(1) The Legislature finds and declares that it is in the public interest that competent medical and hospital services be available to the public in the State of Nebraska at reasonable costs, and that prompt and efficient methods be provided for eliminating the expense as well as the useless expenditure of time of physicians and courts in nonmeritorious malpractice claims and for efficiently resolving meritorious claims. It is essential in this state to assure continuing availability of medical care and to encourage physicians to enter into the practice of medicine in Nebraska and to remain in such practice as long as such physicians retain their qualifications.

(2) The Legislature further finds that at the present time under the system in effect too large a percentage of the cost of malpractice insurance is received by individuals other than the injured party. The intent of sections 44-2801 to 44-2855 is to serve the public interest by providing an alternative method for determining malpractice claims in order to improve the availability of medical care, to improve its quality and to reduce the cost thereof, and to insure the availability of malpractice insurance coverage at reasonable rates.

Annotations

The Nebraska Hospital-Medical Liability Act does not establish a public policy requiring that a professional liability insurance policy must provide coverage for sexual abuse inflicted by a physician upon his or her patient. R.W. v. Schrein, 263 Neb. 708, 642 N.W.2d 505 (2002).
This act held constitutional in regard to all questions of constitutionality raised in the answer. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

(1) As used in the Nebraska Hospital-Medical Liability Act, unless the context otherwise requires, the definitions in sections 44-2803 to 44-2817 shall apply.

(2) Any legal word or term of art used in the Nebraska Hospital-Medical Liability Act and not otherwise defined shall have such meaning as is consistent with common law.

Health care provider means: (1) A physician; (2) a certified registered nurse anesthetist; (3) an individual, partnership, limited liability company, corporation, association, facility, institution, or other entity authorized by law to provide professional medical services by physicians or certified registered nurse anesthetists; (4) a hospital; or (5) a personal representative as defined in section 30-2209 who is successor or assignee of any health care provider designated in subdivisions (1) through (4) of this section.

Physician shall mean a person with an unlimited license to practice medicine in this state pursuant to the Medicine and Surgery Practice Act or a person with a license to practice osteopathic medicine or osteopathic medicine and surgery in this state pursuant to sections 38-2029 to 38-2033.

Cross References

Medicine and Surgery Practice Act, see section 38-2001.

Patient shall mean a natural person who receives or should have received health care from a licensed health care provider under a contract, express or implied.

Hospital shall mean a public or private institution licensed pursuant to the Health Care Facility Licensure Act.

Cross References

Health Care Facility Licensure Act, see section 71-401.

Representative shall mean the spouse, parent, guardian, adult child, executor, administrator, trustee, attorney, or other legal agent of the patient.

Tort shall mean any legal wrong, breach of duty, or negligent or unlawful act or omission proximately causing injury or damage to another.

Malpractice or professional negligence shall mean that, in rendering professional services, a health care provider has failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities. In determining what constitutes reasonable and ordinary care, skill, and diligence on the part of a health care provider in a particular community, the test shall be that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.

Annotations

The applicable standard of care in medical malpractice cases is established by the Nebraska Hospital-Medical Liability Act and has a locality focus, but otherwise is consistent with the general common-law standard of care. Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).
Hospital policies and rules do not conclusively determine the standard of care owed. Green v. Box Butte General Hosp., 284 Neb. 243, 818 N.W.2d 589 (2012).
This section of the Nebraska Hospital-Medical Liability Act specifically provides for use of the locality rule. Fales v. Books, 253 Neb. 491, 570 N.W.2d 841 (1997).
Plaintiff failed to allege that defendants, in rendering professional services, failed to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by health care providers practicing in the community. Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994).

Health care shall mean any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's care, treatment, or confinement.

Risk manager shall mean an insurance company admitted to write insurance in Nebraska, which company shall be appointed by the director to manage the Residual Malpractice Insurance Authority.

Occurrence shall mean the event, incident, or happening, and the acts or omissions incident thereto, which proximately cause injuries or damages for which reimbursement is or may be claimed by the patient or his representative.

Insurer shall mean the authority or an insurance company engaged in writing malpractice liability insurance in this state.

Authority shall mean the Residual Malpractice Insurance Authority established pursuant to section 44-2837.

Informed consent shall mean consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Failure to obtain informed consent shall include failure to obtain any express or implied consent for any operation, treatment, or procedure in a case in which a reasonably prudent health care provider in the community or similar communities would have obtained an express or implied consent for such operation, treatment, or procedure under similar circumstances.

Annotations

Informed consent under this section does not need to be given in writing. Bank v. Mickels, 302 Neb. 1009, 926 N.W.2d 97 (2019).
Disclosure of a doctor's disciplinary history is necessary only when mandated by the standard of care. Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
To be "properly informed" under section 44-2820, a patient must be informed under the standard articulated in this section. Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
This section has been construed as a legislative enactment of the "professional theory" of a physician's duty to disclose the risks of a treatment or procedure. Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005).
A physician's duty to obtain informed consent is measured by what information would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004).
There are two parts to the definition of informed consent. The first part refers to the information that is provided to the patient regarding the procedure that is to be performed. The second part refers to the obligation of the health care provider to obtain the patient's express or implied consent to perform any operation, treatment, or procedure. Walls v. Shreck, 265 Neb. 683, 658 N.W.2d 686 (2003).
A hospital does not have a duty to obtain a patient's informed consent merely because it meets the statutory definition of "health care provider" as that term is used in this section. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997).
The standard of care in a medical malpractice or negligence action based on inadequate information for a patient's consent to an operation, treatment, or procedure is not determined by a defendant physician's personal or customary routine, but, rather, is based on information which physicians ordinarily supply to patients in like circumstances in the locality or similar localities. Under this section, Nebraska has adopted a "professional" theory, under which expert evidence is indispensable to establish what information would ordinarily be provided under the prevailing circumstances by physicians in the relevant and similar localities. Eccleston v. Chait, 241 Neb. 961, 492 N.W.2d 860 (1992).
The language of this statute is adopted for the purposes of malpractice actions against chiropractors. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).
Because of the definition of "informed consent" as outlined in this provision, the Legislature has committed this state to the "professional" theory of the duty of a physician to disclose the risks of a treatment. The professional theory provides that expert evidence is necessary to determine if the physician acted the same as a reasonable medical practitioner under the same or similar circumstances and similar locality. Smith v. Weaver, 225 Neb. 569, 407 N.W.2d 174 (1987).

