July 22, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

DAMAGES: What am I entitled to when injured due to someone’s negligence?

This is a valid question that’s often on the minds of victims dealing with personal injury.  An accident and injury can often be a life-changing event that places a person’s life in turmoil overnight. In Nebraska, the goal of damages is to put the injured person in the same position as he or she would have been had there been no injury.  While nothing can put the injured party back to exactly where they were prior to the injury, special and general damages can certainly help.

There are two types of damages available—economic and non-economic.  The amount of damages is solely up to the fact finder (Judge or Jury) and the Judge or Jury may consider the types of damages elaborated on below:

Economic Damages (or Special Damages)

  1. The reasonable value of medical (hospital, nursing, and similar) care and supplies reasonably needed by and actually provided to the victim(and reasonably certain to be needed and provided in the future);
  2. The (wages, salary, profits, reasonable value of the working time, business) the plaintiff has lost because of his/her (inability, diminished ability) to work;
  3. The reasonable value of the (earning capacity, business or employment opportunities) the plaintiff is reasonably certain to lose in the future;
  4. Reasonable Funeral costs;
  5. The reasonable value of the plaintiff’s loss of the use of his/her property;
  6. The reasonable value of the cost of repair or replacement of personal property;
  7. The reasonable cost of obtaining substitute domestic services.

Non-Economic Damages (or General Damages)

  1. The reasonable monetary value of the physical pain and mental suffering (and emotional distress) the plaintiff has experienced (and is reasonably certain to experience in the future);
  2. The reasonable monetary value of the inconvenience the plaintiff has experienced (and is reasonably certain to experience in the future);
  3. The reasonable monetary value of loss of society and companionship suffered by the plaintiff and reasonably certain to be suffered in the future;
  4. The reasonable monetary value of any injury to plaintiff’s reputation;
  5. The reasonable monetary value of any humiliation the plaintiff has experienced (and is reasonably certain to experience in the future);
  6. The plaintiff’s (husband’s, wife’s) loss of consortium. Consortium means those things to which a person is entitled by reason of the marriage relationship. Includes affection, love, companionship, comfort, assistance, moral support, and the enjoyment of (sexual, conjugal) relations.

In the determination of economic and non-economic damages, the fact finder must consider the nature and extent of the injury, including whether the injury is temporary or permanent, and whether any resulting disability is partial or total.

See Nebraska Jury instructions on damages; NJI2d Civ. 4.00; General instruction on Damages in a Tort Action – Economic and Noneconomic Damages.

Are You Making Sure Your Electronic Devices Are Secure?

  Do you know where your work laptop is?  Do you get work e-mail on your smartphone?  Are both sufficiently password protected?  What about your business associates?  Do you believe they sufficiently protect all protected health information they have in their possession?  It would probably be a good idea to take another look at your electronic device security because the theft of laptops and other devices continues to be the leading cause of information breaches.

   The Health Insurance Portability and Accountability Act requires healthcare providers to disclose to the government whenever the protected health information of at least 500 peoples has been compromised.  According to a June 11, 2014, report by the Department of Health and Human Services Office of Civil Rights for the years 2011 and 2012, the theft of devices such as laptops accounts for nearly half of those reports.  Some of the largest breaches involved business associates, including a 2011 incident in which nearly 5 million people were affected.

   To read the full report, click on the following link:  http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/breachreport2011-2012.pdf

Mississippi Case Highlights Issues of Resident Privacy

         In Mississippi, a man obtained access to the continuing care retirement community where a U.S. State Senator’s wife was being cared for due to dementia.  The man, Clayton Kelly, took an unauthorized photograph of the Senator’s wife.  He then used that photograph in a video that he used in his political blog to criticize the Senator.  Police are investigating how Kelly gained access to the facility, but Kelly’s wife claims that her husband had been given a visitor’s pass that allowed him onto the grounds and his attorney claims that the photograph was taken through an open door during regular visiting hours, and thus, Kelly did nothing wrong.  The whole situation has gained national attention because it involves a U.S. Senator in the middle of a primary campaign and the possibility that Kelly has some connection to the Senator’s main rival in that primary election.  However, there really is a lesson in all of this for nursing facilities.

         The Nursing Home Reform Act of 1987 provides basic rights for residents of nursing homes.  Residents have the right to privacy and confidentiality and they have the right to dignity, respect, and freedom.  Mr. Kelly most certainly invaded her privacy and in the context of his politically motivated video violated her right to dignity and respect.  There is no doubt in that.  But what about the facility involved in this incident?  A spokesman for the facility did state that they do have security protocols in place; they patrol the grounds, they have a checkpoint where anyone entering must check in at, and they have other security measures in place. 

