Nebraska Medical Malpractice Summary

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Statutes of Limitations

Any action to recover damages for professional negligence must be commenced within two years after the act or omission that provides the basis for the action, or within one year after the claimant discovered the act or omission or discovered facts that should reasonably have led to such discovery. In no case may an action for professional negligence be commenced more than ten years after the act or omission that provides the basis for the action. Neb. Rev. Stat. §§ 25-222 (1996) and 44-2828 (1993).

If the claimant is, at the time the cause of action accrues, under the age of 21 or suffering from a mental disorder, the limitations period does not begin to run until the disability is removed. Neb. Rev. Stat. § 25-213 (1995).

A wrongful death action must be brought within two years after the decedent’s death. Neb. Rev. Stat. § 30-810 (1995). This limitations period applies to wrongful death actions based on medical malpractice. See Muller v. Thaut, 230 Neb. 244, 430 N.W.2d 884 (1988).

Contributory or Comparative Negligence

Nebraska has adopted a form of the doctrine of comparative negligence. Neb. Rev. Stat. § 25-21,185.09 (1995). In actions accruing on or after February 8, 1992, a claimant’s negligence bars recovery only if it is equal to or greater than the total negligence of all defendants. Otherwise the claimant’s damages are reduced in proportion to his share of negligence. Id. For actions accruing prior to that date, a claimant’s contributory negligence will not bar recovery where it is “slight” in comparison to the defendant’s negligence. The claimant’s slight contributory negligence may serve to reduce the claimant’s recovery. Neb. Rev. Stat. § 25-21,185 (1995).

Joint and Several Liability

In Nebraska, the liability of each defendant for economic damages is joint and several, but liability for non-economic damages is several only and non-economic damages are allocated by percentage of negligence. Neb. Rev. Stat. § 25-21,185.10 (1995). There is an exception to this rule when defendants as part of a common enterprise or plan act in concert and cause harm, in which case liability for all damages is joint and several. Id.

Contribution

In 1975, the Supreme Court of Nebraska held that a right to equitable contribution exists among joint tortfeasors. Royal Indemnity Co. v. Aetna Casualty & Surety Co., 193 Neb. 752, 229 N.W.2d 183 (1975). The right to contribution becomes enforceable when one tortfeasor discharges more than his proportionate share of the judgment. Id.

Vicarious Liability

Nebraska courts have yet to address whether the theories of ostensible or apparent agency can be used as a means by which to hold a hospital liable for the negligent acts of its independently-contracted physicians.

Expert Testimony

Nebraska does not have a statute specifically dealing with expert testimony in medical malpractice cases.

Damage Caps

Nebraska does not generally impose limits on the amount recoverable as compensatory damages in medical malpractice actions. However, see Patient Compensation Funds and Physician Insurance for limits applicable to health care providers that qualify for state-sponsored excess insurance. It is a fundamental rule of law in Nebraska that punitive, vindictive, or exemplary damages are not allowed. Miller v. Kingsley, 194 Neb. 123, 230 N.W.2d 472 (1975).

Statutory Cap on Attorneys’ Fees

Nebraska does not place a limit on the fees a medical malpractice claimant’s attorney may recover for services rendered. In all cases against a health care provider for professional negligence, the court, upon motion of either party, shall review the attorneys’ fees incurred by that party and allow such compensation as the court finds reasonable. Neb. Rev. Stat. § 44-2834 (1993).

Periodic Payments

Nebraska does not require the periodic payment of medical malpractice judgments.

Collateral Source Rule

Non-refundable medical reimbursement insurance benefits, less all premiums paid by or for the claimant, are credited against any judgment rendered under the Nebraska Hospital-Medical Liability Act. Neb. Rev. Stat. § 44-2819 (1993). See Patient Compensation Funds and Physician Insurance for actions to which this act applies.

Pre-Judgment Interest

Pre-judgment interest is only allowed if, after he has made a written demand on the defendant, judgment is rendered in favor of the claimant for more than the demand. Neb. Rev. Stat. § 45-103.02 (Supp. 1996). Pre-judgment interest accrues from the date of the first demand by claimant that is less than the judgment. Id.