Nonrefundable payments, benefits, or damages shall mean those payments, benefits, or damages which are not required to be refunded in event of recovery of damages pursuant to sections 44-2801 to 44-2855.

No liability shall be imposed upon any health care provider on the basis of an alleged breach of an express or implied contract assuring results to be obtained from any procedure undertaken in the course of health care, unless such contract is expressly set forth in writing and is signed by such health care provider or by an authorized agent of such health care provider. Nothing in this section shall exempt any health care provider from the standard of due care in administering any procedure undertaken.

Annotations

Plaintiff's petition did not allege a contract expressly set forth in writing, signed by defendants or their authorized agents regarding an express or implied contract ensuring the results to be obtained from the procedures undertaken by defendant in the health care of plaintiff. Hitzemann v. Adam, 246 Neb. 201, 518 N.W.2d 102 (1994).

(1) In any action for damages for bodily injuries or for wrongful death when it is alleged that the claimant suffered damages for the cost of medical care, custodial care or rehabilitation services, evidence which tends to establish that the claimant or another person so damaged has been or shall be reimbursed or paid for any such item of damage, cost, or expense, in whole or in part, by any nonrefundable medical reimbursement insurance shall not be admissible in evidence or brought to the attention of the jury, but such nonrefundable medical reimbursement insurance benefits, less all premiums paid by or for the claimant, may be taken as a credit against any judgment rendered. The matter of any credit to be deducted from a judgment shall be determined by the court in a separate hearing or upon the stipulation of the parties.

(2) Damages recoverable in any action shall be those losses which have been or shall be sustained by the claimant as a direct and proximate result of the defendant's wrongful acts as established by a preponderance of the evidence. In wrongful death actions, pecuniary loss to a widow or widower, any dependent, or next of kin shall be subject to all of the terms and provisions of sections 44-2801 to 44-2855.

Before the plaintiff may recover any damages in any action based on failure to obtain informed consent, it shall be established by a preponderance of the evidence that a reasonably prudent person in the plaintiff's position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages claimed.

Annotations

To be "properly informed" under this section, a patient must be informed under the standard articulated in section 44-2816. Curran v. Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
The language of this statute is adopted for the purposes of malpractice actions against chiropractors. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987).

(1) Any health care provider who fails to qualify under the Nebraska Hospital-Medical Liability Act shall not be covered by the provisions of such act and shall be subject to liability under doctrines of common law. If a health care provider shall not so qualify, the patient's remedy shall not be affected by the terms and provisions of the act.

(2) If a health care provider shall qualify under the act, the patient's exclusive remedy against the health care provider or his or her partner, limited liability company member, employer, or employees for alleged malpractice, professional negligence, failure to provide care, breach of contract relating to providing medical care, or other claim based upon failure to obtain informed consent for an operation or treatment shall be as provided by the act unless the patient shall have elected not to come under the provisions of the act. Unless the patient or his or her representative shall have (a) elected not to be bound by the terms of the act, (b) filed such election with the director in advance of any treatment, act, or omission upon which any claim or cause of action is based, and (c) notified the health care provider of election as soon as is reasonable under the circumstances that such patient has so elected, it shall be conclusively presumed that the patient has elected to be bound by the terms and provisions of the act. Such election may be made by either legal parent for an unborn or newborn child. Unless a legal parent of an unborn child or the guardian or other representative of a minor or incompetent makes the election in the manner provided in the act for such unborn person, minor, or incompetent, such person shall be deemed to be subject to the terms and provisions of the act.

(3) An election of a patient not to be bound by the act shall be effective for a period of two years after filing unless such election is withdrawn by the patient and shall be ineffective after such two-year period unless renewed in writing and filed with the director. The patient or his or her representative may revoke the election in writing at any time and a copy of such revocation shall be forwarded to the director within five days after the same is made.

(4) Each health care provider who has qualified under the act shall post and keep posted in his or her waiting room or other suitable location a sign of a size and type to be prescribed by the director stating: (name of health care provider) has qualified under the provisions of the Nebraska Hospital-Medical Liability Act. Patients will be subject to the terms and provisions of that act unless they file a refusal to be bound by the act with the Director of Insurance of the State of Nebraska.

Annotations

Whether or not a hospital did in fact qualify under the act was unimportant as no prejudice resulted from the standard of care instruction given to the jury. Gilbert v. Archbishop Bergan Mercy Hospital, 228 Neb. 148, 421 N.W.2d 760 (1988).
The health care provider and patient both remain subject to the act until disposition, if the claim arose when both were so subject. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

Subject to the requirements of sections 44-2840 to 44-2846, a patient or his or her representative having a claim under the Nebraska Hospital-Medical Liability Act for bodily injury or death on account of alleged malpractice, professional negligence, failure to provide care, breach of contract, or other claim based upon failure to obtain informed consent for an operation or treatment may file a petition or complaint in any court of law having requisite jurisdiction. No dollar amount or figure shall be included in the demand in any malpractice petition or complaint, but the petition shall ask for such damages as are reasonable in the premises.

