In Clark v. Scheels All Sports, Inc., 314 Neb. 49 (2023), the Nebraska Supreme Court hinted a longstanding paradigm that governed summary judgment procedure in medical malpractice actions is likely no more.
Before Clark, a defendant physician could prevail on summary judgment by preparing and submitting an affidavit that vouched for her or his care, after which the burden of proof shifted to the plaintiff to advance expert testimony to the contrary. See Keys v. Guthmann, 267 Neb. 649, 645-55, 676 N.W.2d 354 (2004). This burden demanded that the physician marshal foundational evidence to demonstrate familiarity with the relevant standard of care and treatment provided, as well as a basis from which he or she could conclude their treatment met the relevant standard of care.
But in 2017, Nebraska’s legislature revamped the state’s summary judgment procedure. As expressed in Clark, the new procedure, tracking the analogous federal procedure, “allow[s] a moving party to show the absence of a genuine dispute as to any material fact by showing that “an adverse party cannot produce admissible evidence to support the fact.” Therefore, under the new procedure, it is no longer necessary that a movant make an affirmative evidentiary showing. Instead, the movant can simply demonstrate the opposing party’s inability to meet its prima facie burden.
To be sure, Clark did not involve a claim against a physician. But its holding embraces a statutory interpretation that can easily be applied in medical malpractice cases. This application should have the effect of reducing the burdens faced by physicians mired in litigation—particularly cases of questionable merit.