Medical Malpractice
Overview
Medical care is not an exact science. A treatment that works for one person does not work on another. People given a 10% chance to survive may live into their 90’s while a person given a 90% survival chance may die. Medicine is progressing as doctors and researchers learn more every day about diseases and conditions. However, even with the most common of illness people still die or fall gravely ill despite the most advanced care.
Nebraska has enacted the Nebraska Hospital-Medical Liability Act which sets forth requirements for both medical providers and injured persons with regarding to medical malpractice claims. To be covered by the Act, the medical provider must fall within the definition of a “health care provider” under the Act and elect to be covered by it. By so choosing, the Act offers certain protections and makes it more difficult for an injured or damaged person to receive money against a medical provider. More importantly, the Act has a cap of $1,750,000 regardless of the amount of damage to a person due to a negligent act. This cap can be especially unfair depending on the injuries sustained. For example, a negligent child delivery causing permanent injury to the baby could result in millions of dollars of medical care necessary but the cap limits how much can be collected. Medical providers either not covered by the Act or electing not to be covered by it are not afforded the same protections but what is usually necessary to prove malpractice is the same.
Medical Malpractice Claims
Negligent Act or Omission:
Nebraska law defines medical malpractice as:
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.
More simply, that a medical provider has done or failed to do something that other doctors in the community would have done or not done. The medical provider’s conduct is judged against doctors in the same area or a similar area. A doctor in Beatrice’s conduct could be compared to that of a doctor in Fairbury, not a doctor in New York City.
Nebraska law defines informed consent as:
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.
Informed consent has two components: 1) providing information; 2) obtaining the consent.
The information component looks at what information other medical providers would give their patients. Information that may be required could include: possible risks and complications; likelihood of success; the doctors own history such as prior malpractice or disciplinary claims against him or her. Consent may be given either expressly, such as a written consent to a particular treatment, or impliedly. It may also be given by a family member or someone holding a Health Care Power of Attorney. Emergency care may also be excluded.
To recover on a claim of a failure to obtain informed consent, the plaintiff must prove by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have given consent to the treatment had he or she been properly informed and that this lack of informed consent caused the plaintiff’s damages.
Statistics
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Statute Of Limitations
In Nebraska, there is generally a two year statute of limitations on medical malpractice claims. The statute of limitation is based on an “occurrence” which is the negligent act, not necessarily when the full extent of the damages from the negligent act are known. While the problem may lead to the discovery of the negligent act, that is not necessarily when the statute begins to run.
There are two well recognized exceptions that extend this time period:
Discovery rule:
If a person does not know or could not reasonably have known that malpractice has occurred, the limitation period is extended for one year from the date the malpractice is discovered or from the date of the discovery of facts that could reasonably lead to such discovery. For example, if a surgery leaves a surgical instrument in a person during surgery and the person does not develop problems until three years after the surgery, the statute of limitations would be one year from the date the person learns that the surgical instrument was left inside. However, there is a ten year ultimate limitation period from the date of the negligent act.
Continuing treatment:
This rule extends the starting period of the statute of limitations if based either on a misdiagnosis upon which incorrect treatment is given or when there has been a continuing course of negligent treatment. It does not apply where there have been only isolated acts of negligence
FAQs
Why are medical malpractices cases so difficult?
There are number of reasons why medical malpractices cases are difficult. Unless the negligent act or omission is such that a non-medical provider would know that malpractice had been committed, medical testimony is required to prove that medical provider was negligent and that this negligence caused harm. An example of a case where a medical expert is not required was the case in Florida several years ago in which the doctor amputated the wrong leg. In Nebraska, it is usually very difficult to find a doctor who is willing to testify against another doctor. While there are doctors that can be “hired” to testify, these doctors are usually not as persuasive to juries. Second, if you can find a doctor, obtaining their testimony is usually very expenses. Many doctors charge in excess of $500 to $1,000 an hour to review a file or testify. Third, medical providers usually do not want to settle cases as it goes on their “record” and may make it difficult for him or her to obtain malpractice insurance or new employment.
I believe my surgery was negligently performed at my local hospital. Who do I make a claim against?
It depends. First, you need to determine who was negligent. This could be more than one person. Second, are they self employed or employed by the hospital or other entity? Many doctors are not employed by the hospital while nurses usually are. You need the answer to this question so you make sure to make a claim against the correct person or entity within the statute of limitations.
What if the nurses at a county owned hospital were negligent?
Although this is still a malpractice claim, it is governed by other claims against governmental entities, which have different filing and timing requirements. Get more information regarding claims against the government.
Free Consultation
Contact Nebraska’s Lapin Law Offices at (888) 525-8819 or click here if you or a loved one have been injured due the malpractice of a doctor, chiropractor, nurse, therapist, hospital or other medical provider for a free initial consultation.