(1) To be qualified under the Nebraska Hospital-Medical Liability Act, a health care provider or such health care provider's employer, employee, partner, or limited liability company member shall:

(a) File with the director proof of financial responsibility, pursuant to section 44-2827 or 44-2827.01, in the amount of eight hundred thousand dollars for each occurrence. An aggregate liability amount of three million dollars for all occurrences or claims made in any policy year or risk-loss trust year for each named insured shall be provided. Such policy may be written on either an occurrence or a claims-made basis. Any risk-loss trust shall be established and maintained only on an occurrence basis. Such qualification shall remain effective only as long as insurance coverage or risk-loss trust coverage as required remains effective; and

(b) Pay the surcharge and any special surcharge levied on all health care providers pursuant to sections 44-2829 to 44-2831.

(2) Subject to the requirements in subsections (1) and (4) of this section, the qualification of a health care provider shall be either on an occurrence or claims-made basis and shall be the same as the insurance coverage provided by the insured's policy.

(3) The director shall have authority to permit qualification of health care providers who have retired or ceased doing business if such health care providers have primary insurance coverage under subsection (1) of this section.

(4) A health care provider who is not qualified under the act at the time of the alleged occurrence giving rise to a claim shall not, for purposes of that claim, qualify under the act notwithstanding subsequent filing of proof of financial responsibility and payment of a required surcharge.

(5) Qualification of a health care provider under the Nebraska Hospital-Medical Liability Act shall continue only as long as the health care provider meets the requirements for qualification. A health care provider who has once qualified under the act and who fails to renew or continue his or her qualification in the manner provided by law and by the rules and regulations of the Department of Insurance shall cease to be qualified under the act.

Annotations

The Nebraska Hospital-Medical Liability Act does not have application to acts of negligence committed by otherwise qualified health care providers outside the boundaries of this state. Harper v. Silva, 224 Neb. 645, 399 N.W.2d 826 (1987).

(1) The total amount recoverable under the Nebraska Hospital-Medical Liability Act from any and all health care providers and the Excess Liability Fund for any occurrence resulting in any injury or death of a patient may not exceed (a) five hundred thousand dollars for any occurrence on or before December 31, 1984, (b) one million dollars for any occurrence after December 31, 1984, and on or before December 31, 1992, (c) one million two hundred fifty thousand dollars for any occurrence after December 31, 1992, and on or before December 31, 2003, (d) one million seven hundred fifty thousand dollars for any occurrence after December 31, 2003, and on or before December 31, 2014, and (e) two million two hundred fifty thousand dollars for any occurrence after December 31, 2014.

(2) A health care provider qualified under the act shall not be liable to any patient or his or her representative who is covered by the act for an amount in excess of eight hundred thousand dollars for all claims or causes of action arising from any occurrence during the period that the act is effective with reference to such patient.

(3) Subject to the overall limits from all sources as provided in subsection (1) of this section, any amount due from a judgment or settlement which is in excess of the total liability of all liable health care providers shall be paid from the Excess Liability Fund pursuant to sections 44-2831 to 44-2833.

(4) Nothing in the Nebraska Hospital-Medical Liability Act shall be construed to require the Excess Liability Fund to provide coverage for the first eight hundred thousand dollars per occurrence or to provide a defense for or on behalf of a qualified health care provider after the provider's annual aggregate limit of liability amount set forth in sections 44-2824 and 44-2827 has been exhausted. A qualified health care provider's purchase of coverage with an aggregate limit of liability higher than required by sections 44-2824 and 44-2827 shall not affect the obligation of payment from the Excess Liability Fund pursuant to this section.

Annotations

The cap on damages in subsection (1) of this section does not violate principles of special legislation, equal protection, the open courts provision, the right to a remedy, the right to a jury trial, the taking of property, and the separation of powers. Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43 (2003).

(1) Any payment made by a health care provider or his insurer to or for the patient or any other person in the patient's behalf in advance of a final determination of liability of all health care providers shall not be construed as an admission of liability for injuries or damages suffered in any action brought under sections 44-2801 to 44-2855.

(2) Evidence of an advance payment shall not be admissible until there is a final judgment in favor of the plaintiff, in which event the court shall reduce the judgment to the plaintiff by the amount of such advance payment. The advance payment shall inure to the exclusive benefit of the defendant making the payment. If the advance payment exceeds the liability of the defendant, the court shall order any adjustment necessary to equalize the amount which each defendant is obligated to pay, exclusive of costs. In no case shall an advance payment in excess of the amount found to be due from any health care provider be repayable to the health care provider making it.

(3) A patient's claim for compensation under sections 44-2801 to 44-2855 shall not be assignable.

Financial responsibility of a health care provider may be established only by filing with the director proof that the health care provider is insured pursuant to sections 44-2837 to 44-2839 or by a policy of professional liability insurance in a company authorized to do business in Nebraska. Such insurance shall be in the amount of eight hundred thousand dollars per occurrence, and an aggregate liability amount of three million dollars for all occurrences or claims made in any policy year shall be provided. The filing shall state the premium charged for the policy of insurance.

(1) Any general acute hospital as defined in section 71-412 or a psychiatric or mental hospital as defined in section 71-426 operated by the Board of Regents of the University of Nebraska or any physician employed by the Board of Regents of the University of Nebraska may, in addition to the methods of establishing financial responsibility provided in section 44-2827, establish financial responsibility by a risk-loss trust.

(2) In order to establish financial responsibility through the use of a risk-loss trust, the risk-loss trust shall be approved in writing by the director. Such approval shall expire on the last day of April in each year and shall be renewed annually thereafter if the risk-loss trust continues to comply with the requirements of the Nebraska Hospital-Medical Liability Act and any rules and regulations adopted and promulgated thereunder.

(3) The director shall approve the use of a risk-loss trust to establish financial responsibility if he or she determines from a review of the plan of operation or feasibility study for the risk-loss trust that (a) the risk-loss trust will comply with all of the applicable requirements of the act, (b) the risk-loss trust has a financial plan which provides for adequate funding and adequate reserves to establish and maintain financial responsibility, and (c) the risk-loss trust has a plan of management designed to provide for its competent operation and management.

