Lamson, Dugan and Murray, LLP, Attorneys at Law

Malpractice Litigation: The Neverending Story?

Posted in Medical Malpractice, 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 Joseph_Jefferson_as_Ripvanwinkle_by_Napoleon_SArony_(1821-1896)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), released on May 3, 2013, sometimes there is no end is sight.   In Simon, the patient started receiving hip injections in 2006 for chronic hip pain.  He developed a severe infection at the injection sight and ended up with a total hip replacement and extensive rehabilitation.  The lawsuit was filed and trial occurred with a defense verdict in favor of the physician.  An appeal to the Nebraska Court of Appeals affirmed the verdict for the defense/physician.   But it didn’t end there.  The patient appealed to the Nebraska Supreme Court, who overturned the jury verdict and the Nebraska Court of Appeals.  The Supreme Court ordered a new trial based upon whether a treating physician, under the facts of the case, could give expert testimony to the jury.  So, after four years of medical/surgical care, and four years of litigation, it was back to square one with re-scheduling and going through a new trial (and who knows how many more appeals).  The story in Simon v. Drake is far from over.

Eight years and no resolution?  Certainly that is the exception and not the rule.  But it is also by far not the worst.  Currently there is a set of on-going civil lawsuits against five physicians, a hospital and a clinic that date back to 1991.  Since that time, the plaintiff has tried to revive these lawsuits approximately 30 times including naming as defendants a half dozen trial judges and the Justices of the Nebraska Supreme Court and the Nebraska Court of Appeals.

The Nebraska court system has in place trial progression standards for keeping legal matters moving.  Those progression standards are currently being revised.  However, generally, any delay in getting your matter to resolution is rarely caused by the parties or their attorneys.  The Nebraska court system is seriously burdened with criminal and domestic relations lawsuits such that civil matters like these get very little priority.   And rightfully so.   There are “speedy trial” laws that push criminal matters to the front of the line and imminent issues of support, custody, and protection orders that need immediate attention in domestic relations matters.  Until some of the burden can be lifted from the court system, civil matters such as medical malpractice actions will wait at the end of the line.

Keep your civil defense attorney’s phone number on speed dial and his/her email address handy.  There is a chance you are going to have a looooong relationship.

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