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Mondelli v. Kendel Homes Corp.

With regard to the Mondellis' appeal, we conclude that the district court abused its discretion in excluding the testimony of Drs. Pour and King. This exclusion of evidence was prejudicial error. The district court did not abuse its discretion in refusing to allow joinder of the claims of the Mondelli family.

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Nebraska Medical Malpractice Attorney

We are not doctors. Yet, we thoroughly read and digest medical records. We are not nurses. Yet, we study and understand relevant protocol. Our medical malpractice work includes cases tried to verdict and won, and settlements involving:

  • Failure to diagnose melanoma, breast cancer, brain cancer, anal cancer.
  • Anesthesia malpractice, including failure of intraoperative attention.
  • Surgical error, including devices left behind in the body, failure to identify anatomical structures, and ineptness.
  • Dental malpractice, including failure to protect the patient against objects fallen from the dentist hands, denervation mistakes and errors with anesthesia.
  • Pharmacy errors, including patient identification mix-ups, negligent dispensation of the wrong medication, failure to verify prescriptions, and failure to consult and inform pharmacy patients.

What Is Medical Malpractice?

Medical malpractice does not mean professional care yields a bad result. Good care can produced bad results; things do not always turn out as planned. Professional persons must make difficult judgments about differential diagnoses, care options, and the benefits of a course of care to one aspect of health as contrasted with the risks or damage to another aspect.

Instead, malpractice is committed when a physician fails to conform with the standard of practice set by the average doctor in his/her specialty area and community. The patient develops complications or new injuries as a result. A physician cannot be responsible for the original medical problem unless the malpractice act is failure to diagnose what should have been diagnosed.

In Nebraska, malpractice has been explained as follows:

Proof of medical negligence (malpractice) requires two basic evidentiary steps, followed by proof relating to proximate cause and damages: (1) Evidence of generally accepted and recognized standard of care or skill of the medical community in the particular kind of care; and (2) a showing that the physician or surgeon in question negligently departed from that standard in his treatment of the plaintiff. The burden of establishing both these essential elements rests upon the plaintiff's introduction of expert medical testimony.

Burns v. Metz, 245 Neb. 428, 513 N.W.2d 505 (1994).

In order to prevail in a negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty. Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003). In Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001), we stated that in a malpractice action involving professional negligence, the burden is on the plaintiff to show: (1) the generally recognized medical standard of care, (2) a deviation from that standard by the defendant, and (3) that the deviation was the proximate cause of the plaintiff's alleged injuries. Ordinarily, in a medical malpractice case, the plaintiff must prove the physician's negligence by expert testimony. Walls v. Shreck, 265 Neb. 683, 658 N.W.2d 686 (2003).

Keys v Guthman, 267 Neb 649, 676 NW2d 354 (2004).

Professional negligence is malpractice. It can occur in medical malpractice cases can occur by:

  • Delay or failure to diagnose a condition
  • A surgical or anesthesia related mishap during an operative procedure
  • Failure to teach the patient the risks and rewards of a treatment plan and failure to get the informed consent of the patient for care
  • Failure to properly treat the disease process
  • Misuse of Prescription Drugs or a Medical Device or Implant

A Nebraska medical malpractice lawyer responsible for handling a client's malpractice case must determine as quickly and efficiently as possible whether a good, actionable case exists. . This is so because medical malpractice cases are often complex, expensive to pursue, have a high risk of no recovery. They often have emotional components for the patient and the family, too.

Analytically, these steps must occur to develop a case:

  1. The first step in the process requires the patient to hire the lawyer, and agree to a written, negotiated, fee agreement.
  2. A list of knowledgeable persons must be identified. At the same time exhibit and evidence sources are identified to the extent possible. A detailed medical history is also needed.
  3. Terms for investigation must be discussed. This should formalize the investigation to occur. The costs and scope of the investigation must be decided upon by the lawyer and client. The investigation itself can be costly so the parties must understand how they will proceed.
  4. Evidence must be gathered, including medical charts and records, x rays or other films, pathology data, standards of care applicable to the case from published sources.
  5. The case is investigated and then evaluated for viability and financial value. At this point, this is done with sketchy information.
  6. An expert witness must be identified to evaluate the case for the presence of professional negligence. This is best done by a witness who will testify if the case proceeds. This person is likely to become a witness for the plaintiff (you) and his testimony should be available for use in Court. The reviewing witness must be a medical specialist in the area of work or practice of the prospective defendant(s).
  7. If the case is to proceed, strategic decisions to focus the case on the most likely successful claim(s) must occur. "Rifle shot" direct decisions are needed. The "sue everyone" shotgun approach is costly, time-consuming, and seldom successful.

Many technical rules favor the doctor or hospital over the patient. A skilled trial lawyer (not necessarily a skilled trial lawyer) is needed to steer the case through court.

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