William R. Settles has become a Fellow of the American College of Trial Lawyers, one of the premier legal associations in North America. The induction ceremony at which Mr. Settles became a Fellow took place recently before an audience of approximately 525 during the recent Spring Meeting of the College in Key Biscayne, Florida. Founded in 1950, the College is composed of the best of the trial bar [...]
Partner Cathy Trent-Vilim was recently published in the American Bar Association’s (ABA) 2023 Winter Issue of the Council of Appellate Lawyers. Her article, “The Dos and Don’ts of Crafting a Strategic and Helpful Amicus Brief,” shares how to craft an amicus brief in a way that will not only get the court’s attention, but also serve the brief’s fundamental purpose: helping the court. Click here to read the [...]
Legislative Bill 591: Proposed Changes Timeline for Notice to Terminate Verbal Lease Agreements Legislative Bill 591 (“LB 591”) proposes a different timeline for tenants leasing agricultural property to give notice to terminate their oral lease agreements. Nebraska does not have a statute governing these terminations, but the Nebraska Supreme Court has set clear guidelines, as further explained below. Current Nebraska Law In Wilson, the tenant had an oral [...]
Callie A. Kanthack, Attorney How have you advanced professionally since joining our team? Since being hired as an LDM Associate, I have had the opportunity to build and improve my litigation skills. During my first year, I took depositions, argued motions, second-chaired a trial, and wrote an appellate brief. Through this experiential learning process, I have received one-on-one feedback from LDM Partners and developed professional relationships among members [...]
Lamson Dugan & Murray LLP is pleased to announce that Craig F. Martin will be expanding his construction practice to include mediation of construction disputes. Craig is certified in mediation by the Supreme Court of Nebraska, having completed both the Nebraska Mediation Association and Advanced Federal Practice Mediation Training programs. For more than 25 years, Craig has helped construction clients resolve all types of construction disputes. During that [...]
Lamson Dugan & Murray LLP recently prevailed in the Iowa Court of Appeals in a case involving a patient subjected to an emergency hospitalization order. The patient sued the medical provider and law enforcement alleging claims of false imprisonment and false arrest. On review, The Court of Appeals, without opinion, affirmed the District Court’s grant of summary judgment to the defendants. Click here to read similar appellate news: [...]
Partner Mark E. Novotny presented to both hospital staff and medical staff at Antelope Memorial Hospital on February 17, 2023, in Neligh, Nebraska. Mr. Novotny addressed topics including: the Cures Act where patients can see clinical notes on their patient portal; refreshing healthcare professionals on medical record documentation requirements; and defensive & proper documentation. He also discussed the genesis and development of Electronic Medical Records, use of Audit [...]
Partner Cathy Trent-Vilim was recently elected to the Eighth Circuit Bar Association Board of Directors representing the state of Nebraska. The Bar Association was formed to improve and facilitate the administration of justice within the courts of the Eighth Circuit; to raise the standards of proficiency and integrity in federal practice; to develop and implement effective, efficient, and uniform rules of practice and procedure within the courts of [...]
Although an appeal comes after the trial is over, you should be thinking about hiring an appellate attorney long before the trial phase of a case. In fact, an appellate attorney can be a valuable resource throughout the pendency of your case in the trial court. How, you ask? First, you cannot appeal an error that has not been properly preserved. Appellate counsel can assist (both before and during trial) [...]
Partners Janice M. Thomas and Cathy Trent-Vilim recently won an appeal in the Iowa Court of Appeals. The case turned on whether an Iowa city owed a legal duty to a minor who was attacked by a dog while she was playing in her own yard. The minor, through her parents, alleged the city was negligent for failing to destroy the dog, which had not been vaccinated [...]
Partners Brian J. Brislen and Cathy Trent-Vilim recently prevailed in an appeal pending before the Nebraska Court of Appeals. The suit involved a family dispute over who should serve as trustee of a disabled brother’s irrevocable noncharitable trust. Under the terms of an amended trust agreement, the trust was being managed by a sister-in-law. Several siblings, however, challenged the validity of the amended trust agreement, claiming the [...]
Legislators, lobbyists, and laws – Oh my! Iowa’s 2023 Legislative Session kicked off on January 10, 2023, with Governor Kim Reynolds’ Condition of the State Address. This address marks Iowa’s ceremonial start to its legislative session each year. In her address, Governor Reynolds informed Iowans about her priorities for the coming year. One of Governor Reynolds’ stated priorities is enacting “common-sense tort reform to stop the out-of-control verdicts” that [...]
