Nebraska Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in Nebraska.
Medical Malpractice in Nebraska
Legal issues, like medical malpractice, occur when medical professionals fail to provide an acceptable standard of care to their patients. As a result, patients may develop complications associated with a botched medical procedure or debilitating injuries that may affect them for the rest of their lives. When this happens, patients need to know their rights. Dealing with the effects of botched surgical or medical procedures can make life stressful and unpleasant. Often it may even be painful, depending on the type of malpractice that occurred. In many cases, patients may be able to file a medical malpractice claim against their health care provider to get justice or even monetary compensation for their experience.
How does medical malpractice in the state differ from other types of lawsuits? For starters, Nebraska’s medical malpractice laws can be complicated. There are many steps and procedures for patients to learn for their claim to be successful. For the best results, it is wise to consult with a medical malpractice attorney to understand all the special rules involved. A medical malpractice lawyer can also educate patients on such topics as compensation limits, the medical review panel requirement, and the statute of limitations.
Questions to Ask Malpractice Attorneys
No matter what type of malpractice a patient suffers, they should always have the best malpractice lawyer on their side. A strong attorney-client relationship is important for malpractice cases to be successful. When tracking down a lawyer to work their case, patients should ask the following questions:
- What type of malpractice claims has the attorney worked on?
- Does the case have a time limit?
- What, if any, evidence will work in the patient’s favor? What will work against them?
- Could the case end in a settlement or will it go to trial?
- What expert medical witnesses will help the case?
- Are there any fees due upfront?
These are some of the most important questions to ask when looking for a malpractice lawyer. Finding someone experienced in working on similar cases will help patients get the justice they deserve.
About Nebraska Malpractice Claims
When it comes to medical malpractice, a patient should file a claim for a few reasons, including the following:
- A medical professional made a mistake during diagnosis, treatment, or medical procedure.
- A baby sustained injuries during birth.
- A medical professional intentionally delayed diagnosing or treatment for a personal injury or illness.
Incidents involving any of the above may cause patients untold amounts of suffering and discomfort. When this happens, the first thing a patient should do is seek the aid of a malpractice attorney with experience handling similar malpractice cases. From there, discussions will take place to determine who caused the malpractice. Unlike other states, Nebraska medical malpractice laws allow patients to sue multiple medical professionals for malpractice. For example, a patient can sue everyone involved in whatever procedure that resulted in the malpractice. This may include nurses, midwives, doctors, physical therapists, and other licensed health care professionals. Often, entire organizations, including hospitals and clinics, can be named in malpractice claims. When patients are unsure who was responsible for the malpractice, an attorney can advise them on the best course of action.
Even when there are multiple potential defendants, it is important to ensure they are all identified in the complaint. Every detail is important, and a malpractice lawyer is necessary to form a compelling case. The more details and defendants listed in the complaint, the easier it will be to defend a patient against the legal team(s) representing the defendants. Many health care professionals and hospitals will have their legal defense teams standing by to defend them against medical malpractice claims.
Once a lawyer identifies the responsible parties, it is time to begin gathering witness statements, taking depositions, and appearing in court.
How to Prove Medical Malpractice Occurred
How can patients prove malpractice occurred? In Nebraska, there are a few things that must be proven before a case can proceed in court. One of the first things a patient must prove is that a patient-doctor relationship was in place before the alleged malpractice. A patient establishes this relationship by meeting with a doctor for an illness or injury and agreeing to have that doctor provide a diagnosis or treatment.
A patient must also prove that their doctor was negligent during medical treatment or when making a diagnosis. To prove medical negligence, patients must also prove that a different medical professional operating under the same circumstances would not have made the same error resulting in injury or illness. Consulting with a medical expert can help determine whether the care provided by a defendant was negligent or reasonable.
If it is determined that the care received was negligent, it must then be proved that that negligence resulted in the injury or illness. That said, if a patient has a preexisting condition, he or she must prove the condition did not contribute to the alleged malpractice. A medical expert would be able to help establish whether a patient’s preexisting condition contributed to the injury or whether it was a provider’s negligence.
A patient’s experienced attorney must also establish specific damages that resulted from the malpractice. This may include lost wages, ongoing medical expenses, mental illnesses, physical pain, and other non-economic damages. Without showing specific damages, a court may have difficulty determining a financial award.
Statute of Limitations
As is common with lawsuits and other legal matters, there is a time limit for medical malpractice claims. In most cases, the limitations include the following:
- The time limit does not apply to children under the age of 20.
- Adult patients have two years to file a claim.
- If an incident of malpractice is discovered after the two-year mark, a suit may be filed up to one year after the two-year mark.
- The maximum time to file a claim against a provider is 10 years.
