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Nebraska lawmaker plans to introduce bill to change malpractice cap

Published: Dec. 8, 2021 at 6:46 PM CST
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OMAHA, Neb. (WOWT) - Efforts are underway to change state law when it comes to medical malpractice.

Vivianne Marousek is a healthy soon to be six-year-old. Healthy meaning her heart and lungs are strong, but her brain isn’t.

She can’t walk or talk or feed herself.

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

The family sued Children’s Hospital in Omaha after Vivianne had been sent home. She was 11 months old at the time.

She suffered permanent brain damage from seizures. Last month, a jury awarded the family more than $26 million, most of which to cover Vivi’s future medical care.

But because Nebraska law caps medical malpractice at $4.5 million, that’s all they may get.

“Instead of Children’s paying it, taxpayers will pay it,” said Justin Wayne.

Nebraska State Senator Justin Wayne plans to introduce a bill in January that would more than double the cap to a maximum of $10 million. While that falls short of what the jury awarded Vivianne, he also believes Nebraska law should include a catastrophic exception.

“I sum up the cap as profit over people. We are making some insurance companies and the medical industry continue to make profits over people. These people need these dollars, particularly in this case with $21-million in future medical bills,” said Wayne.

Vivianne’s jury award would come from a Nebraska liability fund. Nebraska healthcare providers pay into it, it’s like an insurance policy for them.

But again, it’s capped at $4.5 million. At the end of 2020, the fund carried a balance of $95 million.

“It wasn’t speculation. The jury came back with a number. They said this is the future medical expenses. It’s a real number and the state’s gonna end up paying that,” said Wayne.

Vivi’s Attorney Pat Cullan says the medical malpractice cap takes away the constitutional right of a patient to trial by jury because if a jury orders a $26 million verdict and it’s reduced dramatically because of the cap, many wonder why have the trial at all.

Vivi’s parents’ question, where’s the justice in that?

The Nebraska Hospital Association tells 6 On Your Side it’s opposed to any changes in the cap, saying it would drive up the health care costs and increase insurance premiums.

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