McCormack
LINCOLN, Neb. (Legal Newsline) - The Nebraska Supreme Court said last week that a lower court was wrong to rule in favor of a paraplegic man who sued over his fall in a hospital's shower.
In its ruling Friday, the Court said plaintiff Bradley E. Green failed to establish "each element of his cause of action as a matter of law" and that the Box Butte County District Court erred in granting partial judgment for him.
Green, a paraplegic since 1985, was admitted to defendant Box Butte General Hospital in March 2005 with pneumonia.
During his stay, the hospital allowed Green to bring his shower chair from home and attempt to transfer himself from his wheelchair to the shower chair on his own.
After he fell and injured his left shoulder, Green sued the hospital.
The district court granted partial summary judgment in favor of Green on liability and proximate cause, and ultimately found damages of $3,733,022, which it capped at $1 million.
The hospital appealed the lower court's grant of partial summary judgment, the damages amount, and the fact that $1,377.74 in costs were not included in the capped dam ages.
Green cross-appealed the court's order of damages insofar as it employed the Political Subdivisions Tort Claims Act cap instead of the Nebraska Hospital-Medical Liability Act cap, and that the court failed to tax additional costs he requested.
The PSTCA has a $1 million cap on damages, while the NHMLA has a cap of $1,750,000.
However, hospitals under the NHMLA are responsible for only $500,000 of the recovery, and the balance is paid by the Excess Liability Fund.
Justice Michael McCormack, who authored the Court's opinion, said the issue is whether there was a "genuine issue of material fact" precluding summary judgment.
In its appeal, the hospital argues that Green failed to make a prima facie case for summary judgment because he failed to present proof that the hospital had breached the standard of care of hospitals "generally in the community where the hos pital is located or in similar communities."
The Court agreed, citing a lack of evidence.
"Hospital policies and rules do not conclusively determine the standard of care owed," McCormack wrote.
"And those policies and procedures were not, in any event, entered into evidence at the summary judgement hearing."
The Court remanded the case for a new trial, including the issues of negligence and liability.
From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.