Compared with other injury-related legal claims, a medical malpractice lawsuit is usually a fairly complex undertaking. That's true in every state, not just Nebraska. Legal issues and medical evidence can get very complicated very quickly in these cases, and the plaintiff (the injured patient, or his or her legal representative) needs to understand the special procedural rules and compensation limits that come into play. In this article, we'll look at some key Nebraska laws related to these kinds of claims, including the medical review panel requirement and the Nebraska medical malpractice damages cap.
Anyone intending to file a medical malpractice lawsuit in Nebraska must pay attention to and follow the statute of limitations, which is a law that limits the amount of time you have to get your case started in the state's civil court system.
You can find Nebraska's statute of limitations for medical malpractice lawsuits at Nebraska Revised Statutes section 44-2828, and it says that this kind of case must be filed within two years of the date on which the alleged medical error occurred, except that if the malpractice "is not discovered and could not be reasonably discovered" within that two-year time frame, "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." In other words, if you don’t discover the malpractice right away, the one-year "clock" starts running when you actually do learn about it, or should have discovered it, at least in the eyes of the law.
There is also a larger catch-all filing deadline (known as a "statute of repose" in legalese) in Nebraska, which says that any medical malpractice lawsuit must be filed within ten years from the date on which the medical professional’s (or facility's) alleged negligent act was committed. So, once ten years have passed, your right to file a medical malpractice lawsuit is lost in Nebraska, even if you didn't know (and couldn’t have known) that you were harmed by malpractice during that time.
Finally, if the prospective plaintiff in a medical malpractice case is under the age of 21 at the time the alleged malpractice was committed, Nebraska Revised Statutes section 25-213 says that the statute of limitations is "tolled" (meaning it doesn’t run) until that person turns 21.
If Nebraska's medical malpractice statute of limitations deadline has passed and you try to file the case anyway, you can count on the defendant asking the court to dismiss the case, and the court granting the motion. Once that happens, that’s the end of your lawsuit.
Before you can file a medical malpractice lawsuit in Nebraska's courts, the proposed complaint must be considered by a panel of experts, according to Nebraska Revised Statute 44-2840. This process serves as a prerequisite to filing a lawsuit (although panel review can be waived in some situations).
Details of these panels -- including selection of members and the procedure for challenging someone's inclusion on the panel -- can be found at Nebraska Revised Statute 44-2841.
Here are some highlights of the process:
Once the panel is formed, it considers all relevant evidence, including "medical charts, X-rays, laboratory test results, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable," according to Nebraska Revised Statute 44-2842.
After considering all evidence, Nebraska Revised Statute 44-2843 says that, within 30 days, the panel must a majority opinion, including as to whether:
This is just a quick summary of Nebraska's medical review panel process. For more details, peruse the statutes linked above, or talk with an experienced Nebraska medical malpractice lawyer.
Like a lot of states, Nebraska has a law on the books that limits the amount of compensation that a plaintiff can receive in a medical malpractice case, even after the plaintiff has been successful at trial and the jury has issued a finding that the defendant's medical negligence caused significant harm to the plaintiff.
Nebraska's damages cap is pretty unique among states. That's because most states place a cap only on one category of medical malpractice damages: non-economic damages, which includes compensation for things like pain and suffering, loss of enjoyment of life, anxiety, emotional distress, and other subjective harm caused by the malpractice.
But in passing Nebraska Revised Statutes section 44-2825, the state legislature has placed a total cap on damages in medical malpractice cases. This includes the plaintiff's economic damages -- meaning payment for past and future medical care, lost income, and future lost earnings or harm to earning capacity -- as well as non-economic harm. The cap number that will apply in a given case varies depending on when the underlying malpractice allegedly took place.
Another wrinkle in Nebraska's med mal damages cap is that health care providers who qualify under the state's Hospital-Medical Liability Act won't pay more than $500,000 in total damages, and any amount above that $500,000 is paid out from the state's Excess Liability Fund (up to the relevant cap number, of course).
If you have more questions about Nebraska's medical malpractice laws and how they apply to your potential case, an experienced Nebraska medical malpractice attorney will have the answers.