Latest News

5 May, 2018

Thinking of Suing Your Client for Unpaid Fees? Think Twice.

By |2018-07-03T14:54:20+00:00May 5th, 2018|Ethics, Litigation Tips, Nebraska Litigation & Trial Advisor|

  We've all been there. Long days.  Late nights. Slogging away for the benefit of your client. Then, when you send the bill to be paid for your time, nothing happens. Days, weeks and months go by, to no avail.  Your follow up letters, emails and phone calls fare no better.  The time has come to file suit to collect. Or has it? If you are contemplating filing an action to [...]

14 Dec, 2017

You did what?! Five Lessons for What to Do – and Not Do – As an Attorney

By |2018-04-23T20:50:32+00:00December 14th, 2017|Ethics, Litigation Tips, Nebraska Litigation & Trial Advisor|

When you practices in the area of legal malpractice defense, you get to see all of the creative ways attorneys get themselves in trouble, or find themselves on the receiving end of a malpractice suit or disciplinary proceedings. Most recently, I came across the story of an Ohio attorney who was indefinitely suspended by the Ohio Supreme Court after being convicted of unauthorized use of his client's property (a fourth degree [...]

10 Dec, 2014

Black box to be used to record surgery?

By |2018-04-23T23:57:55+00:00December 10th, 2014|Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management|

Surgeons: how would you like every move of the surgeries you perform recorded with a “black box” type device?  Such a device would make a record of every movement during a surgery, and potentially, provide real-time feedback to identify mistakes.  Not only would it record the surgery itself, it could record every word uttered by the medical team during a surgery. The potential and hopeful benefits include improved results and reduced [...]

28 Aug, 2014

No Sweeping Under the Rug

By |2018-04-24T00:00:14+00:00August 28th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

It happed in California several weeks ago.   After 2 ½ days of jury deliberation, the jury awarded a $4 million verdict against a hospital for allegedly covering up the cause of the post-operative death of a patient.  The jury did not find that the hospital committed malpractice and did not award punitive damages (which cannot be awarded in Nebraska). The patient had a surgical cervical disc.  Post operatively he had [...]

29 Jul, 2014

A success story: one clinic’s reduction of med-mal claims.

By |2018-04-23T23:57:55+00:00July 29th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

A hospital in Connecticut recently reported a drastic drop in both claims made and settlements paid after a safety training regime aided by the hospital’s med-mal insurer. In 2004, the hospital joined with its med-mal insurer in an effort to increase patient safety and in turn decrease claims made and amounts paid. Here’s what they did: -          standardized care, -          implemented new teamwork protocols, and -          enhanced oversight of clinical [...]

8 Jul, 2014

Florida throws out caps in med mal cases

By |2018-04-23T23:57:55+00:00July 8th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Tort Reform|

It's time for my somewhat regular update regarding the latest state to address the constitutionality of caps on damages in medical malpractice lawsuits.  Previously, I have discussed Kansas and Missouri and their judicial treatment of such caps. In its recent decision, the Florida Supreme Court threw out the state's statutory cap on non-economic damages in medical malpractice cases as violating the Equal Protection Clause of Florida's Constitution.  In a blistering [...]

27 Mar, 2014

AAJ Regional Trial Competition

By |2018-04-24T00:08:56+00:00March 27th, 2014|Cross Examination, Litigation Tips, Nebraska Litigation & Trial Advisor, Trial|

Last week I noted that I would be assisting with the AAJ Regional Trial Competition held in Omaha.  I served as a judge for what was, in my view, a very close round between two good teams.  Here are some of the trial tactics I was reminded of: Do not assume the presiding judge knows your case as well as you do.  This particularly true when responding to an objection [...]

27 Mar, 2014

He said she said he heard it from a friend….

By |2018-04-23T23:57:55+00:00March 27th, 2014|Health Care Law, HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

REO Speedwagon might have been discussing the Nebraska Supreme Court's recent opinion in C.E. v. Prairie Fields Family Medicine, P.C., 287 Neb. 667 (2014) in their famous song, "Take it on the Run." The Prairie Fields case dealt with the issue of whether a patient could sue a medical provider for intentional and negligent infliction of emotional distress for the alleged unauthorized disclosure of that patient's testing positive for HIV. In [...]