(4) Any risk-loss trust shall be established and maintained only on an occurrence basis, shall maintain reserves for payment of claims, and shall process and act upon claims in accordance with guidelines acceptable for Nebraska domestic insurance companies. The funds, or any part thereof, of any risk-loss trust may be invested as authorized under the Insurers Investment Act for any domestic property and casualty insurance company.

(5) Any risk-loss trust shall file with the director, on or before March 1 of each year, a financial statement under oath for the year ending December 31 immediately preceding which shall include an actuarial or loss reserve specialist's opinion. The trust shall annually be audited by an independent accountant, and such audit shall be filed with the director.

(6) The director may examine the business affairs, records, and assets of such risk-loss trust to assure that it will be able to establish and maintain financial responsibility. Any examination conducted by the director or his or her authorized representative shall be at the expense of the risk-loss trust.

(7) If the director finds after notice to the Board of Regents of the University of Nebraska and a hearing that the risk-loss trust is not maintaining financial responsibility, he or she may order the board to take such action as is necessary to establish financial responsibility and upon failure by the board to comply therewith may revoke approval of such trust.

(8) If any hospital or physician establishes financial responsibility as provided in subsection (1) of this section, the annual surcharge amount which shall be levied against the board pursuant to section 44-2829 shall be established annually by the director after giving consideration to the following factors:

(a) The surcharge rate for hospitals and physicians set by the director pursuant to such section;

(c) Variations in coverage provisions, liability limits, or deductibles between insurance provided by private insurers and the coverage provided by the risk-loss trust; and

(9) The director may adopt and promulgate reasonable rules and regulations necessary and proper to carry out this section.

Cross References

Insurers Investment Act, see section 44-5101.

Except as provided in section 25-213, any action to recover damages based on alleged malpractice or professional negligence or upon alleged breach of warranty in rendering or failing to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failing to render professional services providing the basis for such action, except that if the cause of action is not discovered and could not be reasonably discovered within such two-year period, the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may any action be commenced to recover damages for malpractice or professional negligence or breach of warranty in rendering or failing to render professional services more than ten years after the date of rendering or failing to render such professional service which provides the basis for the cause of action.

Annotations

The continuous treatment doctrine for limitations in a malpractice action applies only for incorrect treatment based on misdiagnosis or other continuing course of negligent treatment. Bogue v. Gillis, 311 Neb. 445, 973 N.W.2d 338 (2022).
While section 30-810 includes a general statute of limitations applicable to wrongful death actions, this section is a subsequently enacted special statute of limitations applicable to all personal injury and wrongful death actions against health care providers who have taken the necessary steps to qualify under the Nebraska Hospital-Medical Liability Act. Alegent Health Bergan Mercy Med. Ctr. v. Haworth, 260 Neb. 63, 615 N.W.2d 460 (2000).
The discovery exception contained in this section is a tolling provision which permits the filing of an action after the 2-year period only in those circumstances where the cause of action was not discovered and could not reasonably have been discovered within that period. Weaver v. Cheung, 254 Neb. 349, 576 N.W.2d 773 (1998).
The language in this section is identical in all material respects to that contained in section 25-222, which applies to professional negligence actions governed by the common law. Giese v. Stice, 252 Neb. 913, 567 N.W.2d 156 (1997).
In medical malpractice cases, the period of limitations or repose begins to run when the treatment rendered after and relating to the allegedly wrongful act or omission is completed. Healy v. Langdon, 245 Neb. 1, 511 N.W.2d 498 (1994).
The Nebraska Hospital-Medical Liability Act provides for the filing of medical malpractice claims against health care providers within 2 years from the date of the negligent treatment. Jacobson v. Shresta, 21 Neb. App. 102, 838 N.W.2d 19 (2013).
The Nebraska Hospital-Medical Liability Act provides a 2-year statute of limitations for medical malpractice claims unless the cause of action could not have been reasonably discovered within the 2 years, and then the action may be brought within 1 year from the date of discovery. Hampton v. Shaw, 14 Neb. App. 499, 710 N.W.2d 341 (2006).

(1) There is hereby created an Excess Liability Fund to be collected and received by the director for the exclusive use and purposes stated in the Nebraska Hospital-Medical Liability Act. Such fund and any income from it shall be held by the State Treasurer in trust, deposited in a separate account, and invested and reinvested pursuant to law.

(2) To create the fund, an annual surcharge shall be levied on all health care providers in Nebraska who have qualified under sections 44-2824 and 44-2827. The surcharge for each health care provider shall be determined by the director subject to the following limitations:

(a) The annual surcharge shall not exceed fifty percent of the annual premium paid by such health care provider for maintenance of current financial responsibility as provided in sections 44-2827 and 44-2837 to 44-2839; and

(b) The charge shall not exceed the amount necessary to maintain the fund in the amount stated in section 44-2830.

(3) Such surcharge and any primary insurance premiums due under sections 44-2837 to 44-2839 shall be due and payable within thirty days after the health care provider has qualified in Nebraska pursuant to section 44-2824 and shall be payable annually thereafter in such amounts as may be determined by the director insofar as the surcharge is concerned and by the risk manager insofar as primary liability coverage is concerned.

(4) The net premiums payable for primary insurance provided by the risk manager pursuant to sections 44-2837 to 44-2839 shall be deposited in the fund at least annually by the risk manager.

(5) If the annual premium surcharge or premiums for primary insurance under sections 44-2837 to 44-2839 are not paid within the time specified in subsection (3) of this section, the qualification of the health care provider under section 44-2824 shall be suspended until the annual premiums are paid. Such suspension shall not be effective as to patients claiming against the health care provider unless, at least thirty days before the effective date of the suspension, a written notice giving the date upon which the suspension becomes effective has been provided by the director to the health care provider.

