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Lawsuit to challenge state malpractice damages capTell North Platte what you think
 

The lawsuit filed by the Melvin family against two North Platte doctors, their practice, Great Plains Regional Medical Center, and a Missouri doctor challenged the constitutionality of Nebraska statute 44-2825.

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The statute placed caps on the maximum amount of damages that could be recovered in a malpractice suit, dating back to 1984.

The law laid out the maximum amounts recoverable as such:

• $500,000 for any occurrence on or prior to Dec. 31, 1984.

• $1 million for any occurrence between Dec. 31, 1984 and Dec. 31, 1992.

• $1.25 million for any occurrence between Dec. 31, 1992 and Dec. 31, 2003.

• $1.75 million for any occurrence after Dec. 31, 2003.

Since the incident the Melvins are suing over occurred in 1999, the most they could be awarded in damages should their suit be successful is $1.25 million.

The complaint filed in Lincoln County District Court stated that the damage cap violates the equal protection clause of both the United States and Nebraska constitutions and is inherently unfair to the most seriously injured malpractice victims.

Scottsbluff attorney Robert Pahlke, who filed the lawsuit for the Melvins, wrote that no legitimate relationship exists between insurance rates and the cap, and, “It is an irrational and arbitrary act to impose the cost of the intended benefit to the public solely upon a class consisting of those most severely injured by medical malpractice.”

The document further stated malpractice victims whose damages are less than the amount mandated by the cap are capable of recovering the entirety of their damages, “whereas a more seriously injured victim, like the plaintiffs in this case, would not be able to recover all their damages.” It is unequal and unfair, the suit alleged.

The cap also violates the Nebraska Constitutional Mandate that states, “the right of trial by jury shall remain inviolate,” the complaint claimed.

However, statute 44-2825’s page on the official website of the Nebraska Unicameral states under the Annotations section that the cap does not violate the principles of special legislation, equal protection, and the right to a jury trial. It cited the case Gourley vs. Nebraska Methodist Health System as legal precedent.

That case involved an Omaha family whose son suffered from cerebral palsy. They claimed that negligence on the part of the obstetrician that delivered the child caused neurological damage, resulting in the affliction.

In 1999 a jury awarded the plaintiffs $5.65 million dollars in damages. However, the judge overseeing the case immediately reduced the amount to the mandated $1.25 million.

The attempt by the family and their attorney’s to get that decision overturned ultimately failed in 2003.


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The North Platte Bulletin - Published 11/19/2009
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