13 Feb, 2014

Questionable Autopsy Could Lead to Exposure for Physician

By |2018-04-23T23:57:55+00:00February 13th, 2014|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

 In an opinion released last week by the Nebraska Supreme Court, it indicated that a forensic pathologist who performed a poor autopsy could be liable for malicious prosecution when that autopsy formed part of the basis of criminal charges against a daycare provider. In McKinney v. Okoye, 287 Neb. 261 (2014) the Nebraska Supreme Court considered a malicious prosecution claim brought against a forensic pathologist whose testimony contributed to charges [...]

19 Jul, 2013

Prescribing of Controlled Substances Under Nebraska Law

By |2018-04-23T23:52:20+00:00July 19th, 2013|Litigation Tips, Midwest Medical Legal Advisor, Risk Management|

Under Nebraska law, it is unprofessional conduct to prescribe controlled substances to oneself, a spouse, child, parent, sibling, or “any person living in the same household as the prescriber.”  The only exception to this prohibition is in times of medical emergency.  The phrase "medical emergency" is not defined under the statutes - although it would presumably entail situations in which a family member would not have sufficient time to seek treatment elsewhere. The way [...]

25 Jun, 2013

The Impact of Unnecessary Surgery

By |2018-04-23T23:57:56+00:00June 25th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management, Tort Reform|

A recent article in USA Today posits that doctors perform thousands of unnecessary surgeries every year.  It claims that unnecessary surgeries might account for 10% to 20% of all operations in some specialties, including a wide range of cardiac procedures.  It generally cites three reasons as the cause of the problem: - doctors who enrich themselves by bilking insurers for operations that are not medically justified; - doctors who simply lack the competence [...]

14 Jun, 2013

The National Practitioner Databank

By |2018-04-23T23:57:56+00:00June 14th, 2013|Disciplinary Actions, Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

No doctor wants to be the target of a medical malpractice lawsuit.  Nor does any doctor want to be reported to the National Practitioner Databank.  I recently argued before the Eighth Circuit Court of Appeals in an attempt to remove a doctor’s name and report from the Databank. My main take-away from this experience: if and when you receive notice that you are the subject of a disciplinary proceeding where [...]

3 May, 2013

Nebraska Supreme Court rules that Physical Therapists are professionals

By |2018-04-23T23:57:56+00:00May 3rd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Earlier, we discussed whether Physical Therapists are professionals and whether a slip and fall can implicate professional negligence.  Last week, the Nebraska Supreme Court, in Churchill v. Columbus Community Hospital, agreed with my unofficial poll where a full 100% of the therapists polled considered physical therapists to be professionals (full disclosure: my polling sample size was one) and found that a slip and fall at a therapist’s clinic implicated professional negligence. The Churchill [...]

26 Apr, 2013

The Debate Over Work Hour Restrictions for Doctors in Training

By |2018-04-23T23:52:20+00:00April 26th, 2013|Health Care Law, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Time magazine recently published an article highlighting the controversy surrounding work hour restrictions placed upon doctors in training.  Work hour restrictions were initially enacted by the state of New York in 1987 in response to the death of an 18 year old female, caused by a medication prescribing error made by a resident in the middle of a 30 hour work shift.   As a result of the 18 year old’s death, [...]

16 Apr, 2013

Nebraska’s Good Samaritan Law and the Duty to Rescue

By |2018-04-23T23:52:20+00:00April 16th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

Does anyone remember the last episode from Seinfeld where Jerry, Elaine, George and Kramer end up in jail for failing to help an individual being held up at gunpoint? The arresting police officer cites the town’s “Good Samaritan” law as grounds for the arrest, which purports to impose upon citizens a duty to rescue. Unlike this fictionalized episode from Seinfeld, laws generally do not impose a duty to rescue.  In [...]

12 Apr, 2013

Nevada’s Runaway Jury

By |2018-04-23T23:57:56+00:00April 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

A Nevada jury says the state’s largest health management organization is liable for $24 million in compensatory damages to three plaintiffs in a negligence lawsuit stemming from a hepatitis C outbreak that became public in 2008. That was not all.  Unlike Nebraska, Nevada allows punitive damages.  The plaintiffs’ lawyer asked the jury to hold Health Plan of Nevada and Sierra Health Services responsible for another $1 billion in punitive damages [...]

