Nebraska Nursing Home Abuse Laws
Nebraska’s Damage Cap on Personal Injury Awards
The state of Nebraska caps monetary damages in medical malpractice cases at $1,750,000 against health care providers who have taken the necessary steps to qualify under the Nebraska Hospital-Medical Liability Act. (See Nebraska Revised Statutes section 44-2825.) Nebraska’s damages cap is among the most unfair and restrictive in the country. Where many states place a cap on non-economic damages, Nebraska caps both non-economic and economic damages. Non-economic damages include losses for pain and suffering, loss of enjoyment of life and other subjective harms. Economic damages include the plaintiff’s past and future medical care, lost income, and future lost earnings or harm to earning capacity.
Under Nebraska’s medical malpractice damages cap, catastrophically injured victims are the most heavily penalized and insurance companies reap huge benefits. (See, for example, the case of Collin Gouley who was born with severe brain damage due to doctor’s negligence. He was compensated a mere $1.25 million to pay for future medical expenses that were projected at 12.4 million, as well as constant pain and suffering, including every-day struggles of walking, talking and cognitive thinking, loss of quality of life and enjoyment of life, and lost future wages.)
What is the Statute of Limitations?
In Nebraska, the statute of limitations on personal injury claims is 4 years from when the injury was discovered, or reasonably should have been discovered. See Neb. Rev. Stat. §25-207. In claims for medical malpractice the statute of limitations is 2 years. If the injury is not discovered within the 2-year period, then the action must be filed within 1 year from the date the injury was or should have been discovered, whichever is earlier, but no later than 10 years after the act or omission that provides the basis for the action. (Neb. Rev. Stat. §25-222; Neb. Rev. Stat. §44-2828)
The statute of limitations for wrongful death actions is two years after the death of the person. Neb. Rev. Stat. § 30-810. In claims for wrongful death in Nebraska, a claimant should be awarded the amount of damages incurred by the persons in whose behalf the action is brought.
The Nebraska Rules of Professional Conduct provide that an attorney’s fee must be reasonable. Most cases for nursing home neglect and abuse are taken on a contingent fee basis. Under a contingent fee agreement, an attorney is a percentage of any award or settlement made on behalf of the client. In Nebraska, an attorney’s contingent fee is not limited to a certain percentage, but the court may review the fee agreement for reasonableness.
Nebraska Nursing Home Residents’ Rights
Nebraska nursing home residents are guaranteed certain rights by the federal 1987 Nursing Home Reform Law and under Nebraska state statute 12-006.05 These laws require nursing homes in Nebraska to “promote and protect the rights of each resident” while maintaining individual dignity and self-determination.
Some rights assured to residents of Nebraska nursing homes include:
- The right to be free from nursing home abuse, mistreatment neglect.
- the right to be free from physical and chemical restraints.
- The right to be treated with respect and dignity.
- The right to appropriate care with regard to a resident’s medical, physical, psychological, and social needs.
- The right to participate in resident and family group activities.
- The right to exercise self-determination.
- The right to privacy.
- The right to communicate freely with persons of their choosing.
- The right to participate be fully informed of their medical condition and informed in advance about any changes in care, treatment, or change of status in the facility.
- The right to voice grievances without discrimination or reprisal.
The rights provided above are generally available to each and every nursing home resident; however, there are several exceptions that depend on the physical and mental status of the resident, as well as whether their actions would infringe on the rights of other residents.
Regulation and Oversight of Assisted Living Facilities
Unlike nursing homes, assisted living facilities are not regulated or licensed by the federal government. In Nebraska, assisted living facilities are licensed and regulated by the Nebraska Department of Health and Human Services Division of Public Health — Licensure Unit. Nebraska assisted living facilities are not required to have a registered nurse on staff. Some facilities only provide simple housekeeping and limited assistance with personal care, such as dressing, grooming and bathing.
Disclaimer: This article is for informational purposes only. It is not legal advice and should not be used as legal advice. The legal statutes, laws and procedures contained in this article may not be current and may have been revised since the time of publication or contain errors. An attorney can provide legal guidance only after reviewing the details of your individual case.
Image via Flickr via Joe Wolf