Nebraska Medical Malpractice Complaint (District Court — Hospital-Medical Liability Act)

NEBRASKA MEDICAL MALPRACTICE COMPLAINT (DISTRICT COURT)

Table of Contents

1. Court Caption
2. Parties, Jurisdiction, and Venue
3. Pre-Suit Status — Medical Review Panel (Voluntary) and Service on Director of Insurance
4. Statute of Limitations Compliance
5. Qualification Status of Defendants Under the Hospital-Medical Liability Act
6. Factual Allegations
7. Count I — Medical Negligence
8. Count II — Lack of Informed Consent
9. Count III — Negligent Hiring, Credentialing, Supervision, and Retention
10. Count IV — Vicarious Liability / Respondeat Superior / Apparent Agency
11. Count V — Corporate / Institutional Negligence
12. Count VI — Loss of Consortium (if spouse)
13. Count VII — Wrongful Death (if applicable)
14. Damages
15. Statutory Cap and Excess Liability Fund Allegations (if defendants qualified)
16. Comparative Fault and Several Liability for Noneconomic Damages
17. Apology Statute Notice
18. Demand for Jury Trial
19. Prayer for Relief
20. Verification (if required)
21. Signature Block
22. Sources and References

1. Court Caption

IN THE DISTRICT COURT OF [____________________] COUNTY, NEBRASKA

Case No. CI [_______________]

COMPLAINT AND DEMAND FOR JURY TRIAL

2. Parties, Jurisdiction, and Venue

1. Plaintiff [PLAINTIFF NAME] is an adult resident of [____________________] County, Nebraska, residing at [____________________________________________________________].

2. [If wrongful death:] Plaintiff [PR NAME] is the duly appointed Personal Representative of the Estate of [DECEDENT NAME], deceased, pursuant to Letters of Personal Representative issued [__/__/____] in Estate No. [____________] in the County Court of [____________________] County, Nebraska, and brings this action under the Nebraska Wrongful Death Act, Neb. Rev. Stat. §§ 30-809 to 30-810, for the benefit of the statutory beneficiaries.

3. [If minor:] Plaintiff [PARENT NAME] is the natural parent and next friend of [MINOR NAME], a minor born [__/__/____], and brings this action on the minor's behalf pursuant to Neb. Ct. R. Pldg. § 6-1117(c).

4. Defendant [PHYSICIAN NAME, M.D.] is, and at all times material was, a physician licensed to practice medicine and surgery in the State of Nebraska under Neb. Rev. Stat. §§ 38-2025 to 38-2046, with a principal office at [______________________________________________].

5. Defendant [MEDICAL GROUP] is a Nebraska [professional corporation / limited liability company / professional association] with its principal place of business at [______________________________________________], engaged in the business of providing medical and surgical services. Defendant [PHYSICIAN] was at all material times an employee, agent, and/or shareholder of Defendant [MEDICAL GROUP], acting within the course and scope of that employment and agency.

6. Defendant [HOSPITAL] is a [Nebraska nonprofit corporation / domestic business corporation / governmental subdivision / federally qualified health center] operating a hospital licensed by the Nebraska Department of Health and Human Services under Neb. Rev. Stat. §§ 71-401 et seq., with its principal place of business at [______________________________________________].

7. Defendants John/Jane Does 1 through 10 are physicians, nurses, residents, technicians, employees, agents, contractors, or other health care providers whose true identities are unknown to Plaintiff and will be substituted by amendment when ascertained.

8. Jurisdiction. Subject-matter jurisdiction is proper in this Court under Neb. Const. art. V, § 9, and Neb. Rev. Stat. § 24-302, because the amount in controversy exceeds the jurisdictional minimum of the County Court and the action sounds in tort.

9. Personal Jurisdiction. This Court has personal jurisdiction over each Defendant under Neb. Rev. Stat. § 25-536, because each Defendant resides in, is incorporated in, has its principal place of business in, and/or transacts business in Nebraska.

10. Venue. Venue is proper in [____________________] County under Neb. Rev. Stat. § 25-403.01, because [the cause of action arose in this county / one or more Defendants reside in this county / the act or omission complained of occurred at [HOSPITAL/CLINIC NAME] in this county].

3. Pre-Suit Status — Medical Review Panel (Voluntary) and Service on Director of Insurance

11. Plaintiff has complied with all conditions precedent under the Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-2855.