Once 10 years have passed from the date of the incident, patients lose the right to file malpractice claims. This is true even if they do not discover the malpractice until year 11. If patients try to file a claim after the 10 years is up, there is a good chance the defendants will try to have the claim dismissed. Once a claim is dismissed, that’s the end of the lawsuit.
How Much Compensation Can Patients Expect?
When it comes to medical malpractice compensation in Nebraska, there are caps on the amount of damages patients can receive. Unlike other states that might only have caps on certain types of damages, the state’s law requires caps on all damages, including damages for pain and suffering, lost wages, and medical care payments. In most cases, patients can expect to be awarded anywhere between $1.25 million and $2.25 million. With so much money at stake, it is even more important to track down a lawyer experienced in handling malpractice cases.
When claims are successful, patients will likely receive compensatory damages, which can be in the form of general damages and actual damages. The difference between the two is that actual damages reimburse patients for any out-of-pocket costs they may have incurred during a malpractice incident. Out-of-pocket expenses may include fees spent on prescription drugs, medical bills, nursing costs, and lost wages from not being able to work.
On the other hand, general damages may offer compensation for things like loss of future wages, loss of enjoyment of life, pain and suffering, future medical costs, loss of consortium, and more. Fortunately, the state has no limits on the compensatory damages a patient can receive unless the suit is filed against a qualified medical provider. If this happens, a cap will be placed on the award.
According to Nebraska’s Revised Statutes section 44-2825, the state has caps on damages patients can receive on their medical malpractice claims, specifically on their potential economic damages. Economic damages include lost income, compensation for past and future medical care, future lost earnings, and non-economic harm. The cap is not black and white, though. In fact, caps are determined a variety of ways, including when the alleged malpractice took place. For example, for malpractice that happened after Dec. 31, 2014, the state’s cap is $2.25 million. For alleged malpractice that happened after Dec. 31, 2003, but on or before Dec. 31, 2014, the cap is $1.75 million. Lastly, for any alleged malpractice that happened after Dec. 31, 1992, but on or before Dec. 31, 2003, the state’s cap is $1.25 million.
Malpractice caps can begin to get messy if the medical provider a patient is suing qualifies under the state’s Hospital-Medical Liability Act. Under the act, medical providers do not have to pay more than $500,000 in damages. Damages higher than that number are then paid from the state’s Excess Liability Fund until the cap is met.
About Nebraska’s Medical Review Panel Requirement
Amid all the legal jargon, patients need to remember that before they can even file a malpractice suit in the state, their complaint must first go before a panel of experts, thanks to the Nebraska Revised Statute 44-2840. Statute 44-2840 acts as a sort of prerequisite or prelitigation screening when filing a suit. Although statute 44-2840 is designed to be a procedural safeguard, in some cases, plaintiffs may see the panel as a roadblock to justice because the process may discourage some patients from filing lawsuits in the first place.
What does the medical review panel do, though? To start, the panel is responsible for analyzing evidence from both the plaintiffs and defendants named in the suit to determine which party is at fault. The evidence may include lab test results, medical charts, witness depositions, and any other information that might be considered as evidence. Additionally, the panel also has the right to ask for other information that it thinks may help during the evaluation process and may even consult with multiple medical authorities. Once the panel concludes the evaluation process, it has 30 days to issue an opinion. The panel’s opinion may be one of the following:
- The panel agrees that the evidence supports a malpractice claim that a medical provider did not appropriately treat the patient.
- The panel agrees the evidence supports the conclusion that a medical provider appropriately treated a patient and thus no malpractice occurred.
While the panel will not typically issue a dollar amount regarding alleged malpractice, the panel’s opinion can be used as evidence in a malpractice suit that ends up going to court. The opinion cannot be used to determine damages or liability. However, if the plaintiff or defendant disagrees with the panel’s decision, he or she can challenge the opinion with more evidence.
However, patients must note that the state’s medical review panel is not technically required in all cases. If a plaintiff wants to waive his or her right to the panel’s opinion and move right to the litigation process in court, he or she can do that. However, patients should remember that the medical review panel process freezes the statute of limitations clock, beginning from the date when a plaintiff presents their claim to the panel. Once that clock is paused, it stays paused until 90 days after the panel issues its opinion.
Medical malpractice cases in the state of Nebraska are complex with many steps. To successfully navigate through the process, patients should understand the importance of consulting an experienced malpractice attorney from a reputable law firm for legal advice. Skilled attorneys will ensure they follow all the steps, so the case has the best chance to go to court. They will also help gather evidence and witness statements and can help patients through the medical review panel requirement. Without consulting a malpractice attorney and taking the time to learn about the process, patients could miss out on more than just lucrative malpractice awards. They may also miss out on the justice they deserve.