(6) The Director of Insurance, as administrator of the fund, shall be responsible for legal defense of the fund. The director, using money from the fund as deemed necessary, appropriate, or desirable, may purchase the services of persons, firms, and corporations to aid in protecting the fund against claims. The Department of Justice shall not be responsible for legal defense of the fund. All expenses of collecting, protecting, and administering the fund shall be paid from the fund.

If the fund shall exceed the sum of four million five hundred thousand dollars at the end of any calendar year after the payment of all claims and expenses and after adding all reversions to the fund, and if no reinsurance is involved, the director shall reduce the surcharge required by section 44-2829 in order to maintain the fund at an approximate level of five million dollars. Beginning on January 1, 1985, and on January 1 of each succeeding year, the director shall adjust the amount of the surcharge to maintain the fund at a level which is sufficient to pay all anticipated claims for the next year and to maintain an adequate reserve for future claims. Prior to making such an adjustment, the director shall conduct a public hearing concerning the proposed adjustment and shall give due regard to the size of the existing fund, the number and size of potential claims against the fund, the number of participating providers, changes in the cost of living, and sound actuarial principles. If the fund is reinsured, the director shall determine a lesser level at which the fund shall be maintained because of the reinsurance carried and may reduce the surcharge to provide for the reinsurance and maintain the fund at the lesser level determined by him or her to be reasonable under the circumstances.

(1) The director may, at any time, analyze the fund to determine if the amount in such fund is inadequate to pay in full all claims allowed or to be allowed during the calendar year. Upon such determination, the director shall have the power to levy a special surcharge on all health care providers who have qualified under the Nebraska Hospital-Medical Liability Act, which special surcharge shall be an amount sufficient to permit full payment of all claims allowed against the fund during a calendar year. The special surcharge shall be levied against all health care providers who have qualified under the Nebraska Hospital-Medical Liability Act on the date of the special surcharge or at any time during the preceding twelve months and shall be in an amount proportionate to the surcharge each health care provider has paid to the fund. Such special surcharge shall be due and payable within thirty days after the same is levied.

(2) The director shall have authority to cause all or any part of the potential liability of the Excess Liability Fund to be reinsured, if such reinsurance is available, on a fair and reasonable basis. The cost of such reinsurance shall be paid by the fund and the fact of the reinsurance shall be taken into account in determining the surcharge as provided in sections 44-2829 and 44-2830, but in no event shall the surcharge exceed fifty percent of the annual premium paid by a health care provider for maintenance of current financial responsibility.

(1) Any health care provider who has furnished proof of financial responsibility prior to January 1, 2025, under sections 44-2824 and 44-2827 shall be qualified under section 44-2824 for the remainder of the policy year or risk-loss trust year.

(2) The increases in coverage requirements made by Laws 2004, LB 998, in sections 44-2824 and 44-2827 shall apply to policies issued or renewed and risk-loss trust years that commence after January 1, 2005, and before January 1, 2025.

(3) The changes made to sections 44-2825, 44-2832, and 44-2833 by Laws 2004, LB 998, apply commencing with policies issued or renewed and risk-loss trust years that commence after January 1, 2005, and before January 1, 2025.

(4) The increases in coverage requirements made by Laws 2023, LB92, in sections 44-2824 and 44-2827 shall apply to policies issued or renewed and risk-loss trust years that commence on or after January 1, 2025.

(5) The changes made to sections 44-2825, 44-2832, and 44-2833 by Laws 2023, LB92, apply commencing with policies issued or renewed and risk-loss trust years that commence on or after January 1, 2025.

(1) The Director of Administrative Services shall issue a warrant drawn on the fund in the amount of each claim submitted by the director. All claims against the fund shall be made on a voucher or other appropriate request by the director after he or she has received:

(a) A certified copy of a final judgment in excess of eight hundred thousand dollars against a health care provider and in excess of the amount recoverable from all health care providers;

(b) A certified copy of a court-approved settlement in excess of eight hundred thousand dollars against a health care provider and in excess of the amount recoverable from all health care providers; or

(c) In case of claims based on primary insurance issued by the risk manager under sections 44-2837 to 44-2839, a certified copy of a final judgment or court-approved settlement requiring payment from the fund.

(2) The amount paid from the fund for excess liability when added to the payments by all health care providers may not exceed the maximum amount recoverable pursuant to subsection (1) of section 44-2825. The amount paid from the fund on account of a primary insurance policy issued by the risk manager to a health care provider under sections 44-2837 to 44-2839 may not exceed eight hundred thousand dollars for any one occurrence covered by such policy under any circumstances.

(1) If the insurer of a health care provider shall agree to settle its liability on a claim against its insured by payment of its policy limits of eight hundred thousand dollars and the claimant shall demand an amount in excess thereof for a complete and final release and if no other health care provider is involved, the procedures prescribed in this section shall be followed.

(2) A motion shall be filed by the claimant with the court in which the action is pending against the health care provider or, if no action is pending, the claimant shall file a complaint in one of the district courts of the State of Nebraska, seeking approval of an agreed settlement, if any, or demanding payment of damages from the Excess Liability Fund.

(3) A copy of such motion or complaint shall be served on the director, the health care provider, and the health care provider's insurer and shall contain sufficient information to inform the parties concerning the nature of the claim and the additional amount demanded. The health care provider and his or her insurer shall have a right to intervene and participate in the proceedings.

(4) The director, with the consent of the health care provider, may agree to a settlement with the claimant from the Excess Liability Fund. Either the director or the health care provider may file written objections to the payment of the amount demanded. The agreement or objections to the payment demanded shall be filed within twenty days after the motion or complaint is filed.

