Beginning in June, the final valuation for properties in Nebraska will be released. After the final valuation are released, the window for protesting the valuation begins and ends July 1st. The valuation of property is important to taxpayers because it is the bases that is used to determine a taxpayer’s property tax liability. This blog post will discuss the timeline of property taxes and what to do if you [...]
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 [...]
If you are a healthcare practitioner wondering if you will be sued someday, the numbers are in: According to a recent study, on average 7.4% of all physicians (regardless of specialty) had a medical malpractice claim annually. By age 45, 36% of physicians in low-risk specialties and 88% in high-risk categories had at least one such claim. By age 65 those numbers skyrocket: 75% of physicians in low-risk, [...]
Patients who sue their healthcare providers in Iowa are required to file a certificate of merit from a qualified expert who attests the provider breached the standard of care. An Iowa statute requires them to file this certificate within sixty days of the provider’s answer, but before the start of discovery, or the patient’s case must be dismissed. The certificate of merit requirement has caused much consternation for [...]
A nurse practitioner (“NP”) is a type of Advanced Practice Registered Nurse (“APRN”). NPs are nurses with a graduate degree in advanced nursing. NPs are trained to diagnose illnesses, perform physical assessments, and prescribe medication (depending on state regulations) related to primary care and specialty services. This level of clinical judgment unfortunately opens the door for the medical malpractice lawsuits. The number of NPs in the U.S. has [...]
Maybe you have negotiated with your counterpart to include an arbitration provision in your construction contract or picked up a form contract that selects arbitration as the method of dispute resolution. Regardless of the circumstances, when the time and need for arbitration comes, the big question remains, who will be the arbitrator(s) tasked with the fate of my case, my client, my company or my project? When it comes down [...]
Just under six years have passed since Iowa enacted its medical malpractice certificate of merit requirement, codified at Iowa Code § 147.140. Iowa practitioners have paid close attention during these years as the Iowa Supreme Court and Iowa Court of Appeals have explored the requirement’s contours. And just this month, the Iowa Supreme Court outlined another layer of considerations Iowa practitioners must keep in mind while litigating medical [...]
Unfortunately, winning a case does not guarantee that you will collect money. The court is not responsible for collecting the judgment. Rather, if the judgment debtor (losing party) does not voluntarily pay the judgment to the judgment creditor (winning party), the judgment creditor must take action to collect. For construction cases, the issue becomes more complicated and nuanced where a construction lien is filed on real property owned by a [...]
PLEASE! Don’t go back and change the health care records after a bad medical outcome. Jurors in Atlanta in late 2022 awarded a $75 million verdict against a pair of Georgia hospital physicians who did just that. The 32-year-old male patient was taken to the ER. It was alleged the physicians failed to diagnose a brain stem stroke for over a day causing catastrophic paralysis. The patient’s family alleged [...]
The COVID-19 pandemic affected all Iowans, including those engaged in the practice of medicine. Individual practitioners bravely put themselves on the front line to combat a novel disease sweeping through Iowa. Hospitals treated more patients than they had before and worked around the clock to care for victims of the pandemic. Despite these efforts, legal experts predicted significant litigation would arise from missteps committed during the treatment of COVID-19 [...]
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 [...]
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 [...]
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, [...]
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 [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
You know the construction project is not going well when you are considering filing a construction lien. However, here is a little light at the end of the tunnel—you can now demand that the property owner pay you 12% annual interest on your claim from the date you filed your construction lien. A recent Nebraska Supreme Court decision made this right clear. In Echo Group v. Lund Ross, the material [...]
The long arms of the USDA Risk Management Agency (RMA) recently caught a Nebraska man for making false statements in the collection of a sizeable crop insurance claim. The end result was a sentence of 16 weekends of jail time, a $100 special assessment, a $30,000 fine and the kicker of $1,000,000 in restitution. The sentence was for a 2015 crop insurance claim with the investigation starting after the man [...]
Consider a scenario whereby an attending physician gives orders to a nursing staff to monitor a patient and report to the physician any changes in the patient’s condition. Despite the nursing staff’s constant monitoring, quick reporting to the attending physician, and implementation of further physician-guided treatment, the patient takes a turn for the worse. Will a lawyer be able to point the finger at those nurses and say they owed [...]
According to recent studies, most physicians and other health care providers (HCPs) use smartphones at work for a variety of purposes. These include accessing electronic health records, communicating with patients and other HCPs, managing their schedules, viewing live monitoring data from remote locations, and consulting with apps downloaded to provide drug, diagnostic, and treatment information…in addition to using them for personal communication. As a result, boundaries between professional and personal [...]
Understanding the statute of limitations for any case is an essential first step. However, determining whether a claim was timely filed is not always clear in medical malpractice cases. This is especially true when the patient continues receiving treatment after the alleged negligence. Under the Nebraska Hospital-Medical Liability Act, a patient must bring a medical malpractice lawsuit within two years of the allegedly wrongful act, or if such wrongful act [...]
In defending medical malpractice cases, we are often faced with issues pertaining to the accuracy of the medical records. It was originally thought that Electronic Medical Records (EMR) would provide a completely accurate contemporaneous record of what occurred in the medical care. Unfortunately, EMR is only as good as the efforts used to correctly input the data. Even the slightest discrepancy or ambiguity may result in protracted litigation. In the [...]
The general rule in Iowa is emotional distress damages are not recoverable in torts, “absent intentional conduct by a defendant or some physical injury to the plaintiff”. Miranda v. Said, 836 N.W.2d 8, 14 (Iowa 2013). This rule recognizes there is no duty in tort law to avoid causing emotional damages. Id. The duty to exercise ordinary care to avoid causing emotional harm is recognized only when supported by the [...]
