Omaha family awarded $26M in Children’s malpractice lawsuit, but may only get $4.5M

OMAHA, Neb. (WOWT) - A Nebraska jury awarded an Omaha family the largest amount the state has seen for a malpractice lawsuit: $26 million.

The family sat down with 6 News to explain how they hope the decision makes an impact on the care of other children.

“Sometimes I forget Vivianne was a happy, healthy girl,” dad Jake Marousek said. “But this is my Vivi now. She’s a happy and healthy girl who is severely disabled.”

Vivianne, just a couple months away from her sixth birthday, needs around-the-clock care. She can’t walk or talk or feed herself.

It’s been this way since she was 11 months old.

“She suffered a severe brain injury because of further seizures,” said her mother, Andrea Marousek. “She never should have been discharged.”

The family sued Children’s Hospital and Medical Center in Omaha after Vivi had been sent home.

The seizures didn’t stop. She suffered permanent brain damage.

“One day she reportedly had a fall at daycare and we took her to the ER and the ER doctor recognized her seizures and admitted her overnight for a full workup. unfortunately, she was released the next morning without any further workup,” said Andrea.

Part of the $26 million jury award is aimed at helping provide her future care.

“We felt justice was finally served and happy the jury saw the truth in it,” Vivi’s mom said. “It’s really important that this doesn’t happen to other kids.”

Andrea Marousek is a first-grade teacher; Vivi would have likely been a first-grader this year.

“It’s hard to look past that,” Andrea said. “It’s hard seeing that she can’t do that — the things the other kids can do that are age-appropriate.”

What’s even more maddening: Knowing Vivi has a lifetime of care ahead of her. They may only receive $4.5 million instead of the $26 million the jury awarded because the state has a cap on medical malpractice verdicts.

An attorney for the hospital has asked the judge to enforce the cap, but Vivanne’s attorney, Pat Cullan, said the cap is unconstitutional, designed to insulate insurance companies and medical providers. In practice, it violates patient rights; it doesn’t protect them, Cullan said.

Children’s Hospital and Medical Center provided 6 News with a statement response on Thursday:

A hearing over the cap has been set for late January.

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