(5) After the motion or complaint, agreement, and objections, if any, have been filed, the judge shall set the matter for trial as soon as practicable. The court shall give notice of the trial to the claimant, the health care provider, and the director.

(6) At the trial, the director, the claimant, and the health care provider may introduce relevant evidence to enable the court to determine whether or not the settlement should be approved if it has been submitted on agreement without objections. If the director, the health care provider, and the claimant shall be unable to agree on the amount, if any, to be paid out of the Excess Liability Fund, the amount of claimant's damages, if any, in excess of the eight hundred thousand dollars already paid by the insurer of the health care provider shall be determined at trial.

(7) The court shall determine the amount for which the fund is liable and render a finding and judgment accordingly. In approving a settlement or determining the amount, if any, to be paid from the Excess Liability Fund in such a case, the court shall consider the liability of the health care provider as admitted and established by evidence.

(8) Any settlement approved by the court may not be appealed. Any judgment of the court fixing damages recoverable in any such contested proceeding shall be appealable pursuant to the rules governing appeals in any other civil case.

(1) In all cases against a health care provider for malpractice or professional negligence, upon motion of either party the court shall review the attorney's fees incurred by that party and allow such compensation as the court shall deem reasonable.

(2) In all cases against health care providers for malpractice or professional negligence, the court may, upon application by the prevailing party, in its discretion and in an amount determined in its discretion tax as costs payable to the prevailing party the reasonable costs of preparation and trial including reasonable attorney's fees and the reasonable loss of earnings by the prevailing party occasioned by the trial if the court finds that the losing party did not have a reasonable chance of recovery or a reasonable chance of a successful defense.

(3) A patient shall have the right to agree with his attorney to pay for the attorney's services on a mutually satisfactory per diem basis. Such election shall be exercised in written form at the time of employment or by written agreement thereafter entered into with his attorney.

Annotations

Review by the court of arrangement for attorney's fees held constitutional. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

(1) Each malpractice claim settled or adjudicated to final judgment against a health care provider under the Nebraska Hospital-Medical Liability Act shall be reported to the director by the plaintiff's attorney and by the health care provider or his or her insurer or risk manager within sixty days following final disposition of the claim. Such report to the director shall state the following:

(2) The director shall forward the name of every health care provider, except a hospital, against whom a settlement has been made or judgment has been rendered under the act to the Department of Health and Human Services for such action, if any, as it deems to be appropriate under the circumstances.

(1) As long as malpractice liability insurance remains in force under the qualification set forth in section 44-2824 and unless the patient has elected not to come under sections 44-2801 to 44-2855, the health care provider and his insurer shall be liable to a patient, or his representative, for malpractice, professional negligence, failure to provide care, breach of contract relating to providing medical care, or other claim based on failure to obtain informed consent to an operation or treatment, only to the extent and in the manner specified in sections 44-2801 to 44-2855.

(2) The filing of proof of financial responsibility with the director shall constitute, on the part of the insurer and the health care provider, a conclusive and unqualified acceptance of the provisions of sections 44-2801 to 44-2855.

(3) Failure of the patient or his representative to file his refusal to be bound by sections 44-2801 to 44-2855 shall constitute conclusive and unqualified acceptance of sections 44-2801 to 44-2855.

(4) Any provision in a policy attempting to limit or modify the liability of the insurer contrary to the provisions of sections 44-2801 to 44-2855 shall be void.

(5) Each policy issued under sections 44-2801 to 44-2855 shall be deemed to include the following provisions and any amendments thereto which may be occasioned by legislation passed by the Legislature of the State of Nebraska, as fully as if written in such policy:

(a) The insurer shall assume all obligations to pay an award imposed against its insured under the provisions of sections 44-2801 to 44-2855; and

(b) Any termination of the policy by cancellation shall not be effective as to patients claiming against the insured covered thereby unless, at least thirty days before the effective date of the cancellation, a written notice giving the date upon which termination becomes effective has been mailed to the insured at his last-known address and to the director at his office by certified or registered mail with sufficient postage attached.

(6) If an insurer shall fail or refuse to pay a final judgment, or shall fail or refuse to comply with any provisions of sections 44-2801 to 44-2855, in addition to any other legal remedy, the director may also revoke the approval of its policy form until the insurer shall pay the award or judgment or shall comply with the violated provisions of sections 44-2801 to 44-2855 and has resubmitted its policy form and received the approval of the director.

Annotations

This section held constitutional. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

(1) The purpose of sections 44-2837 to 44-2839 is to make malpractice liability insurance available to risks as defined in this section.

(2) There is hereby created the Residual Malpractice Insurance Authority. The Department of Insurance is hereby designated as the authority for the purposes of the Nebraska Hospital-Medical Liability Act. The authority shall be empowered to engage in writing medical malpractice liability insurance in this state pursuant to existing law and authorized to insure the health care provider against other liability for injury to persons or property caused by agents, employees, partners, or limited liability company members of the health care provider or by property used in or activities arising from the operations or business of the health care provider. Such insurance coverage against other liability may be provided to the health care provider by the authority only as supplemental professional liability insurance.

(3) The director may appoint a risk manager for the authority. The separate, personal, or independent assets of the risk manager shall not be liable for or subject to use or expenditure for the purpose of providing insurance by the authority.

(4) In the administration and provision for malpractice liability insurance by the authority, the risk manager shall:

(a) Be subject to all laws and regulations of this state which apply to malpractice insurance as provided in existing law;

(c) Prepare and file premium rates with the Department of Insurance which shall be based on accepted actuarial principles and accepted practices in the insurance industry;

(g) File an annual financial statement regarding its operations under the Nebraska Hospital-Medical Liability Act with the Department of Insurance on forms prescribed by the director;

(h) Obtain private reinsurance for the authority, if available, and the cost thereof shall be paid from the Excess Liability Fund;

(5) The risk manager shall receive as compensation for his or her services a percentage of all premiums received under the terms of this section which shall be computed on a fair and equitable basis as determined by the director. The compensation may be adjusted by the director from time to time.