1. A Fresh Set of Eyes Even the most gifted trial attorney can develop blind spots in a case. An appellate specialist brings a fresh set of eyes to your case and see issues you do not see. Appellate attorneys can also bring a new perspective to the case. An appellate attorney with no stake in the arguments made in the trial court can take a more objective and dispassionate [...]
Partner Andrew C. Johnson obtained a defense verdict following a jury trial in Polk County, Iowa earlier this week. Plaintiff sought damages at trial in excess of $800,000, claiming a car accident caused by Andy’s client in 2018 resulted in permanent neck and back injuries. Following the accident, Plaintiff underwent several rounds of therapy, injections and radio frequency ablations before undergoing a cervical fusion in 2021. Plaintiff and [...]
Partner Adam R. Feeney was recently featured in The Nebraska Lawyer publication for his article, “Primer on Arbitration and Recent Developments in Arbitration Caselaw.” Arbitration is a binding form of private dispute resolution to which almost everyone has agreed, in one contract or another, certain of their claims are subject. In this article Adam seeks to provide an overview of what arbitration is and the ways courts enforce [...]
Nebraska State Capitol landscape at sunrise Three bills were submitted to the Nebraska Legislature this month that work to protect Nebraska farmers. LB 662 proposes a change to the Nebraska Right to Farm Act. This Act makes it harder for neighbors to sue farmers over nuisances. This bill further limits who is permitted to file a nuisance action and recover damages. LB 394 determines damages for taking [...]
Advanced practice providers, such as nurse practitioners and physician assistants, play a unique role in the care and treatment of patients. These providers see, treat, and consult with patients, many times expanding the level and types of care available to patients, especially in rural communities. Nebraska law encourages the use of advanced practice providers for efficiency and to expand care to areas where medical care may be limited. Nebraska law [...]
Cases that involve alleged brain injury often turn on expert battles over the results of sophisticated neuropsychological testing. These tests—such as the Minnesota Multiphasic Personality Inventory, the Luria-Nebraska Neuropsychological battery, and the Weschler Adult Intelligence Scale—represent the culmination of decades of specialized research. And these tests can often provide key insights into the examinees’ cognitive abilities. Like any test, these neuropsychological batteries can be gamed if the examinee has enough [...]
Amid unprecedentedly high verdicts recently awarded in Nebraska and other Midwest states, two bills were introduced this month in the Nebraska Legislature to amend sections of the Nebraska Hospital-Medical Liability Act (“Act”). Under this Act, damages against qualified healthcare providers for medical malpractice claims are capped at $2.25 million. To be a qualified provider under the Act, healthcare providers must be insured in the amount of $500,000 for each occurrence [...]
A new report issued by the Agency for Healthcare Research and Quality (AHRQ), dated December 15, 2022, alleges: “About 5.7% of patients seen in the emergency department (“ED”) receive an incorrect diagnosis with about 2.0% experiencing an adverse event because of the incorrect diagnosis; some of these adverse events are serious (~0.3%). This translates to about 1 in 18 ED patients receiving an incorrect diagnosis, 1 in 50 suffering an [...]
It happens far too often – you show up at a job site that ends up much different than what you anticipated. What is your best course of action? First, look at your contract. Do you have a differing site conditions or changed conditions clause? Absent such a clause, you may be required to assume any additional difficulty, burden, or expense. However, even in the absence of such a clause, [...]
It happens far too often – you show up at a job site that ends up much different than what you anticipated. What is your best course of action? First, look at your contract. Do you have a differing site conditions or changed conditions clause? Absent such a clause, you may be required to assume any additional difficulty, burden, or expense. However, even in the absence of such a clause, [...]
Partners Craig F. Martin and Daniel J. Waters presented at the 2023 Iowa LICA Convention on January 9. The Iowa Chapter Land Improvement Contractors of America (LICA) is a nonprofit association of contractors dedicated to the professional conservation of soil and water. Their annual convention is held over three days and provides educational sessions and workshops. Craig’s presentation focused on minimizing risk on construction projects and Dan [...]
There is a great misconception that all of the plaintiff’s medical records may be used in your defense when your patient sues you for medical malpractice. That is not true. Generally, medical records are hearsay (out of court statements) and are not admissible in court proceedings to use in your defense unless an exception to the hearsay rule applies. Good news-there are such exceptions; bad news-the exceptions are not as [...]
Lamson Dugan & Murray LLP (LDM) welcomes attorneys Andrew C. Johnson, Jason C. Palmer, Scott Wormsley, and Rachel R. Raymond. Johnson, Palmer and Wormsley join as partners in LDM’s West Des Moines location and Raymond is an associate in Omaha. Andy Johnson has an active trial practice and has tried numerous jury and nonjury trials over the last several years for a variety of clients. His practice areas include commercial [...]
