The Nebraska Court of Appeals filed a decision on April 18, 2017 in a Nebraska medical malpractice case where one of the named medical malpractice defendants settled with the plaintiff before trial and the case proceeded to trial against the remaining medical malpractice defendant, which resulted in a defense verdict. The plaintiff, who is the special administrator of her mother’s estate, had filed a Nebraska medical malpractice wrongful death lawsuit against a certified registered nurse anesthetist (CRNA) and a surgeon, alleging that they committed medical malpractice and that their joint and several acts proximately caused injury to and the death of the plaintiff’s mother.
On January 23, 2012, the plaintiff’s mother had surgery to remove abdominal adhesions that was performed by the defendant surgeon and the defendant CRNA. The surgeon experienced difficulty insufflating the patient at the start of the laparoscopic procedure and opted to change to an open technique. Approximately five minutes into the procedure, the CRNA alerted the surgeon that the patient was doing poorly and that the procedure needed to be aborted.
The patient did not have a pulse and her condition did not improve once the insufflation gas was removed (the defendant surgeon contended that he was not informed of any change in the patient’s condition until she was in cardiac arrest). Oxygen was provided to the patient and the advanced cardiac life support protocol was implemented, including the administration of cardiopulmonary resuscitation (CPR), which was performed for 15 minutes. The patient was ultimately resuscitated and later transferred to another hospital, where she died on January 24, 2012.
The patient’s estate subsequently filed a Nebraska medical malpractice lawsuit against the surgeon, the CRNA, and others, alleging that their joint and several acts proximately caused the injury to and the death of the patient. The defendant CRNA and other defendants settled with the plaintiff and they were dismissed from the Nebraska medical malpractice lawsuit, leaving only the defendant surgeon and his medical practice as defendants.
The Nebraska medical malpractice jury found in favor of the defendants, and the plaintiff appealed. The only issue decided by the Nebraska medical malpractice jury was whether the defendant surgeon had negligently failed to place the patient is a specified position (head below her feet and on her left side) when he was notified that the laparoscopic procedure should be aborted, for which the jury found in the defendant’s favor.
The plaintiff argued on appeal that only one defendant remained at the time the case was submitted to the jury and therefore the jury should not have been permitted to allocate a percent of damages or negligence to the defendants who were no longer part of the proceedings. However, the Nebraska Appellate Court stated that under the comparative fault statutory scheme in Nebraska, although joint tort-feasors who are defendants in an action involving more than one defendant share joint and several liability to the claimant for economic damages, when the claimant settles with a joint tort-feasor, the claimant forfeits that joint and several liability, and the claimant cannot recover from the nonsettling joint tort-feasor more than that tort-feasor’s proportionate share in order to compensate for the fact that the claimant made a settlement with another that may prove to be inadequate.
The Nebraska Appellate Court stated that when there was more than one putative joint tortfeasor in the case—either because the claimant originally sued or later brought into the case more than one alleged joint tortfeasor or a defendant brought other putative joint tortfeasors into the case—and all but the one remaining alleged tortfeasor have been dismissed from the case pursuant to a release, covenant not to sue, or similar agreement, including the situation where the putative tortfeasor is dismissed pursuant to a settlement with the plaintiff, the applicable statutory section is Neb.Rev.Stat. § 25-21,185.11 (Reissue 2008), requiring a jury instruction on apportionment of damages.
The Nebraska Appellate Court held, “Given the pleadings, [the plaintiff’s] allegations of professional negligence by [the defendant surgeon] and [the defendant CRNA], and the evidence and testimony presented at trial, an instruction regarding the potential allocation of negligence was warranted.”
Source: Ammon v. Nagengast, 24 Neb. App. 632.
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