(1) If, after diligent effort to obtain coverage, a health care provider has been declined by at least two insurers, the risk may forward his application to the risk manager together with evidence of the two declinations.

(2) If the risk manager declines to accept the risk, notice of declination, together with the reasons, shall be sent to the applicant and the director. The applicant shall have ten days from the date of notice by the risk manager to request review by the director. On appeal, the director shall review the decision of the risk manager and enter an appropriate order.

The director shall adopt and promulgate a health care professional liability insurance plan pursuant to sections 44-2837 to 44-2839 which shall contain a requirement that the Excess Liability Fund shall participate in such plan. Such plan may contain such other reasonable provisions as the director shall deem necessary or sufficient to make the plan effective. The Excess Liability Fund shall receive all premiums paid under the plan, except the portion payable to the risk manager or paid in settlement of claims, and shall assume the risks relating to policies issued under the plan. The Department of Insurance shall be reimbursed from the fund for necessary expenses incurred in the administration of the Nebraska Hospital-Medical Liability Act. The director shall certify such expenses to the State Treasurer who shall reimburse the Department of Insurance for such services.

(1) Provision is hereby made for the establishment of medical review panels to review all malpractice claims against health care providers covered by the Nebraska Hospital-Medical Liability Act in advance of filing such actions.

(2) No action against a health care provider may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to section 44-2841 and an opinion has been rendered by the panel.

(3) The proceedings for action by the medical review panel shall be initiated by the patient or his or her representative by notice in writing with copy of a proposed complaint served upon the director personally or by registered or certified mail. Such notice shall designate the claimant's choice of the physician to serve on the panel, claimant's suggestion of an attorney to serve, and the court where the action shall be filed, if necessary.

(4) The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court. If the claimant waives the panel review, the claimant shall serve a copy of the complaint upon the director personally or by registered or certified mail at the time the action is filed in court.

Annotations

The language of the Political Subdivisions Tort Claims Act at subsection (4) of section 13-919 contemplates that a claim under the act must be filed and disposed of or withdrawn prior to presentation of the proposed petition to a medical review panel, or the waiver of a medical review panel, under this section. Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001).
The requirement that a copy of the petition must be served upon the director of the Department of Insurance when medical panel review is waived is merely a notice requirement and neither confers nor denies jurisdiction of the court. The filing of an action in court is affirmative conduct which constitutes waiver of medical panel review. Brewington v. Rickard, 235 Neb. 843, 457 N.W.2d 814 (1990); Ourada v. Cochran, 234 Neb. 63, 449 N.W.2d 211 (1989).
A plaintiff's right to amend the wording of his specimen petition filed under this section in his petition later filed in the district court is the same as plaintiff's right to amend any other petition, so long as the matter submitted to the court is the same matter submitted to the medical review panel. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).
A specimen petition alleging medical malpractice is filed pursuant to this section when the parties fall under the coverage of the Nebraska Hospital-Medical Liability Act. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).

(1) The medical review panel shall consist of one attorney admitted to practice law in the State of Nebraska and three physicians who hold unlimited licenses under the laws of this state to practice medicine. The attorney shall act in an advisory capacity and as chairperson of the panel, but shall have no vote.

(a) All physicians engaged in the active practice of medicine in this state, whether in the teaching profession or otherwise, who hold a license to practice medicine shall be available for selection;

(b) Each party to the action shall have the right to select one physician and, upon selection, such physician shall be required to serve. The two physicians thus selected shall select the third physician panelist. If one of the health care providers involved is a hospital, a fourth panelist shall be selected who shall be a hospital administrator selected by the hospital;

(c) When there are multiple plaintiffs or defendants, there shall be only one physician or hospital administrator selected per side. The plaintiff, whether single or multiple, shall have the right to select one physician and the defendant, whether single or multiple, shall have the right to select one physician;

(d) A panelist so selected shall serve, except that for good cause shown he or she may be excused. To show good cause for relief from serving, the panelist shall be required to serve an affidavit upon a judge of a court having jurisdiction over the claim when filed. The affidavit shall set out the facts showing that service would constitute an unreasonable burden or undue hardship. The court may excuse the proposed panelist from serving;

(e) Within twenty days after receipt of notification of a proposed panelist by the plaintiff, the defendants shall select a proposed panelist and advise the plaintiff or his or her attorney;

(f) Within twenty days of receipt of notice of any selection, written challenge without cause may be made to the panel member. Upon challenge, a party shall select another panelist. If multiple plaintiffs or defendants are unable to agree on a physician panelist or if two such challenges are made and submitted, the judge shall submit a list consisting of three qualified panelists and each side shall strike one and the remaining member shall serve in place of the challenged panelist designated by the party; and

(g) The parties may agree on the attorney member of the board or, if no agreement can be reached, then five proposed attorney members shall be designated by the judge having jurisdiction of the cause. The parties shall then each strike two names alternately with the claimant striking first until both sides have stricken two names and the remaining name shall be the attorney member of the panel.

(3) If the members of the medical review panel have not been selected within one hundred twenty days following filing of the complaint required by section 44-2840, the court shall have authority to select members of the panel and to set a specific date for the hearing.

Annotations

When a medical malpractice action is filed under the Nebraska Hospital-Medical Liability Act, the medical review panel is selected pursuant to this section. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).

(1) The evidence to be considered by the medical review panel shall be promptly submitted by the respective parties in written form only. If any party to the proceedings fails to submit his or her evidence within a reasonable time after notice from the panel requesting such evidence, the panel may proceed to decide the matter on the evidence previously submitted. The determination of reasonable time shall be made by the panel. The evidence submitted may consist of medical charts, X-rays, laboratory test results, excerpts of treatises, depositions of witnesses including parties, and any other form of evidence allowable by the medical review panel.