11 Apr, 2013

Werner v. Platte County (Part II): Don’t Get Too Excited About the Excited Utterance Hearsay Exception

By |2018-04-23T20:50:32+00:00April 11th, 2013|Appellate Work, Cross Examination, Direct/Redirect Examination, Discovery, Litigation Tips, Nebraska Litigation & Trial Advisor, Trial, Witness Preparation|

   LDM Partner Cathy Trent-Vilim continues her discussion of her recent case in this post. You read in Part I of Werner v. Platte County how the Nebraska Supreme Court affirmed the trial court’s ruling that statements by Mr. Werner made to the EMT while at the scene of the accident qualified for the excited utterance exception to the hearsay rule.  The purpose of this post is to discuss why [...]

9 Apr, 2013

Werner v. Platte County (Part I): Get Excited About the Excited Utterance Hearsay Exception

By |2018-04-23T20:50:32+00:00April 9th, 2013|Appellate Work, Direct/Redirect Examination, Discovery, Litigation Tips, Nebraska Litigation & Trial Advisor, Trial, Witness Preparation|

LDM attorneys Cathy Trent-Vilim and Bill Lamson recently received a decision from the Nebraska Supreme Court affirming the maximum $1 million judgment obtained on behalf of Brian Werner in a suit against Platte County, Nebraska, arising from injuries Mr. Werner suffered while a passenger in a vehicle being pursued by a Platte County deputy. LDM Partner Cathy Trent-Vilim  discusses her recent case in this post. In appealing the judgment, Platte County [...]

9 Apr, 2013

Five Do’s and Don’ts of Deposition Preparation

By |2018-04-24T00:10:06+00:00April 9th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

Giving a deposition is a form of communication that is usually completely foreign to health care providers.  The surgeon who is in complete control of her operating suite may find herself utterly lost in a conference room surrounded by attorneys.  Some physicians become old hands at giving depositions, but for newcomers to the arena, emphasizing a few do’s and don’ts can make the process easier: DO Spend the time it [...]

3 Apr, 2013

Independent Medical Examinations

By |2018-04-23T23:57:56+00:00April 3rd, 2013|Litigation Tips, Midwest Medical Legal Advisor|

Independent medical examinations are a “hands on” way to evaluate the injuries claimed by a plaintiff.  With the ability (with some limits) of hand-picking the examiner, an IME is a great way to strengthen the defense of a given case. When a plaintiff has placed his medical condition in controversy, and the defending party has good cause, an independent medical examination of the claimant should be allowed. According to Rule [...]

26 Mar, 2013

Expanding Physician-Patient Confidentiality

By |2018-04-23T23:52:20+00:00March 26th, 2013|HIPAA, Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

On December 20, 2012, the Florida Supreme Court expanded the already far reaching scope of doctor-patient confidentiality.  In the case of Hasan v. Garvar, 2012 WL 6619334 (Fla.), a patient sued a dentist (referred to as Dentist #1 for purposes of this post) after the dentist failed to diagnose and treat a dental condition resulting in a bone infection. The patient subsequently sought treatment from a second dentist.  (Dentist #2).  Dentist [...]

22 Mar, 2013

Oregon passes law allowing presuit mediation of malpractice claims

By |2018-04-23T23:57:56+00:00March 22nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

Oregon recently passed a law, Senate Bill 483, creating a new mediation process for patients injured by medical mistakes.  The law allows injured patients to confidentially discuss, at a mediation, their claim and a possible settlement with the medical provider where the alleged negligence occurred.  What is the upside to this bill?  Participation is obviously voluntary.  Most significantly, the discussions would not be admissible in court if a lawsuit is [...]

15 Mar, 2013

When DHHS Comes Calling

By |2018-04-24T00:10:06+00:00March 15th, 2013|Disciplinary Actions, Litigation Tips, Midwest Medical Legal Advisor, Risk Management|

Every licensed health care provider dreads receiving that certified letter with the return address, “Nebraska Department of Health and Human Services, Investigations Division.”  Opening the letter doesn’t help matters:  “Dear sir or madam, we are gathering information regarding a complaint that has been made against you.  The complaint alleges that you blah, blah, blah.  Please provide your written response to this office no later than 14 days after receipt of [...]