12. [ELECT ONE — Panel Reviewed:] Pursuant to Neb. Rev. Stat. §§ 44-2840 to 44-2847, Plaintiff initiated medical review panel proceedings by serving the Director of the Department of Insurance with a Proposed Complaint on [__/__/____]. A medical review panel was duly constituted under § 44-2841 and rendered its written opinion on [__/__/____]. A true and correct copy of the panel opinion is attached hereto as Exhibit A and is admissible as evidence under § 44-2844, but is not conclusive.

13. [ELECT ONE — Panel Waived:] Pursuant to Neb. Rev. Stat. § 44-2840, Plaintiff has affirmatively waived the right to medical review panel proceedings. Contemporaneously with the filing of this Complaint, Plaintiff has served a copy of this Complaint upon the Director of the Department of Insurance by [registered mail / certified mail / personal service] on [__/__/____], as required by § 44-2840.

14. [If applicable — Panel Opinion Adverse:] Plaintiff is not bound by the medical review panel's opinion. Under Neb. Rev. Stat. § 44-2844, the panel's report is admissible but not conclusive, and either party may call any panel member as a witness.

4. Statute of Limitations Compliance

15. The acts and omissions complained of occurred on or about [__/__/____].

16. Plaintiff [discovered / could not reasonably have discovered] the facts constituting professional negligence on or about [__/__/____].

17. This action is timely commenced within two (2) years of the alleged act or omission as required by Neb. Rev. Stat. §§ 25-222 and 44-2828, [or, in the alternative, within one (1) year of the date of discovery of the facts constituting the cause of action], and within ten (10) years of the date the professional service was rendered or failed to be rendered as required by § 25-222.

18. [If panel elected:] The statute of limitations was tolled under Neb. Rev. Stat. § 44-2843 from [__/__/____] (date of service of Proposed Complaint on the Director) until [__/__/____] (ninety (90) days after the panel's opinion).

19. [If minor:] The statute of limitations is tolled under Neb. Rev. Stat. § 25-213 because [MINOR NAME] was under twenty-one (21) years of age at the time of the alleged malpractice and remains under that age.

5. Qualification Status of Defendants Under the Hospital-Medical Liability Act

20. Upon information and belief, Defendant [PHYSICIAN] [is / is not] a "qualified" health care provider under Neb. Rev. Stat. § 44-2824, having [filed proof of financial responsibility and paid the annual surcharge to the Director of Insurance / failed to qualify under the Act and being subject to common-law liability under Neb. Rev. Stat. § 44-2821(2)].

21. Upon information and belief, Defendant [HOSPITAL] [is / is not] a "qualified" health care provider under Neb. Rev. Stat. § 44-2824.

22. Plaintiff reserves the right to amend this Complaint upon receipt of formal verification from the Department of Insurance regarding each Defendant's qualification status.

6. Factual Allegations

23. On or about [__/__/____], Plaintiff [DECEDENT/MINOR] presented to [HOSPITAL/CLINIC NAME] in [____________________] County, Nebraska, with the following history, signs, and symptoms: [____________________________________________________________].

24. Defendant [PHYSICIAN] undertook the medical care and treatment of Plaintiff [DECEDENT/MINOR] from [__/__/____] through [__/__/____], thereby creating a physician-patient relationship and a corresponding duty to exercise that degree of skill, care, and knowledge ordinarily possessed and exercised by physicians in the same or similar specialty under the same or similar circumstances.

25. The applicable standard of care required Defendant [PHYSICIAN] to: [____________________________________________________________].

26. Defendant [PHYSICIAN] breached the applicable standard of care by, among other acts and omissions: (a) [____________________________________________________________]; (b) [____________________________________________________________]; (c) [____________________________________________________________]; (d) failing to timely diagnose [CONDITION]; (e) failing to timely order [DIAGNOSTIC TEST/CONSULT]; (f) failing to recognize and respond to [SIGN/SYMPTOM]; (g) failing to communicate [CRITICAL FINDING] to [other treaters / patient / family]; (h) failing to obtain informed consent regarding [PROCEDURE / RISK / ALTERNATIVE]; and (i) [____________________________________________________________].

27. Defendant [HOSPITAL], by and through its employees, agents, residents, nurses, and ostensible agents, breached the standard of care applicable to [hospitals / health systems] by, among other acts and omissions: [____________________________________________________________].

28. As a direct and proximate result of the breaches alleged, Plaintiff [DECEDENT/MINOR] suffered: [____________________________________________________________], including [permanent injury / death / loss of chance of recovery / extended hospitalization / additional surgery / disability].