Patient Compensation Funds and Physician Insurance

Nebraska provides an excess liability fund for the benefit of qualified health care providers. Neb. Rev. Stat. § 44-2829 (1993). To qualify for coverage by the excess liability fund, a health care provider must file proof of financial responsibility and pay a surcharge. Neb. Rev. Stat. § 44-2824 (Supp. 1996). Physicians establish their financial responsibility by obtaining professional liability insurance in the amount of $200,000 per occurrence and $600,000 in the aggregate. Hospitals establish their financial responsibility by obtaining insurance in the amount of $200,000 per occurrence and $1,000,000 in the aggregate. Id. Hospitals run by the University of Nebraska may prove financial responsibility by establishing a self-insurance trust. Neb. Rev. Stat. § 44-2827.01 (1993). Once a health care provider has qualified under the Act, the Act becomes the exclusive method of recovery, unless the claimant has elected in writing prior to treatment not to come under the provisions of the Act. Neb. Rev. Stat. §§ 44-2821 and 44-2840 (1993 & Supp. 1996).

The total amount recoverable under the Nebraska Hospital-Medical Liability Act for any occurrence resulting in injury or death is $1,250,000 (or $1,000,000 if the occurrence took place prior to 1993). Neb. Rev. Stat. § 44-2825 (1993). The liability of a single qualified health care provider is limited to $200,000 per patient. Id. The excess liability fund pays the damages in excess of $200,000 for each defendant, up to the amount of the cap. Id.

Immunities

The Nebraska State Tort Claims Act provides the exclusive remedy for tort actions against the state, state agencies, state officers, and state employees. Neb. Rev. Stat. § 81-8,209 (1996). The state is liable in the same manner and to the same extent as a private individual. Neb. Rev. Stat. § 81-8,215 (1996). Tort claims against the state are barred unless submitted in writing to the State Claims Board within two years after the cause of action accrues. Neb. Rev. Stat. § 81-8,227 (1996). The state may bring an action for recovery against an employee of the state when the state has paid an award or settlement arising from the employee’s act or omission under the State Tort Act. Neb. Rev. Stat. § 81-8,232 (1996).

The Nebraska Political Subdivisions Tort Claims Act provides the exclusive remedy for tort actions against political subdivisions, including villages, cities, counties, municipalities, and all other units of local government. Neb. Rev. Stat. §§ 13-901 to 13-926 (1991 & Supp. 1996). Claims against political subdivisions and their employees are barred unless they are made in writing to the governing body within one year after the cause of action accrues. Moreover, all suits are barred unless commenced within two years after the accrual of the claim. Neb. Rev. Stat. § 13-916 (1991) The total amount recoverable against a political subdivision is $1,000,000 per claimant per occurrence and $5,000,000 for all claims arising out of a single occurrence. Neb. Rev. Stat. § 13-926 (Supp. 1996).

Arbitration

Under the Nebraska Hospital-Medical Liability Act, all malpractice claims against qualified health care providers must be reviewed by a medical review panel prior to suit, unless the review is affirmatively waived in writing by the claimant. Neb. Rev. Stat. §§ 44-2840 to 44-2847 (1993 & Supp. 1996). Review by the medical panel, unless waived, is a prerequisite to filing an action in state court. Neb. Rev. Stat. § 44-2840 (1993). Filing a request for review of a claim tolls the running of the limitations period until 90 days after the panel has rendered its opinion. Neb. Rev. Stat. § 44-2844 (1993).

The sole duty of the medical review panel is to determine whether the evidence supports the conclusion that the defendants acted or failed to act within the appropriate standards of care and whether damages were proximately caused by any failure to act in accordance with such standards of care. Neb. Rev. Stat. § 44-2843 (1993). The decision of the panel is non-binding; however, the panel’s opinion, while not conclusive, is admissible in any subsequent proceedings. Neb. Rev. Stat. § 44-2844 (1993). Actions which do not fall within the provisions of the Act are not subject to arbitration, absent the agreement of all parties involved.

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Revision Date: February 6, 1998