Any electronically stored information that an entity collects, stores, and transmits that may identify a patient is considered electronic protected health information (ePHI). To protect their patients’ ePHI, a covered healthcare entity must implement hardware, software, and/ or procedural mechanisms that record and examine activity on the entity’s network. 45 CFR §164.312 (b). With almost all medical files being stored electronically today, audit logs are critical to an entity’s security [...]
Bryony J. Whitaker, Attorney What is your definition of success? I define success as maintaining a happy family life with my husband and two pups, balanced with a dynamic career where I’m dealt new challenges. Not to harp on the alleged mythical unicorn that is the ‘work life balance’ bandwagon, but I really do believe it is possible! Something that I’m still learning as I go along is [...]
Attorney Taylor J. Jurgens was recently elected to serve on the Board of Directors of NeighborGood (formerly known as the Tri-City Food Pantry) for a three-year term. NeighborGood is a food pantry located in Papillion, Nebraska that serves those in the Sarpy County area struggling with food insecurity. NeighborGood currently serves around 200 families every month with food and household items, and is in the process of building [...]
This blog has previously touched on importance of accurately documenting an Electronic Medical Record [EMR]. Document, Document, Document - Accurately! - Lamson Dugan & Murray LLP (ldmlaw.com). As the post explained, the “slightest discrepancy or ambiguity may result in protracted litigation.” But what happens when certain documents are deleted or are removed from the electronic medical record before or during litigation? This action may invoke a legal doctrine called spoliation. [...]
After the votes were tabulated, Partner Mark E. Novotny was selected by the attorneys of the Nebraska Bar Association to four Judicial Nominating Commissions: (1) Chief Justice of the Nebraska Supreme Court; (2) Nebraska Supreme Court; (3) Nebraska Court of Appeals; and (4) the District and County Courts of the Nebraska Fourth Judicial District. Judges in all levels of Nebraska Courts must first submit their names to the [...]
Partner Craig F. Martin presented to members of the Metro Omaha Builders Association (MOBA) where he discussed construction contracts and how to minimize risk. Click here for a copy of his handout.
I have had countless Plaintiffs’ attorneys ask for various forms of evidence involving interactions between the Iowa Department of Inspections and Appeals (DIA) and our client. And why wouldn’t they? The Iowa DIA works together with hospitals and medical providers to produce the best possible healthcare. Their inspections and subsequent findings are intended to find areas of improvement, not to identify breaches in the standard of care. To dig-up evidence [...]
Partner Cathy Trent-Vilim spoke at the NATA Seminar on December 2, 2022 in Omaha, Nebraska. The seminar focused on principles for trial practice where seasoned attorneys shared advice and strategies on various aspects of trial practice. Ms. Trent-Vilim presented on appellate practice pointers, which included rule changes related to creating a record for appeal and appellate brief formatting changes. To learn more about NATA click here. [...]
Partner Craig F. Martin presented at the Nebraska State Bar Real Estate Seminar on Construction Contracts After COVID. His presentation focused on updating construction contracts to address situations that were caused by the pandemic, like price escalation, supply chain disruptions, and delayed projects. Click here to get a copy of Craig’s handout.
Partner Maria T. Lighthall was recently appointed Chair of the Madonna Foundation Board of Directors and Ex Officio (voting member) of the Madonna Rehabilitation Hospital Board of Directors. “During the last year, 2,058 donors from 41 states helped support world-class rehabilitation on Madonna’s Lincoln and Omaha campuses. The $10 million raised for the Lincoln campus Expansion Project alone is testament to the generosity of our friends who help [...]
Partner Craig F. Martin presented as part of a panel on strategic business planning and evaluation at the Professional Remodeling Organization’s PRO Education Day on December 7, 2022. This panel discussed how to overcome operational challenges and build a stronger business. Click here to learn more about PRO.
Partner Mark E. Novotny, along with Nebraska Supreme Court Justice Jeffrey Funke, were on the judging panel for the championship round of the Nebraska 2022 High School Mock Trial competition put on by the Nebraska State Bar Association. Each year more than 1,000 students and teachers from high schools across Nebraska take part in the Judge Lyle Strom High School Mock Trial Program. Mr. Novotny had the privilege [...]
Senior Counsel Monte Schatz presented at the ACTEC 2022 MoKanNeb Meeting on December 3, 2022 in Kansas City, Missouri. Mr. Schatz addressed the analysis of the Nebraska Supreme Court decision in Chrisp v. Chrisp (In re: Estate of Chrisp), and its impact on the definition of the augmented estate and the elective share. His presentation provided an overview in light of the Chrisp decision of conflicting provisions between [...]
