Nebraska Medical Malpractice Laws

According to an article published by the National Institutes of Health in 2021, medical errors are the third leading cause of death in the U.S., falling only behind heart disease and cancer. It is estimated that 200,000 patients die annually due to medical errors. 

In Nebraska, a jury recently awarded a record-breaking amount of $26.1 million for a lifetime of medical care and damages to a 5-year-old victim, who was 11 months old at the time of the medical malpractice. Her parents were also given $4.6 million. The jury found that the children’s hospital and one of its doctors improperly discharged the child after suffering from brain trauma that left her permanently disabled due to an accidental fall at her daycare. 

Medical malpractice cases in Nebraska, such as this, show that healthcare professionals who fall short of the standards of care expected of them may cause serious illness or injury to patients. Despite taking every precaution, healthcare providers sometimes commit mistakes or patients suffer complications after a medical procedure, leaving them in a worse condition than before and with the prospect of increased healthcare costs.

When a person or their loved one is injured because of a healthcare provider’s negligence, it may be difficult to know how to protect their rights as patients. 

This article provides an overview of the process of filing medical malpractice claims in Nebraska to help plaintiffs handle the legal matters surrounding their case, including the laws on damages and time limits. Plaintiffs are also encouraged to seek the counsel of medical malpractice lawyers in their area. 

What Qualifies as Medical Malpractice in Nebraska?

Not every injury sustained in a hospital may be considered medical malpractice in Nebraska. Likewise, not all illnesses or injuries may be caused by a healthcare provider’s negligence. 

According to Neb. Rev. Stat. § 44-2810, malpractice occurs when a patient is harmed by a medical professional due to their negligence. Such happens when a physician or hospital does not meet the standard of care. 

The determination of whether a healthcare provider has met such a standard is based on a comparison to other medical professionals in the same field. This means that if the standard of care was met, another competent medical professional in the same situation would not have taken the same action. 

Medical malpractice can take many forms, resulting either from negligent actions or inaction by healthcare providers. Some situations that may constitute medical malpractice in Nebraska include the following: 

• Administering the wrong medication. 

• Anesthesia error.

• Cosmetic surgery error.

• Early discharge.

• Emergency room error.

• Failure to diagnose a medical condition.

• Failure to obtain informed consent from the patient.

• Failure to order proper testing based on symptoms or medical condition.

• Failure to provide appropriate treatment for a medical condition.

• Failure to understand or address the patient’s history.

• Labor and delivery errors.

• Medical professional fatigue.

• Misdiagnosis. 

• Misuse of a medical device or implant.

• Post-operative care error.

• Prescribing improper dosage. 

• Surgical error or operating on the wrong surgery site.

• Unnecessary medical intervention, including surgery.

• Unreasonable delay in treating a medical condition.

Some injuries suffered due to medical malpractice in Nebraska include: 

• Allergic reaction and overdose.

• Birth injury.

• Brain injury.

• Deteriorating condition.

• Infection. 

• Loss of limb.

• Paralysis.

• Unnecessary incision.

While this list is not exhaustive, it is illustrative of the situations that may be considered medical malpractice in Nebraska. Injuries resulting from negligent acts by healthcare providers may range from minor to severe.

Before a plaintiff may file a medical malpractice claim in Nebraska, their complaint must be considered by a medical review panel, according to Neb. Rev. Stat. § 44-2840. The panel consists of at least three physicians. One is selected by each of the parties in the case. The third one is mutually agreed upon by each party’s physician. If a hospital is included in the claim, it must select an administrator to sit on the panel. An attorney licensed to practice in Nebraska and without connection to the case advises the panel. 

According to Neb. Rev. Stat. § 44-2842, the panel may review evidence such as excerpts of treatises and depositions of witnesses, including parties; laboratory test results; medical charts; and X-rays. After reviewing the evidence, the panel must decide within 30 days whether the doctor or healthcare provider failed to meet the standard of care. 

A plaintiff has the option to waive the medical panel review and move directly to filing the case. Although the panel’s decision has no bearing on whether the case can move forward, their report is still admissible in court. In fact, an opinion in the patient’s favor may even help strengthen their medical malpractice case. 

Who Can You Sue for Medical Malpractice in Nebraska?

Neb. Rev. Stat. §§ 44-2803 defines a healthcare provider as a physician, a certified registered nurse anesthetist, or an individual, partnership, corporation, or other entity authorized by law to provide medical services. They also refer to hospitals or personal representatives, who are assignees or successors of a healthcare provider. They are responsible for assessing symptoms, diagnosing medical conditions, administering treatments, and prescribing medications. 

Neb. Rev. Stat. §  27-1201 further defines a healthcare provider as any person licensed or certified by the state of Nebraska to deliver healthcare under the Uniform Credentialing Act. The term also means any healthcare facility licensed under the Healthcare Facility Licensure Act.  

The healthcare professionals who may be held accountable for medical malpractice in Nebraska include: 

• Anesthesiologists. 