         Numerous examples like this are becoming more commonplace.  Is there anything more a facility can do to protect their residents in circumstances such as these?  Given we live in an age where everyone has a cell phone and almost all of them have a camera, it can be quite daunting to consider the options.  To ensure complete privacy, a facility would have to require visitors to hand over such personal property upon entering a facility.  However, short of that, facilities can and should consider policies prohibiting possession of cameras or other recording devices, by staff and prominently warning the visiting public that unauthorized photographs or videos of residents (other than family members) is forbidden.  Staff should be instructed to kindly remind visitors of these privacy rules and to report non-compliance promptly to management.

Governor Vetoes LB 916

   On Tuesday, April 22, 2014, Governor Dave Heineman vetoed LB 916, which would have eliminated the requirements that nurse practitioners enter into integrated practice agreements with physicians.  They would still be required to work collaboratively with physicians and other care providers.  The bill would have changed provisions to credentialing and regulation of nurse practitioners as well and would have put into place a transition to practice agreement.  In order to practice the nurse practitioner would have needed this transition to practice agreement or had 2,000 hours of practice under such an agreement in order to work in the state. 

   The bill was introduced by Sen. Sue Crawford of Bellevue.  Sen. Crawford stated that studies showed that nurse practitioners “practice in a safe, effective and cost-effective manner in several states.”  In testimony given to the Legislature’s Health and Human Services Committee, nurses stated that it can be difficult for nurse practitioners to find physicians with whom they could enter into integrated practice agreements with, especially in rural areas.

   In vetoing the bill, Gov. Heineman along with Chief Medical Officer Dr. Joseph Acierno expressed concern for patient safety stating that adequate clinical experience was necessary.  Gov. Heineman stated that in the future there would be a time to move forward in giving nurse practitioners additional independence, but LB 916 went too far too quickly.  The governor stated had the bill required 4,000 hours of clinical experience he would have signed it. 

   LaDonna Hart, President of the Nebraska Nurse Practitioners, states that finding a doctor who will sign the needed agreement is becoming harder and harder for nurse practitioners.  Other nurse practitioners state that this veto could limit efforts in attracting nurse practitioners to the state.  Co-Presidents of the American Association of Nurse Practitioners, Angela Golden and Ken Miller, weighed in on the governor’s veto stating it was a “missed opportunity by the state to allow Nebraska patients to receive full and direct access to nurse practitioners while improving the efficiency of the state’s health care workforce.”  They further stated that LB 916 would have addressed the problem of primary care and mental health provider shortages seen in the state had Gov. Heineman signed the bill. 

 

Dick Knudsen Elected Cooper Foundation Honorary Trustee

Knudsen Law Firm’s own Dick Knudsen has been elected as Cooper Foundation honorary trustee. Read more about it at  Journal Star–Richard A. (Dick) Knudsen

 

 

Richard Knudsen Elected as Honorary Trustee of Cooper Foundation

Richard A  Knudsen

The Cooper Foundation announced that Richard (Dick) Knudsen has been elected to serve as honorary trustee of the board of trustees. He was selected for his long and valuable service to the Cooper Foundation. Mr. Knudsen first started serving the Cooper Foundation in 1950 when he joined the law firm of Beghtol & Rankin. Once Mr. Knudsen made partner, the law firm became Beghtol, Mason, Knudsen, & Dickeson and which would eventually become Knudsen, Berkheimer, Richardson & Endacott. Mr. Kundsen retired from practice in 1994 but still served the Cooper Foundation.

Dick Knudsen continued the law firm’s representation of the Cooper Foundation which was started by Max Beghtol in the 1920s.  It was then continued by J. Lee Rankin, John Mason, as well as Wally Richardson.  J. Lee Rankin was also elected as an honorary trustee of the board of directors in 1984.

The Cooper Foundation supports individuals through education, human services, the arts, humanities and the environment. The Foundation gives grants to non-profit organizations primarily Lincoln and Lancaster County.

QAPI, Not Penalties to Reduce Adverse Events in Skilled Nursing Facilities

   In a report released by the Health and Human Services Office of the Inspector General (OIG), more than one in five Medicare beneficiaries receiving skilled care after a hospitalization experiences an adverse event.  The study defined an adverse event as harm that resulted in a longer stay in the skilled nursing facility or transfer to a hospital, permanent harm life-sustaining intervention, or death.  These adverse events are preventable and the resulting care and hospitalizations cost Medicare an estimated $2.8 billion in 2011, the year the study was conducted.