7. Count I — Medical Negligence

(Against All Defendants)

29. Plaintiff incorporates by reference paragraphs 1 through 28 as if fully set forth herein.

30. Each Defendant owed Plaintiff [DECEDENT/MINOR] a duty to exercise the care, skill, and knowledge ordinarily possessed and exercised by health care providers of the same specialty under the same or similar circumstances.

31. Each Defendant breached that duty as set forth above.

32. The breaches of duty were a direct and proximate cause of the injuries, damages, and losses alleged.

33. Plaintiff is entitled to recover all damages allowed by Nebraska law, subject only to the cap of Neb. Rev. Stat. § 44-2825 to the extent any Defendant is qualified under the Hospital-Medical Liability Act.

8. Count II — Lack of Informed Consent

(Against [PHYSICIAN] and [HOSPITAL])

34. Plaintiff incorporates by reference paragraphs 1 through 33 as if fully set forth herein.

35. Defendant [PHYSICIAN] performed [PROCEDURE / TREATMENT] on [__/__/____] without first obtaining the informed consent of Plaintiff [DECEDENT/MINOR / next of kin].

36. The applicable standard of care required Defendant [PHYSICIAN] to disclose: (a) the nature and purpose of the proposed procedure; (b) the material risks and complications, including [SPECIFIC RISKS]; (c) the reasonable alternatives, including [ALTERNATIVES]; and (d) the consequences of declining the procedure.

37. A reasonable patient in Plaintiff's position, if adequately informed, would not have consented to the procedure.

38. The lack of informed consent was a direct and proximate cause of the injuries and damages alleged.

9. Count III — Negligent Hiring, Credentialing, Supervision, and Retention

(Against [HOSPITAL] and [MEDICAL GROUP])

39. Plaintiff incorporates by reference paragraphs 1 through 38 as if fully set forth herein.

40. Defendant [HOSPITAL] owed Plaintiff a duty to use reasonable care in granting and renewing clinical privileges, in credentialing and re-credentialing physicians and allied health professionals, and in supervising the medical and nursing staff.

41. Defendant [HOSPITAL] breached that duty by [granting/renewing privileges to / failing to investigate / failing to act on adverse information regarding] Defendant [PHYSICIAN], who [had a pattern of substandard care / had been the subject of prior reports / had impaired credentials], all of which Defendant [HOSPITAL] knew or in the exercise of reasonable care should have known.

42. The breach was a direct and proximate cause of the injuries and damages alleged.

10. Count IV — Vicarious Liability / Respondeat Superior / Apparent Agency

(Against [HOSPITAL] and [MEDICAL GROUP])

43. Plaintiff incorporates by reference paragraphs 1 through 42 as if fully set forth herein.

44. At all material times, Defendants [PHYSICIAN], [NURSES], [RESIDENTS], and Doe Defendants were the actual or ostensible/apparent agents, employees, and/or servants of Defendant [HOSPITAL] and/or Defendant [MEDICAL GROUP], acting within the course and scope of that agency, employment, or apparent authority.

45. Defendants [HOSPITAL] and [MEDICAL GROUP] held out [PHYSICIAN] and the other care team members to the public, and to Plaintiff specifically, as their agents and employees, and Plaintiff justifiably relied on that holding-out in seeking and accepting care.

46. Defendants [HOSPITAL] and [MEDICAL GROUP] are vicariously liable for all negligent acts and omissions of their actual and apparent agents.

11. Count V — Corporate / Institutional Negligence

(Against [HOSPITAL])

47. Plaintiff incorporates by reference paragraphs 1 through 46 as if fully set forth herein.

48. Defendant [HOSPITAL] owed Plaintiff a non-delegable duty to: (a) maintain safe and adequate facilities and equipment; (b) select and retain only competent physicians and staff; (c) oversee all persons who practice medicine within its walls as to patient care; (d) formulate, adopt, and enforce adequate rules and policies to ensure quality care; and (e) provide appropriate staffing and training.

49. Defendant [HOSPITAL] breached one or more of those duties by [____________________________________________________________].