(2) Depositions of parties and witnesses may be taken prior to the convening of the panel and prior to the commencement of the action, but in such event the attorney for the medical care provider shall be furnished with a copy of the complaint which the claimant proposes to file at least ten days before any deposition is taken. The patient shall have the right to request and receive all medical and hospital records relating to his or her case which would be admissible in evidence in a court of law. The chairperson of the panel shall advise the panel relative to any legal question involved in the review proceeding and shall prepare the opinion of the panel. A copy of the evidence shall be sent to each member of the panel.

(3) Either party, after submission of all evidence and upon ten days' notice to the other side, shall have the right to convene the panel at a time and place agreeable to the members of the panel. At such time either party shall have the right to present argument concerning any matters relevant to issues to be decided by the panel before the issuance of its report. The chairperson of the panel shall preside at all meetings, which meetings shall be informal.

(4) If the members of the medical review panel have not convened within six months of the initiation of the proceeding, the judge may terminate the proceeding at the request of either party.

(1) The panel shall have the right and duty to request all necessary information. The panel may consult with medical authorities and may examine reports of such health care providers as may be necessary to fully inform itself regarding the issue to be decided. Both parties shall have full access to any material submitted to the panel.

(2) The panel shall have the sole duty to express its expert opinion in writing to each of the parties as to whether or not the evidence supports the conclusion that the defendant or defendants acted or failed to act within the appropriate standards of care as charged in the complaint and as to the issue of damages proximately caused by failure to act in accordance with such standards. Any issue relating to informed consent shall be considered as a charge of failure to act within the appropriate standard of care.

(3) After reviewing all evidence and, unless waived, after argument by counsel representing either party, the panel shall, within thirty days, render one or more of the following expert opinions which shall be in writing and mailed to each of the parties:

(a) The evidence supports the conclusion that the defendant failed to comply with the appropriate standard of care as charged in the complaint in specified particulars;

(b) The evidence supports the conclusion that the defendant involved met the applicable standard of care required under the circumstances; or

(c) There is a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury in specified particulars.

(4) No dollar amounts or percentages of disability shall be provided by the panel. A majority vote of the voting members shall control action by the panel. The report of the panel shall be signed only by the chairman who shall certify that the report reflects the opinion of a majority of the voting members. If requested, a minority report shall be provided to any party.

(1) The filing of the request for review of a claim shall toll the applicable statute of limitations for a period of ninety days following the issuance of the opinion by the medical review panel. The request for review of a claim shall be deemed filed when copy of the request together with a copy of the proposed complaint is delivered or mailed by registered or certified mail to the director, who shall immediately forward a copy to each health care provider named as a defendant at his last and usual place of residence or his office.

(2) The report or any minority report of the medical review panel shall be admissible as evidence in any action subsequently brought by the claimant in a court of law, but such report shall not be conclusive and either party shall have the right to call any member of the medical review panel as a witness. If called, the witness shall be required to appear and testify.

(3) A panelist shall have absolute immunity from civil liability for all communications, findings, opinions and conclusions made in the course and scope of duties prescribed by sections 44-2801 to 44-2855.

Annotations

The word toll, as used in this section, means to interrupt, suspend, or temporarily stop the running of the statute of limitations. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).
Under this section, the running of the statute of limitations, as set out in section 44-2828, is interrupted during the medical review proceedings and recommences ninety days after the medical review panel issues its opinion. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).
Statute of limitations is tolled while a claim is before the medical review panel and for ninety days following its opinion. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).
The report, or any minority report, of the review panel is admissible evidence if suit follows. Prendergast v. Nelson, 199 Neb. 97, 256 N.W.2d 657 (1977).

Each member of the medical review panel shall be paid fifty dollars per day for all work performed as a member of the panel, exclusive of time and services involved if called as a witness to testify in court and reasonable expenses incurred. Fees of the panel, including expenses, shall be paid equally by each side. If a panel member is called as an expert witness at the trial, the panel member shall be paid the customary expert witness fee.

(1) Except for the introduction into evidence of the report of the panel, all proceedings before the medical review panel, all actions taken by any party or his counsel in preparation for such proceedings, and the submission of any matter to the medical review panel shall be handled on a confidential basis. Such hearing may not be conducted as a public hearing and the proceedings before the panel shall not be matters of public record.

(2) Initiation of proceedings before a medical review panel by a patient or his representative shall constitute waiver of any privilege or rights conferred by Chapter 27, article 5, as to any hospital records or testimony or records of any physician or surgeon who is attending or has attended such patient for physical or mental conditions or injuries or conditions involved in such proceeding to the same extent and with like effect as provided in Chapter 27, article 5. Any witness providing information or facts or opinions to the medical review panel shall be entitled to the immunities and protection provided to witnesses generally in court proceedings.

(1) Medical review panels shall be concerned only with the determination of the questions set forth in section 44-2843. Such panels shall not consider or report on disputed questions of law.

(2) To provide for uniformity of procedure, the Department of Health and Human Services may appoint a doctor of medicine from the members of the Board of Medicine and Surgery who may sit with each panel as an observer and as an adviser on procedure but without a vote.

The Director of Insurance may contract with an insurance company licensed to do business in the State of Nebraska to perform any administrative duties and responsibilities of the Department of Insurance pursuant to sections 44-2801 to 44-2855, with the Director of Insurance retaining supervisory authority over such insurance company.

The Department of Insurance shall adopt and promulgate rules and regulations regarding the administration of the Nebraska Hospital-Medical Liability Act. Such rules and regulations shall relate to issuing notices of payment due and such other matters as may be necessary to promote the efficient operation of the act in accordance with its terms.

Sections 44-2801 to 44-2855 shall be known and may be cited as the Nebraska Hospital-Medical Liability Act.