Partner Janice M. Thomas obtained an unanimous decision affirming summary judgment in her appeal Save our Stadiums v. Des Moines Independent School District. The Iowa Supreme Court upheld the district court’s summary judgment dismissing Save Our Stadium’s claims challenging the Des Moines Independent Community School District’s refusal to grant their petition for a public referendum on the funding for an athletic stadium. The plaintiffs, Save Our Stadiums, et. [...]
As most readers know, I am a Construction Attorney. I was drawn to this area of the law, not because I love to read 100+ page contracts, but by the people. I am consistently impressed with my clients' dedication to their craft, their integrity in working through difficulties, and their desire to leave the project, and the world, better than they found it. Throughout my days, in dealing with the [...]
Attorney Bryony J. Whitaker advocated at the Iowa Supreme Court on Wednesday, November 16. Bryony sought to gain clarity on Iowa's certificate of merit statute; an issue that is of great importance to the medical malpractice community. She talked about how the legislature created a mandatory dismissal right for defendants, demonstrated by the statute’s legislative history. Click here to watch.
Partner William R. Settles presented at the 2022 Nebraska Perinatal Quality Improvement Collaborative (NPQIC) Fall Summit in Kearney, Nebraska on Wednesday, November 9, 2022. The summit focused on physicians, advanced practice providers and nurse leaders, educating them on optimizing and creating effective health care teams to reduce perinatal mortality and morbidity. Bill’s presentation focused on current issues in medical malpractice. Click here to learn more about NPQIC. [...]
On November 8, 2022, voters in Nebraska approved a ballot measure to raise the statewide minimum wage to $15 an hour, up from $9. The measure, Initiative 433, will gradually increase the state’s wage floor to $15 an hour by 2026. The changes are designed to be made each year as follows: $10.50 on January 1, 2023; $12.00 on January 1, 2024; $13.50 on January 1, 2025; and $15.00 on [...]
Partner Patrick G. Vipond and Associate Olivia R. McDowell presented to a group of midwestern healthcare providers on the collaborative relationship between physicians and advanced practice providers, such as nurse practitioners and physician assistants, on November 1, 2022. Providers from Nebraska, Iowa, North Dakota, Minnesota, and Kansas attended. The presentation highlighted the legal framework for the physician-advanced practice practitioner relationship, best practices, and current trends in medical [...]
Partner Cathy Trent-Vilim attended the AJEI Summit in Scottsdale, Arizona, from November 10-13, 2022. The AJEI Summit is the nation’s premier appellate educational event with almost 400 appellate judges and practitioners in attendance. It features discussions on emerging trends, challenges, and legal issues affecting appellate practitioners and the judiciary. This summit is organized by the National Judicial College and the Appellate Judges Education Institute, with participation of the [...]
This past summer saw a Minnesota federal jury deliver what may be the state’s largest medical malpractice verdict to date. Though outside the jurisdictions LDM generally provides services in, this verdict offers an opportunity for defense practitioners to assess whether their clients may be at risk of incurring similar substantial judgments. The case, Thapa v. St. Cloud Orthopedic Associates, Ltd., arose from an injury a college student sustained during a [...]
Partner Sean A. Minahan presented to the Nebraska LEAD Class 40 on November 3, 2022 at the University of Nebraska – Lincoln. His presentation covered recent national and regional trends in agricultural law, including issues in farm succession planning, guardians and conservatorships, class action pesticide torts, right to farm laws, water rights and a case study in a recent farm lease dispute. The Nebraska LEAD program has been [...]
If you are involved in litigation, you have likely heard that most medical negligence cases are resolved prior to trial. You may not know the mechanics of how lawsuits reach resolutions. One of the most common methods is mediation. Mediation is a process in which the parties to a lawsuit meet with a neutral person (a mediator) who assists the parties with negotiating a settlement of the case. In recent [...]
Partner Adam R. Feeney was recently elected as Chair of the Nebraska State Bar Association’s Alternative Dispute Resolution Section. This section focuses on increasing awareness of and training in means of resolution of disputes outside of the court litigation, such as mediation and arbitration. Click here to learn more about the NSBA and this section.
Kyle Wallor, Partner Describe your career trajectory. In August 1994, I packed all my belongings into a 1984 Volvo 240DL and hauled them 1,400 miles from the beaches of Narragansett, Rhode Island to the mean streets of Mid-Town Omaha, Nebraska. All of that to attend Creighton Law School. (That 240DL was a sexy ride, just Google it). Thanks to our very own Frank Schepers calling in a favor [...]
