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, [...]

  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 [...]

  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 [...]

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 [...]

  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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 [...]

In any medical malpractice case where a plaintiff claims your physician-client violated the applicable standard of care, one of the defense attorney’s first tasks is—or should be—to identify an expert to defend your client’s treatment.  At first glance, this task seems straightforward.  After all, the simple goal is to identify a person that can vouch for the care your client provided.  But states maintain distinct standards that sometimes differ as [...]

Opioid abuse has grown into a crisis that has occupied the headlines in recent years. The Centers for Disease Control and Prevention estimates that the total "economic burden" of prescription opioid misuse alone in the United States is $78.5 billion a year, including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement. The root of the problem is misuse of opioids prescribed for chronic pain. It is estimated [...]