• Condition specialists.

• Dentists. 

• Doctors.

• Laboratory, X-ray, and other medical technicians.

• Midwives. 

• Nurses.

• Pharmacists. 

• Physician assistants.

• Physical therapists.

• Psychologists.

• Surgeons. 

In addition to medical professionals, clinics, hospitals, and medical groups may be sued for administrative errors or making bad decisions, such as patient mix-ups. 

Exemptions

Neb. Rev. Stat. § 81-8, 209, or the State Tort Claims Act, states Nebraska is not liable for the torts of its agents, employees, or officers, except for a few exempt cases. In such cases, the state is liable in the same manner and extent as a private individual under similar circumstances. According to this law, the claim must be submitted in writing to the State Claims Board within two years from the date of the cause of action. 

Anyone who renders emergency care at the scene of an accident is also not liable for civil damages as a result of their acts to provide medical treatment or care for the injured person or failure to do so, according to Neb. Rev. Stat. § 25-21,186. 

Medical Malpractice Liability Insurance Requirements

In Nebraska, healthcare providers are not required to carry medical malpractice insurance unless they want to participate in the state-run program, the Nebraska Excess Liability Fund, that helps them pay claims. 

Healthcare providers must carry the limits of liability required by the Fund:

• $500,000 per incident, or $1 million aggregate annually, for corporations, nurse anesthetists, and physicians.

• $500,000 per incident, or $3 million aggregate annually, for hospitals and surgical centers.

Malpractice insurance rates vary by location and specialty, as well as a healthcare provider’s history of malpractice claims. Medical professionals with high-risk specialties, such as surgeons, may need to obtain more coverage than regular physicians. 

The Nebraska Excess Liability Fund provides claim assistance with a cap of $2.25 million. It also allows healthcare providers to combine their liability risk in order to handle large claims. 

What Is the Statute of Limitations in Nebraska for Medical Malpractice Cases?

Filing medical malpractice claims is subject to a deadline when a plaintiff may bring a lawsuit and recover damages. This is called the statute of limitations, which varies by state. 

In Nebraska, the statute of limitations for filing a medical malpractice claim is two years from the date the negligence occurred. If a plaintiff fails to file a suit within the timeframe, they may not be able to do so anymore. 

Sometimes, a victim may not discover their injuries until after the two-year period. In that case, they may file within one year of when the injury was discovered or should have reasonably been discovered or when the relevant facts became available to bring a lawsuit. 

However, Nebraska prohibits filing medical malpractice claims more than 10 years after the negligence that resulted in injury, regardless of when it was discovered or should have been discovered. This is called the statute of repose. 

If the injured person was a minor at the time, the statute of limitations may be “tolled” or deferred. This means the child may file their medical malpractice claim within two years after reaching the age of majority (19 years old in Nebraska) or when they turn 21 years old. If their parents wish to bring a lawsuit on their behalf, such as in the case of a birth injury, the standard two- or one-year period for filing a claim applies. 

Just like medical malpractice cases that result in injury, a plaintiff also has two years to file a wrongful death claim in Nebraska. 

What Do You Need to Prove in a Nebraska Medical Malpractice Case?

As mentioned in Neb. Rev. Stat. § 44-2810, the standard used in proving a medical malpractice claim is reasonable care. It involves interviewing expert witnesses who can attest to the standard of care and whether the healthcare provider breached their duty. It also involves detailing injuries and proving that they were caused by the defendant’s conduct and not due to the patient’s underlying illness or a preexisting medical condition.

To prove a medical malpractice claim in Nebraska, a plaintiff must establish that: 

• A doctor-patient relationship existed, i.e., the healthcare provider owed a duty of care. This means a plaintiff may not sue a consulting physician. They may only sue a doctor who diagnosed and treated them. 

• The healthcare provider violated that duty of care, either through negligent acts or failure to act. For example, a misdiagnosis of cancer can anguish a patient’s family and lead them to make costly decisions. 

• The healthcare provider’s negligence caused the patient’s injury.

• The patient suffered damage as a result of the injury, such as income loss, medical bills, mental anguish, and physical pain. 

Neb. Rev. Stat. §  27-1201 prohibits expressions of apology by a healthcare provider from being admissible in a medical malpractice lawsuit in Nebraska. Such statements may not be used as an admission of liability or as evidence in court. However, a statement of fault may be admissible in court. 

Neb. Rev. Stat. §  44-2816 also prohibits a medical professional from performing procedures on patients without first obtaining their informed consent, whether express or implied. If a healthcare provider fails to inform the patient, a plaintiff may bring an action against them and recover damages. Using a preponderance of evidence, they must prove that they would not have undergone the medical treatment had they been properly informed. They must also establish that the lack of informed consent caused their injury and damages. 

How Much Can You Sue for Medical Malpractice in Nebraska?

