is greater than the plaintiff’s. For example, in a scenario where the plaintiff is deemed to be 40% at fault and two defendants are each apportioned 30% of the fault, the plaintiff is barred from any recovery. Under the individual comparison approach, the plaintiff’s share of fault for the injury is greater than either defendant individually.

On the other hand, the combined comparison approach permits the plaintiff to recover as long as his or her apportioned share of negligence is equal to or less than the combined negligence of all the defendants against whom recovery is sought. In the above example, the plaintiff would be entitled to recover damages from both defendants since his or her apportioned share of negligence is less than the combined share of the two defendants. Clearly, there is a stark contrast in the results of the two approaches with plaintiffs obviously favoring the combined comparison approach.

Fortunately for plaintiffs pursuing medical malpractice claims, Nebraska follows the combined comparison approach. The statute states that a plaintiff is barred from any recovery “if the contributory negligence of the claimant is equal to or greater than the total negligence of all persons against whom recovery is sought.” NRS § 185.09. This language provides for the combined comparison approach.

Under Nebraska law, the plaintiff in the foregoing example would be entitled to recover damages since the plaintiff’s share of negligence is less than the defendants’ aggregate share on a combined comparison basis (40% versus 60% for the defendants).

IX. Limitation on Damages

Nebraska law imposes a limit on the total amount of damages that can be recovered in a medical malpractice action. NRS § 44-2825. The state’s damage cap is relatively unusual in that it is not limited to noneconomic damages such as pain and suffering and emotional distress; rather, it also applies to economic damages such as medical expenses and loss of earnings. Id. The damage cap applies to any and all healthcare providers with respect to a single occurrence of injury or death as a result of medical malpractice. Id. The statutory damage cap is $2,250,000 for any occurrence after December 31, 2014. Id. The cap is $1,750,000 for any occurrence after December 31, 2003.

Despite the harshness of the statute, the Nebraska Supreme Court held that it is constitutional in the 2003 case Gourley v. Methodist Health System, 663 N.W. 2d 43, 78 (Neb. 2003). In Gourley, the plaintiffs argued that the statutory damage cap violates principles of (1) special legislation, (2) equal protection, (3) open courts and right to remedy, (4) right to a jury trial, (5) taking of property, and (6) separation of powers based on the state Constitution. Id. at 64. The Supreme Court rejected every challenge to the statute’s constitutionality. Id. at 64-78. In discussing the rationale for the passage of the Act in which the statute in question was enacted, the Court observed:

There are substantial reasons for legislative discrimination in regard to this field. We have seen in recent years the growth of malpractice litigation to the point where numerous insurance companies have withdrawn from this field. Insurance rates are practically prohibitive so that many professional people must either remain unprotected or pass the insurance charges along to their patients and clientele in the form of exorbitant fees and charges. This unduly burdens the public which requires professional services. Id. at 67.

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases. That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award. If there is no recovery, then the attorney does not receive any payment as a legal fee. Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources. Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option. Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive. Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee. Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions. Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Nebraska

Nebraska law does not impose any generally applicable caps on attorney fees specific to medical malpractice cases. However, there are important limitations on fees designed to protect all clients of which plaintiffs with a medical malpractice claim should be aware.

First, in any medical malpractice case, NRS § 44-2834(1) provides that “upon motion of either party the court shall review the attorney’s fees incurred by that party and allow such compensation as the court shall deem reasonable.” The Nebraska Supreme Court explained that the statute “provides that all attorneys’ fees are subject to review by the court, but since attorneys are officers of the court this is not out of line with existing practice.” Prendergast v. Nelson, 256 N.W.2d 657, 669 (Neb. 1977). In response to a challenge to the statute, the Supreme Court announced “we hold the Legislature was within its authority in requiring that fee arrangements be subject to review by the courts.” Id. at 670. Accordingly, although Nebraska does not have a statutory fee cap in place, medical malpractice plaintiffs are protected by the prospect of court review of their fee arrangement.

Second, attorney fees in medical malpractice cases are subject to the reasonableness standard that governs all fee arrangements in Nebraska under Rule 3-501.5 of the Nebraska Rules of Professional Conduct. Rule 3-501.5(a) states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

  • the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  • the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  • the fee customarily charged in the locality for similar legal services;
  • the amount involved and the results obtained;
  • the time limitations imposed by the client or by the circumstances;
  • the nature and length of the professional relationship with the client;
  • the experience, reputation, and ability of the lawyer or lawyers performing the services; and
  • whether the fee is fixed or contingent.

Comment 1 to the Rule explains that the eight enumerated factors are not exclusive, and each factor will not be relevant in all cases.