50. The breach was a direct and proximate cause of the injuries and damages alleged.

12. Count VI — Loss of Consortium

(By Spouse, if applicable, against All Defendants)

51. Plaintiff incorporates by reference paragraphs 1 through 50 as if fully set forth herein.

52. Plaintiff [SPOUSE NAME] is the lawful spouse of [INJURED PARTY] and was lawfully married on [__/__/____].

53. As a direct and proximate result of the negligence of Defendants, Plaintiff [SPOUSE NAME] has suffered loss of consortium, loss of services, loss of society and companionship, and loss of conjugal relations.

13. Count VII — Wrongful Death

(By Personal Representative, if applicable, against All Defendants)

54. Plaintiff Personal Representative incorporates by reference paragraphs 1 through 53 as if fully set forth herein.

55. The negligence of Defendants was a direct and proximate cause of the death of [DECEDENT NAME] on [__/__/____].

56. [DECEDENT NAME] is survived by the following statutory beneficiaries under Neb. Rev. Stat. § 30-810: [SPOUSE], [CHILDREN], [PARENTS] (as applicable).

57. Pursuant to Neb. Rev. Stat. §§ 30-809 and 30-810, the statutory beneficiaries are entitled to recover damages for the pecuniary loss they have sustained by reason of the death, including loss of support, loss of services, loss of society, comfort, and companionship, and loss of inheritance, together with reasonable funeral and burial expenses.

58. The Estate is also entitled to recover for the pre-death conscious pain, suffering, and medical expenses of [DECEDENT NAME] under the Nebraska survival statute, Neb. Rev. Stat. § 25-1401 et seq.

14. Damages

59. As a direct and proximate result of the acts and omissions of Defendants, Plaintiff has sustained damages, including but not limited to:

(a) Past and future medical, hospital, surgical, rehabilitation, prescription, prosthetic, and life-care expenses;

(b) Past and future lost earnings, lost earning capacity, and loss of household services;

(c) Past and future physical pain, suffering, mental anguish, emotional distress, and loss of enjoyment of life;

(d) Permanent disability, disfigurement, and impairment;

(e) [If wrongful death] All damages recoverable under the Nebraska Wrongful Death Act, including loss of support, society, comfort, and companionship to the statutory beneficiaries, and pre-death pain and suffering and medical expenses recoverable by the Estate;

(f) [If loss of consortium] Loss of consortium, services, society, and companionship by Plaintiff [SPOUSE];

(g) Funeral and burial expenses (if applicable);

(h) Pre-judgment interest as allowed by Neb. Rev. Stat. § 45-103.02; and

(i) Costs of suit and such other relief as the Court deems just and proper.

15. Statutory Cap and Excess Liability Fund Allegations

60. To the extent any Defendant is a "qualified" health care provider under Neb. Rev. Stat. § 44-2824, Plaintiff acknowledges the maximum amount recoverable under Neb. Rev. Stat. § 44-2825 for occurrences after December 31, 2014 is two million two hundred fifty thousand dollars ($2,250,000.00) total from all qualified health care providers and the Excess Liability Fund combined.

61. Each qualified Defendant's primary liability is limited to five hundred thousand dollars ($500,000.00) per occurrence under Neb. Rev. Stat. § 44-2824; amounts above five hundred thousand dollars ($500,000.00) per qualified Defendant, up to the total cap, are payable from the Excess Liability Fund under Neb. Rev. Stat. § 44-2829.

62. To the extent any Defendant is not a qualified health care provider, that Defendant is subject to common-law tort liability without the cap, pursuant to Neb. Rev. Stat. § 44-2821(2).

63. Plaintiff respectfully reserves and preserves all constitutional and statutory challenges to the application, calculation, and indexing of the cap as applied to Plaintiff's case, including (without waiver of Gourley's controlling authority) any as-applied challenge based on the facts adduced at trial.

16. Comparative Fault and Several Liability for Noneconomic Damages

64. Plaintiff was not contributorily negligent. To the extent the trier of fact finds any contributory negligence on the part of Plaintiff, Plaintiff's recovery shall be diminished proportionately under Neb. Rev. Stat. § 25-21,185.09, and shall not be barred unless Plaintiff's contributory negligence equals or exceeds the total negligence of all persons against whom recovery is sought.

65. Pursuant to Neb. Rev. Stat. § 25-21,185.10, the Defendants are jointly and severally liable for economic damages and severally liable only for noneconomic damages in proportion to each Defendant's percentage of fault.