Medical malpractice may cause serious injuries, which can mean lifelong expenses. Filing a claim against a negligent healthcare provider helps plaintiffs receive compensation for the damage they have sustained. The types of compensation they may recover depend on the circumstances of their case. 

Neb. Rev. Stat. § 44-2801, or the Nebraska Hospital-Medical Liability Act, was enacted in 1976 to prevent malpractice claims lacking proper merit. The Act does so by establishing a cap on damages in medical malpractice actions, a cap on liability for healthcare providers, and the Excess Liability Fund.

Types of Damages

The damages that a plaintiff may recover in a medical malpractice lawsuit in Nebraska include: 

• Economic damages - This includes compensation for medical bills, rehabilitation costs, and out-of-pocket expenses for home accessibility modifications. Income loss and diminished earnings due to the injured person’s inability to work are also covered.

• Non-economic damages - This compensates for emotional distress, loss of companionship, loss of consortium, and loss of quality of life. Pain, suffering, scarring, and disfigurement may also be compensated.

The amount a plaintiff may be awarded in a medical malpractice lawsuit is subject to limitations based on the Nebraska Hospital-Medical Liability Act. The damage caps vary by the date of the negligent act that caused the patient’s injury. 

• If a plaintiff was injured between January 1, 2004, and December 31, 2014, they may be able to collect up to $1.75 million in damages.

• For medical malpractice that occurred on or after January 1, 2015, the maximum amount of recoverable damages for each occurrence is $2.25 million. 

Punitive damages, intended to punish the defendant for their misconduct rather than provide compensation, are not allowed in Nebraska. 

Negligence System

According to Neb. Rev. Stat. § 25-21,185, the state follows the doctrine of modified comparative fault, which allows the court to assign a percentage of blame to each party involved in a medical malpractice lawsuit and reduce the damages in proportion to their fault. 

Additionally, Nebraska follows the 50% rule, which allows claimants to recover damages only if the court determines that their percentage of fault is 49% or less. For example, if a person is assigned 40% of the blame for their injury and the court awards $100,000 in damages, they will still be able to recover a portion, i.e., $60,000, because they are not found to have been 50% or more at fault for their injury. 

Methods of Obtaining Compensation

There are several ways a medical malpractice lawsuit is resolved, which leads to the plaintiff recovering compensation if successful. 

Most medical malpractice cases are resolved through out-of-court settlements, wherein the defendant agrees to pay the damages sought by the plaintiff. 

In some situations where a settlement cannot be reached, the case will be taken to trial, wherein a jury or judge will decide whether to award the plaintiff damages. Note that this may not be final, as the defeated side may file an appeal.   

How Much Does It Cost to Pursue a Medical Malpractice Case in Nebraska?

Most of the cost incurred in pursuing a medical malpractice case in Nebraska comes from lawyer’s fees. However, lawyers may be paid on a contingency fee basis, as per Neb. Ct. R. § 3-501.5. In this kind of arrangement, they will receive compensation if their clients recover damages through court judgment or settlement. 

The state’s medical malpractice laws do not set a specific limit on attorney fees. Fees vary at different law firms. However, attorneys generally receive ⅓ of the settlement. The fees may increase if they file lawsuits or prepare to take cases to trial on clients’ behalf. 

Upon motion by a party, attorney fees are subject to court approval. There is currently no provision for periodic payments. 

Legal Resources for Medical Malpractice Victims in  Nebraska

Some insurance companies in Nebraska may make quick settlement offers, which may not pay the full value of what medical malpractice victims deserve as compensation for their injuries. This section describes projects that provide attorneys who have the experience and resources to help protect plaintiffs’ rights and claims. These projects represent the disadvantaged and their families and hold negligent medical professionals responsible for any damages they cause. 

The Nebraska State Bar Association Volunteer Lawyers Project

The Volunteer Lawyers Project is a statewide pro bono program that aims to help low-income people in Nebraska facing civil legal matters obtain legal assistance through cyber platforms, courthouse self-help desks, and direct case placement. Its volunteer attorneys also conduct in-person and virtual legal clinics. To receive legal help, a person may contact Legal Aid of Nebraska by visiting this webpage. They may also visit the Virtual Self-Help Center, which allows them to video chat with an attorney. 

American Bar Association’s Free Legal Answers

Free Legal Answers, a project by the American Bar Association, is a virtual legal advice clinic that allows people to ask questions on their civil legal issues to pro bono attorneys. The lawyers provide answers to topics such as health, disability, and civil rights. 

American Bar Association’s Medical-Legal Partnerships Pro Bono Project

The American Bar Association’s Medical-Legal Partnerships Pro Bono Project helps low-income families facing legal problems related to healthcare. Its volunteer attorneys partner with community health centers, hospitals, and nursing homes, providing direct services to patients in the form of legal advice, monthly legal clinics, or full representation. They also handle legal issues related to wills and family law, guardianship, and public benefits. To get legal assistance, individuals may email the Center for Pro Bono staff at abaprobono@americanbar.org.