   The OIG stated that this study confirmed the need and opportunity for skilled nursing facilities to reduce the number of adverse events to residents and recommends that CMS direct the state surveyors to review facility practices for identifying and reducing adverse events.  When asked how they intended to deal with these adverse events, the CMS stated they did not want to approach the matter using harsher penalties and that survey citations won’t be the primary way for dealing with these incidents.  Rather, they want to focus on helping nursing care providers in setting up quality improvements specifically through the use of QAPI.

   The OIG recommended that CMS work on developing lists of preventable events to help skilled nursing facility’s staff understanding, include preventable events on the QAPI systems and to encourage facilities to report adverse events to safety organizations.  The OIG also recommended that CMS tell state surveyors to include an assessment of adverse event identification and reduction in their QAPI compliance and to link related deficiencies to their resident safety practices.  CMS did say that they are working to include guidance for surveyors on how to evaluate nursing facilities efforts to identify and reduce adverse events in their QAPI requirements.

   CMS still has not stated when QAPI will formally roll out. 

Employers and Employees Can Contract When Commissions Are Earned

The Nebraska Wage Payment and Collection Act, Neb Rev. Stat. §§ 48-1228 to 48-1232, requires that if the employer-employee relationship is terminated, the employer shall pay the employee all of the earned wages on the next regularly scheduled payday following the termination, or within two weeks of termination whichever is sooner.  Earned commission is considered earned wages and must be paid as well. However, commission is not payable until the employer has received payment, but as long as the commission has been earned, the employee is entitled to it.

Determining when the commission is earned could potentially be the tricky part. The Nebraska Wage Payment and Collection Act sets forth that unless the employer and employee specifically agree otherwise then commissions are earned on all orders delivered and all orders on file with the employer at the time of the termination. This is the default standard for when commissions are earned, but the standard can be changed if the employer and employee specifically agree to use a different standard. The Nebraska Supreme Court allowed a different standard in Coffey v. Planet GroupTherefore, it is always a good idea for both employers and employees to know when the commission is earned.

Office of Public Guardian

Legislative Bill 920, which creates the Office of the Public Guardian under the jurisdiction of the Nebraska State Court Administrator, passed in the Nebraska Legislature. A need for guardians and conservators exists when there is no one suitable or available to serve the needs of an individual, and the Office of Public Guardian will provide service for individuals in such circumstances. The Office of Public Guardian establishes a director of the Office of Public Guardian, a deputy public guardian, and up to twelve associate guardians.

Wage Theft and Paystub Bill Advances for Final Reading

Nebraska Employers should be aware that the 2014 Nebraska Unicameral Business and Labor Committee has advanced LB560 for “Enrollment and Review for Engrossment.” The bill would significantly alter the Nebraska Wage Payment and Collection Act, addressing wage theft, mandating new wage itemization, and authorizing investigations with penalties.

If passed suspected wage theft could result in an investigation by the Department of Labor, complete with subpoena power for witnesses and records.  Employers would face a civil penalty of $500 for a first offense and up to $5,000 for subsequent offenses. Citations and penalties could be contested within 15 days through the administrative process.

Employers would also become obligated to provide non-exempt employees with an itemized statement listing their wages and deductions on each payday. Employers would generally not be required to provide such information for employees exempt from overtime under the Fair Labor Standards Act unless the employer had a practice or policy of paying bonuses or overtime based on hours worked.  Failure to do so would lead to an infraction under Neb. Rev. Stat.  § 29-436, meaning fines of up to one-hundred dollars for a first offence, three-hundred dollars for a second offence within a two year period, and up to five hundred dollars on a third or subsequent conviction within two years.

The significance of the Enrollment and Review of this bill stems from the fact that the bill is prepared for final reading after having been advanced from Select File. The bill was a carryover from 2013, and this year several amendments have been adopted or rejected, and it is generally considered ready for final preparation and a vote. Employers should therefore pay close attention as this bill appears on track to becoming law.

Client Testimonial:

I don’t know how to thank you for your quick, clear and valued reply. I was worried that it was unreasonable of me to put all of this on your lap during the eleventh hour of the Agreement’s discussions – THANK YOU! Your reply was well-structured and succinct but also simple enough that even us lay-folks can see the legal linings. I’m struggling to find the right words to completely convey my satisfaction. You have my profound “appreciation” Laura!”

Jon, a Knudsen client