12 Mar, 2013

Kansas: 1 Missouri: 0. The score on the constitutionality of non-economic damage caps

By |2018-04-23T23:57:56+00:00March 12th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Kansas recently became the eighteenth state to hold that statutory caps on non-economic damages are constitutional.  The court in Miller v. Johnson, No. 99,818 (Kan. Oct. 5, 2012) held that a Kansas statute did not violate the plaintiff's right to a trial by jury, due process, or equal protection, nor did it violate the separation of powers. The Miller court cited a number of familiar reasons for upholding the statutory cap [...]

1 Mar, 2013

Issues with high-low agreements in the medical malpractice context

By |2018-04-23T23:57:56+00:00March 1st, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

Should a high-low agreement waive the right to appeal?  Waiving the right to appeal, and the finality that this brings, is a potential benefit.  However, giving up the right to challenge any error or impropriety in the proceedings has its own risks, including dealing with an overzealous opposing attorney, who may be more willing to push the envelope at trial, knowing that an appeal has been waived.  It is at [...]

22 Feb, 2013

The Failure to Pass Board Examinations as Evidence in a Medical Malpractice Trial

By |2018-04-23T23:52:20+00:00February 22nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

So, you didn't pass your medical boards?  Or you didn't pass your medical boards on your first try?  Worried how it might affect your career as a physician?  Well, you can rest easy when it comes to malpractice suits.  Generally, a defendant physician's failure to pass board certifications is not admissible as to whether a physician complied with the standard of care.  While performance on a board certifying examination might [...]

18 Feb, 2013

Don’t Let Your Medical Record Invite Litigation

By |2018-04-24T00:10:06+00:00February 18th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

The medical record can be your best friend or your worst enemy in litigation.  More than that, a well documented record can prevent a lawsuit altogether.  In order to see how, one must understand the process of how a lawsuit comes to pass.  Whenever there is an unexpected or untoward outcome, the patient or the patient's family will have many questions.  The first and best source to answer those questions [...]

15 Feb, 2013

High-low Agreements in the Medical Malpractice Context

By |2018-04-23T23:57:57+00:00February 15th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Nebraska Hospital-Medical Liability Act, Risk Management|

In negotiating a high-low agreement in the medical malpractice context, there are any number of issues to consider, including whether a settlement pursuant to such an agreement is reportable to the National Practitioner Data Bank (“NPDB”), whether to waive post-trial motions and the right to appeal, how to deal with comparative fault, taxation of costs, and a hung jury. Generally speaking, a high-low agreement is a contract used to limit [...]

2 Feb, 2013

Falling on Your Scalpel: Admitting Fault in Medical Malpractice

By |2018-04-24T00:10:06+00:00February 2nd, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor, Risk Management|

In a previous post, I discussed the potential use of an apology to head off medical malpractice litigation.  In this post, I will discuss situations where a complete admission of fault may help bring about a more favorable outcome in such litigation.  Before I do so, however, I want to direct you to a superb article on the subject of physician apologies that was published last week by the Boston [...]

29 Jan, 2013

What is Malpractice?

By |2018-04-23T23:57:57+00:00January 29th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

What constitutes “malpractice?”  If a patient slips and falls while at the doctor’s office, does that implicate professional negligence?  Generally speaking, malpractice is defined as treatment by a doctor in a manner contrary to accepted standards of care which results in injury to the patient.  In Nebraska, medical malpractice and professional negligence are defined as follows: "Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider [...]

16 Jan, 2013

Are Physical Therapists Professionals?

By |2018-04-23T23:57:57+00:00January 16th, 2013|Litigation Tips, Medical Malpractice, Midwest Medical Legal Advisor|

According to the U.S. Bureau of Labor Statistics, there were 198,600 physical therapists in 2010.  Over the next 10 years, that number is expected to grow by 39%.  If you ask any physical therapist if he or she consider themselves to be a professional, the vast majority would likely answer in the affirmative.[1]  In my unofficial poll, a full 100% of the therapists polled considered physical therapists to be professionals.  [...]