Fresh from a mistrial due to COVID causing the jury panel to be deficient in number, I was thinking of some non-scientific observations about jurors, jury selection, and jury pools during our ongoing COVID era. Some juror’s attitudes have changed our jury venire and the possible areas of inquiry to “deselect” jurors in a very scientific area of litigation: medical malpractice lawsuits. Here are some observations and areas of inquiry [...]
Despite practicing in only one state, many physicians maintain licenses to practice in multiple states. Some maintain active licenses in states where they no longer practice just in case they decide to return at some time in the future. Others allow the licenses to lapse and become inactive, having no intention of practicing in the former state again. Physicians holding more than one medical license, whether active or inactive, should [...]
In Downing v. Grossman, an April 2022 decision, the Iowa Supreme Court reaffirmed that medical malpractice plaintiffs may not use allegations of fraudulent concealment to employ equitable estoppel to eviscerate the operation of Iowa Code § 614.1(9)’s a statute of repose when the alleged fraudulent concealment goes to the very “heart of” a plaintiff’s claim. To understand Downing, it is important to keep in mind the similarities and differences between [...]
Contractors working on federal projects continue to face losses caused by COVID. Recovering these losses is proving difficult and the Sovereign Acts Doctrine may make it even more difficult. The Sovereign Acts Doctrine balances the government’s dual role in acting as a contractor and the sovereign. When the sovereign takes action which is in the public good, a breach of contract action will not stand against the sovereign. In order [...]
The Supreme Court of the United States recently expanded the ability of states to recoup health care costs from accident victims under the Medicaid Act. The case, Gallardo v. Marstiller, involved injuries sustained by a plaintiff when she was hit by a motor vehicle as she stepped off a school bus in Florida. Florida’s Medicaid agency paid $862,688.77 for Ms. Gallardo’s initial medical expenses. Ms. Gallardo, through her parents, sued the [...]
When recently defending my physician client in a medical malpractice deposition, Plaintiff’s counsel started asking questions outside the lines. I objected and he immediately retorted back that I did not know the Rules of Evidence and that his questions were legitimate. He claimed certain testimony privileges only apply in criminal matters. I stood on my objections and my physician client followed my lead and did not answer the questions. But [...]
In 1986, Congress enacted the Emergency Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.S. § 395dd, which requires treatment of any person coming to an emergency department regardless of their insurance status or ability to pay. This is commonly referred to as the “anti-dumping” law. Although EMTALA is a federal regulation, hospitals and other healthcare facilities are subject to civil liability for EMTALA violations. Thus, it is important for [...]
Dave Schmitt, a partner at Lamson Dugan & Murray LLP, secured summary judgment for BNSF Railway in two separate toxic tort lawsuits. The United States District Court for the District of Nebraska dismissed both cases finding they were time-barred by FELA’s three-year statute of limitations, 45 U.S.C. § 56. In Salstrand v. BNSF Ry., No. 4:20-cv-3146 (D. Neb. 2022), the plaintiff was diagnosed with multiple myeloma on March 3, 2014. [...]
In Nebraska, comparing what is charged in medical expenses to what was actually accepted as a complete payment of those medical expenses, including the patient deductible, is important in litigating every medical malpractice case. The measure of recovery for medical expenses is the reasonable value of the medical services rendered. Stanek v. Swierczek, 209 Neb. 357, 307 N.W.2d 807 (1981). Plaintiff's attorneys frequently cite a provision of Nebraska's hospital lien [...]
Contractors are often surprised to learn that they do not have insurance coverage if the materials they provide fail. A recent case out of the 11th Circuit Court of Appeals (which oversees Alabama, Florida and Georgia), upheld the trial court’s ruling that a contractor’s insurer was not required to cover claims that the concrete it provided did not meet specifications. The controversy arose when Morgan Concrete (“Morgan”) agreed to supply [...]
As medical malpractice defense attorneys, we are often asked: Will the opposing party be able to find an expert to support what is believed to be a baseless claim of malpractice? We must respond that we do not know, but in the United States usually if you are willing to pay enough money, you can find an expert to say almost anything. There is a cottage industry of so-called expert [...]
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 [...]
In 2017, Iowa enacted a statute that aimed to dismiss meritless medical malpractice actions early in the case. The statute, Iowa Code § 147.140, requires that a plaintiff provide a certificate of merit signed by an expert within 60 days of the defendants’ answer. The certificate must address the standard of care and the defendant’s alleged breach of that standard. If the plaintiff fails to provide such a certificate, the [...]
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 [...]
They say the truth will set you free, but one nurse who told the truth about a medication error she committed in 2017 now faces up to 8 years in jail. On March 25, 2022, following a 3-day trial, RaDonda Vaught, a former nurse at Vanderbilt University Medical Center (VUMC), was found guilty of gross neglect and negligent homicide of 75-year-old Charlene Murphey. Murphey died as the result of Vaught administering a [...]
Contractors are no strangers to arbitration or mediation clauses in construction contracts. These provisions clearly identify the process for dispute resolution at the outset of a project rather than having to deal with disputes over how to resolve disputes. However, a recent case in Florida illustrates the importance of following the requirements of these provisions to protect your rights. In Leder v. Imburgia Constr. Servs., 325 So. 3d 256 (Fla. [...]
The statute of limitations is a frequent defense in medical malpractice cases. Patients are often reluctant to sue a physician with whom they have an ongoing relationship. This has led to many cases being filed after the statute of limitations has expired. In the past, patients have relied upon the vague and confusing “continuous treatment doctrine” to avoid the statute of limitations. That will now be much more difficult to [...]
