Latest News

21 Oct, 2017

“Nebraska Nice”? Some Say Not As Friendly As Before

2018-04-23T20:50:32-05:00October 21st, 2017|In-House Counsel, Nebraska Litigation & Trial Advisor, Tort Reform|

If you track the periodic Lawsuit Climate Survey, published by the U.S. Chamber of Commerce’s Institute for Legal Reform, you know the 2017 rankings were issued last month.  The 2017 Survey constitutes the 11th fielding of the survey since the Institute for Legal Reform first began conducting its survey in 2002. The Survey This year’s survey was based on telephone and online surveys of 1,321 in-house counsel, senior litigators or [...]

23 Mar, 2015

Malpractice Payments Decrease

2018-04-23T23:57:54-05:00March 23rd, 2015|Medical Malpractice, Midwest Medical Legal Advisor, Risk Management, Tort Reform|

According to a new study appearing in the Journal of the American Medical Association, in the past ten years, the rate of medical malpractice claims resulting in some sort of payment has seen a drastic reduction. The study examined data from the National Practitioner Data Bank and the American Medical Association's Physician Masterfile to identify trends in the frequency of claims against doctors over a 19 year time period ending [...]

28 Aug, 2014

No Sweeping Under the Rug

2018-04-24T00:00:14-05:00August 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 [...]

21 Aug, 2014

Who is getting the money?

2018-04-24T00:00:14-05:00August 21st, 2014|Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

When it is determined that a medical malpractice / professional negligence lawsuit or claim needs to be settled, or when one of the few times a jury sides with the patient, money is paid.   Don’t be dismayed by what actually happens to the money.  Between contingent fee lawyer contracts paying the plaintiff’s lawyers up to 50% (these actually happen in Nebraska), to exorbitant expert witness fees to huge health are [...]

29 Jul, 2014

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

2018-04-23T23:57:55-05:00July 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 [...]

15 Jul, 2014

Will Obamacare increase the cost for med-mal insurance?

2018-04-23T23:57:55-05:00July 15th, 2014|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

A recent report by the Rand Corporation, sponsored by the U.S. Department of Health and Human Services, concludes that the cost of medical malpractice insurance may actually increase under the Affordable Care Act a/k/a Obamacare.  The increase could be up to 5% in some areas, although this is an early and inexact estimate. According to David Auerbach, the study's lead author and a policy researcher at RAND, “the Affordable Care Act [...]

8 Jul, 2014

Florida throws out caps in med mal cases

2018-04-23T23:57:55-05:00July 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 [...]

14 Jan, 2014

Nebraska Slowly Buying into Obamacare

2018-04-23T23:57:56-05:00January 14th, 2014|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

The Omaha World Herald recently reported that Nebraska has seen a surge in applicants for coverage under the Affordable Health Care Act aka Obamacare.  In its article, Obamacare: Health Plan Enrollment Surges in Iowa, Nebraska, the World Herald reports that, in Nebraska, 14,464 people had enrolled in a plan by the end of December.  That's more than seven times as many as the 1,965 Nebraskans who had enrolled through the [...]

23 Jul, 2013

Malpractice Litigation: The Neverending Story?

2018-04-24T00:00:15-05:00July 23rd, 2013|Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

 You have been sued.  How long until there is resolution of a professional negligence lawsuit?  Six months?  A year?  Maybe two?   Pyramids have been built faster than some cases get resolved. All participants want civil litigation over in a reasonable time, but medical malpractice lawsuits can become long and drawn out.  As noted in the Nebraska Supreme Court opinion of Simon v. Drake, M.D.,285 Neb. 784, __ N.W.2d __ (2013), [...]

17 Jul, 2013

More doctors are selling their practices

2018-04-23T23:57:56-05:00July 17th, 2013|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

More and more doctors are selling their practices due to rising business expenses and shrinking payouts from insurers.  The buyers?  Hospitals. According to a recent article from CNN, Doctors Bail out on their Practices, the number of physicians selling their practices to hospitals is up 30% to 40% in the last five years.  In the normal transaction, the selling doctor will then become an employee of the hospital along with [...]

5 Jul, 2013

Key requirement of the Affordable Care Act delayed

2018-04-23T23:57:56-05:00July 5th, 2013|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

On Tuesday, the U.S. Treasury Department announced a one-year delay in a key provision of President Barack Obama's sweeping health care law, the Affordable Care Act.  It postponed the provision that required businesses with more than 50 employees to provide their workers with health insurance or face fines.  The Treasury Department explained in its blog that the government needs time to simplify reporting requirements, and businesses need breathing room to adapt [...]

25 Jun, 2013

The Impact of Unnecessary Surgery

2018-04-23T23:57:56-05:00June 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 [...]

22 May, 2013

Is the Patient’s/Plaintiff’s Expert Witness Qualified to Testify Against You?

2018-04-24T00:00:15-05:00May 22nd, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Many years ago, in a Nebraska gynecological case alleging medical malpractice, an oncologist testified favorably as to the applicable standards of care relating to the defendant physician.   After the jury returned a verdict for the defense, the plaintiff appealed this inclusion of this expert witness’ opinions to the jury.  The Nebraska Court of Appeals upheld the decision in Hoffart v. Hodge, M.D, 9 Neb. App. 161, 609 N.W.2d 397 (2000).  [...]

17 May, 2013

Monetary Value of Malpractice Claims is Steadily Declining

2018-04-23T23:52:20-05:00May 17th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Last week I discussed a new study published by the journal BMJ Quality and Safety that analyzed malpractice claims since 1986 and found errors in diagnosis to be the worst offender for malpractice claims.  This week, my discussion centers on a similar analysis performed by Diedrich Healthcare.  Analyzing data gathered by the National Practitioner Data Bank, Diedrich Healthcare found that out of the $3.6 billion paid out for malpractice lawsuits in [...]

12 Apr, 2013

Nevada’s Runaway Jury

2018-04-23T23:57:56-05:00April 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 [...]

29 Mar, 2013

Missouri Moves to Reinstate Cap on Malpractice Damages

2018-04-24T00:10:06-05:00March 29th, 2013|Health Care Law, Midwest Medical Legal Advisor, Tort Reform|

On a 93-62 vote, the Missouri House passed a measure yesterday to reinstate that state's cap on non-economic damages in medical malpractice cases.  The cap had been declared unconstitutional by the Missouri Supreme Court last summer.  In that decision, the Missouri Supreme Court held that the cap violated the right to trial by jury found in the Missouri Consititution.  The Court found that, because there was a common law right [...]

22 Mar, 2013

Oregon passes law allowing presuit mediation of malpractice claims

2018-04-23T23:57:56-05:00March 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 [...]

12 Mar, 2013

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

2018-04-23T23:57:56-05:00March 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 [...]

7 Feb, 2013

Would Streamlining the Malpractice System Reduce Defensive Medicine?

2018-04-24T00:10:06-05:00February 7th, 2013|Health Care Law, Medical Malpractice, Midwest Medical Legal Advisor, Tort Reform|

Dr. Robert Glattner posted a very interesting article on Forbes.com yesterday that discusses the need for malpractice reform.  It is well worth the read.  I do have a couple of criticisms of his thesis, however. First, Dr. Glattner cites a recent RAND Corporation study for the proposition that "waiting for the resolution of [malpractice] claims can take up more than 10 percent of the average medical career."  While the study [...]