Mark E. Novotny

Olivia McDowell

Partner Mark Novotny and Attorney Olivia McDowell recently obtained a dismissal of a medical malpractice lawsuit against a physician arising out of allegations of misdiagnosis.

Key to the success was an understanding and analysis of the Nebraska Rules of Civil Procedure for amendments of pleadings. The plaintiffs sought leave to amend their previously filed complaint to add a hospital as a party defendant but failed to request leave of the court to add a treating physician as well.  On motion, the court agreed that any and all claims against the physician should be dismissed, as leave to amend had not been properly obtained as required by Nebraska law. Though the plaintiffs had included the physician in a draft complaint attached to a motion to amend, the failure to include the physician in the motion to amend and proposed order was fatal to plaintiffs’ arguments. The court further found that future leave to add the physician as a party would be futile as the statute of limitations on the underlying claim, even giving plaintiffs the benefit of the discovery exception, had run and the physician was not added as a party within the requisite time frame.

While the case will continue as to the hospital and remaining defendants, this dismissal is a big win for the individual physician and demonstrates the importance of adherence and familiarity with the Nebraska Rules of Civil Procedure.