Contingent fee arrangements are expressly permitted by Rule 3-501.5(c), subject to the requirements described therein. A contingent fee arrangement must be in writing and signed by the client, and it must “state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal….” Id. It must also explain what “litigation and other expenses [are] to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated.” Id. The agreement must “clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.” Id. Finally, at the end of the case, “the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.” Id.

XI. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit. This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Nebraska is among the states that have enacted an “I’m Sorry” law. It is contained in NRS § 27-1201(1) and is specific to healthcare providers. The statute shields healthcare providers who communicate statements of apology, sympathy, or similar sentiments made by a healthcare provider to the alleged victim or relative following an unanticipated outcome of medical care. The statute reads as follows:

In any civil action brought by an alleged victim of an unanticipated outcome of medical care, or in any arbitration proceeding related to such civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim and which relate to the discomfort, pain, suffering, injury, or death of the alleged victim as a result of the unanticipated outcome of medical care shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault which is otherwise admissible and is part of or in addition to any such communication shall be admissible.

For purposes of the statute, the term ‘health care provider’ means “any person licensed or certified by the State of Nebraska to deliver health care under the Uniform Credentialing Act and any health care facility licensed under the Health Care Facility Licensure Act. Health care provider includes any professional corporation or other professional entity comprised of such health care providers.”

The term ‘relative’ means “a patient’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, stepbrother, stepsister, half brother, half sister, or spouse’s parents. Relative includes persons related to the patient through adoptive relationships. Relative also includes any person who has a family-type relationship with the patient.” NRS § 27-1201(2).

The term ‘communication’ means “a statement, writing, or gesture.” Id.

The term ‘representative’ means “a legal guardian, attorney, person designated to make health care decisions on behalf of a patient under a power of attorney, or any person recognized in law or custom as a patient’s agent.” Id.

The term ‘unanticipated outcome’ means “the outcome of a medical treatment or procedure that differs from the expected result.” Id.

It is important to note that any “statement of fault which is otherwise admissible and is part of or in addition to any such communication [of apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence] shall be admissible.” NRS § 27-1201(1).

Although expressions of apology or sympathy may not be used as an admission of liability or otherwise as evidence, experienced medical malpractice lawyers in Nebraska understand that they can still be useful to potential plaintiffs. Lawyers point out that receiving such an expression of apology or sympathy may alert the potential plaintiff that an error was made by a healthcare provider. While the expression itself cannot be used against the healthcare provider in a civil action, it can serve as the trigger for the need to investigate the circumstances surrounding the plaintiff’s injury by contacting an experience medical malpractice lawyer.

XII. Excess Liability Fund

Nebraska’s Excess Liability Fund is a form of a patient compensation fund. A patient compensation fund is a state administered fund established and maintained for the purpose of compensating patients and/or their families for medical errors or omissions that occurred in the course of their treatment with a healthcare provider or entity that participates in the fund. A patient compensation fund functions largely like standard, commercial professional liability insurance in that the group of insureds all contribute a surcharge to the fund, which in turn makes payouts to patients with valid claims. The fund typically works in conjunction with healthcare providers’ primary professional liability insurance policy.

Nebraska’s Excess Liability Fund furnishes excess coverage for judgments or settlements against healthcare providers who qualify under the state’s Hospital-Medical Liability Act. NRS § 44-2825. “The total amount recoverable under the Nebraska Hospital-Medical Liability Act from any and all health care providers and the Excess Liability Fund for any occurrence resulting in any injury or death of a patient may not exceed” (1) $1,750,000 for any occurrence after December 31, 2003 and on or before December 31, 2014 and (2) $2,250,000 for any occurrence after December 31, 2014. Id. Under the Act, healthcare providers are liability for the first $500,000 of an award or settlement, and the excess amount up to the applicable total limit is paid by the Fund. NRS § 44-2832.

The Nebraska Supreme Court described participation in the Excess Liability Fund by healthcare providers and patients as follows:

Physicians, hospitals, and other health care providers may elect to “qualify” under the NHMLA by filing proof of financial responsibility with the Department of Insurance and agreeing to pay periodic surcharges levied to create and maintain the Excess Liability Fund established by the NHMLA. See § 44-2824. The substantive provisions of the NHMLA provide the exclusive remedy by which a patient may assert professional liability claims against the health care provider unless the patient filed an election not to be bound by the NHMLA prior to receiving professional services. If the health care provider does not elect to qualify under the NHMLA, its liability for professional negligence is determined under doctrines of common law. Giese v. Stice, 567 N.W. 156, 161-162 (Neb. 1997).

XIII. Website Disclaimer

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free, written information about our qualifications and experience.

[1] In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard. For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.