17. Apology Statute Notice

66. Pursuant to Neb. Rev. Stat. § 27-1201, statements, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or general benevolence by a health care provider relating to an unanticipated outcome of medical care are inadmissible as evidence of liability or admission against interest. Notwithstanding § 27-1201, statements of fault that are otherwise admissible and that are part of or in addition to such communications remain admissible. Plaintiff reserves the right to offer such admissible statements of fault at trial.

18. Demand for Jury Trial

67. Plaintiff respectfully demands a trial by jury on all issues so triable, pursuant to Neb. Const. art. I, § 6, and Neb. Rev. Stat. § 25-1104.

19. Prayer for Relief

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally as to economic damages and severally as to noneconomic damages, as follows:

A. For all compensatory damages allowed by Nebraska law in an amount to be determined by the jury, subject only to such limits as may apply under Neb. Rev. Stat. § 44-2825 to the extent any Defendant is qualified;

B. For pre-judgment interest as allowed by Neb. Rev. Stat. § 45-103.02 and post-judgment interest at the statutory rate;

C. For taxable costs and disbursements;

D. For an order directing that any portion of the judgment exceeding the primary liability of each qualified Defendant be paid from the Excess Liability Fund pursuant to Neb. Rev. Stat. §§ 44-2825 and 44-2829; and

E. For such other and further relief as this Court deems just and equitable.

20. Verification

STATE OF NEBRASKA )
) ss.
COUNTY OF [_______] )

I, [PLAINTIFF NAME], being first duly sworn upon oath, depose and state that I am the Plaintiff in the above-captioned action, that I have read the foregoing Complaint, and that the factual allegations set forth therein are true and correct to the best of my knowledge, information, and belief.

______________________________
[PLAINTIFF NAME]

Subscribed and sworn before me this [___] day of [______________], 20[___].

______________________________
Notary Public

21. Signature Block

Dated: [__/__/____]

Respectfully submitted,

______________________________
[ATTORNEY NAME], #[NEBRASKA BAR NO.]
[FIRM NAME]
[STREET ADDRESS]
[CITY], NE [ZIP]
Telephone: [(___) ___-____]
Facsimile: [(___) ___-____]
Email: [_____________________________]

Attorney for Plaintiff

Certificate of Service

I hereby certify that on [__/__/____], I served a true and correct copy of the foregoing Complaint upon:

☐ Each Defendant via the [Sheriff of [_____] County / certified mail / private process server / counsel of record via Nebraska JUSTICE eFiling];

☐ The Director of the Nebraska Department of Insurance, 1526 K Street, Suite 200, Lincoln, NE 68508, by [registered / certified] mail, return receipt requested, pursuant to Neb. Rev. Stat. § 44-2840 (waiver of medical review panel).

______________________________
[ATTORNEY NAME]

22. Sources and References

• Nebraska Hospital-Medical Liability Act — Neb. Rev. Stat. §§ 44-2801 to 44-2855: https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=44
• Cap statute — Neb. Rev. Stat. § 44-2825: https://nebraskalegislature.gov/laws/statutes.php?statute=44-2825
• Qualification — Neb. Rev. Stat. § 44-2824: https://nebraskalegislature.gov/laws/statutes.php?statute=44-2824
• Medical Review Panel — Neb. Rev. Stat. §§ 44-2840 to 44-2847: https://nebraskalegislature.gov/laws/statutes.php?statute=44-2840
• Statute of Limitations — Neb. Rev. Stat. § 25-222: https://nebraskalegislature.gov/laws/statutes.php?statute=25-222
• Comparative Negligence / Several Liability — Neb. Rev. Stat. §§ 25-21,185.07 to .12: https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.10
• Apology statute — Neb. Rev. Stat. § 27-1201: https://nebraskalegislature.gov/laws/statutes.php?statute=27-1201
• Wrongful Death — Neb. Rev. Stat. §§ 30-809 to 30-810: https://nebraskalegislature.gov/laws/browse-chapters.php?chapter=30
• Gourley ex rel. Gourley v. Nebraska Methodist Health System, Inc., 265 Neb. 918, 663 N.W.2d 43 (2003): https://law.justia.com/cases/nebraska/supreme-court/2003/679-1.html
• Schmidt v. Ramsey, 860 F.3d 1038 (8th Cir. 2017)
• Nebraska Department of Insurance — Hospital-Medical Liability Act: https://doi.nebraska.gov/
• Nebraska Court Rules of Pleading in Civil Cases: https://nebraskajudicial.gov/supreme-court-rules/chapter-6-trial-courts/article-11-nebraska-court-rules-pleading-civil-cases