The Nebraska Injury Law Report

Keating, O’Gara, Nedved & Peter won a significant case this week establishing the liability of the City of Lincoln for failing to disclose that the plaintiffs’ homes had been constructed in a floodplain.

The lawsuit was brought byTroy and Shari Stonacek, George and Lori Bristol, Brad and Jennifer Sheaff to recover damages for the decrease in the value of their homes.

In December of 1996, the Department of Building and Safety of the City of Lincoln requested the Department of Natural Resources to provide information on baseflood elevations in the Cardwell Woods Development. In response to this request, Brian Dunnigan conducted a study and provided a map and other information relating to baseflood elevations for areas within the Cardwell Woods Development.

The City failed to disclose to the plaintiffs the existence of the study or any information relating to baseflood elevations provided by the Department of Natural Resources.

As a result of the City’s failure to advise the plaintiffs of the study or the baseflood elevation information provided by the Department of Natural Resources, the Plaintiffs’ homes were not constructed above the baseflood level as required by the minimum standards issued by the Department of Natural Resources.

Gary Nedved, attorney for the homeowners, said “My clients are very pleased by the finding of Judge Burns that the City was negligent since the City had the information to prevent construction of their homes in the floodplain and did not provide this information to my clients or their contractors.”

A trial on damages will be conducted in January, 2008.

Keating, O’Gara, Nedved & Peter has filed a lawsuit on behalf of a woman who was severely injured during an abortion at Planned Parenthood’s South Street clinic.

The suit was filed against Planned Parenthood of Nebraska and Council Bluffs and Dr. Meryl Severson and alleges that on August 17th, a 40 year old woman went to the Planned Parenthood South Street Center in Lincoln, Nebraska for an abortion.

The Lincoln Journal Star story from Saturday, September 1^st:

Woman alleges medical malpractice after abortion
By CLARENCE MABIN / Lincoln Journal Star
Saturday, Sep 01, 2007 - 12:11:39 am CDT

A 40-year-old Nebraska woman said in a lawsuit filed Friday that she had an emergency hysterectomy because of a botched abortion at the Planned Parenthood clinic in Lincoln last month.

The woman, who is not named in the lawsuit, said she lost four liters of blood — the equivalent of 80 percent of the average woman’s blood volume, according to the lawsuit — and that the procedure caused her excruciating pain.

Lincoln attorney Jefferson Downing, who filed the lawsuit in Lancaster County District Court, as well as a complaint with the Nebraska Health and Human Services Department on behalf of the woman, said his client felt violated by the treatment she received at the clinic.

“Our client has filed these complaints to bring to light the negligent actions of Planned Parenthood and Dr. (Meryl) Severson,” Downing said in a prepared statement.

He said the woman is identified as Jane Roe in the lawsuit to protect her privacy. He declined to provide any information about her outside of statements in the complaint.

Downing has taken an active role in pro-life causes. In 2001, he was among a group of attorneys representing members of a pro-life group that staged pickets outside Westminster Presbyterian Church in Lincoln because Dr. Winston Crabb, a church elder, performed abortions in Lincoln and Omaha.

The picketers, members of Omaha-based Rescue the Heartland, raised a First Amendment challenge in U.S. District Court to a city ordinance on picketing.

On Friday, Downing downplayed the relevance of his personal views on abortion in regard to the Planned Parenthood lawsuit. He said the woman contacted his law firm through the Lincoln Yellow Pages.

The lawsuit names as defendants Planned Parenthood of Nebraska and Council Bluffs and Dr. Meryl Severson of Omaha.

Chris Funk, president and chief operating officer for Planned Parenthood, said Friday she was unaware of the lawsuit and declined comment.

Severson could not be reached.

He resigned from the University of Nebraska Medical Center in March 2001 after performing an elective abortion in 2000 in violation of university policy. He joined Planned Parenthood in May 2001.

The plaintiff is claiming negligence and battery in the lawsuit, and is seeking $36,850 for past medical expenses and unspecified damages for physical pain and mental suffering, permanent injury and lost income.

Neither defendant is covered by protections under the Nebraska Hospital-Medical Liability Act, which sets limits on damage amounts, the lawsuit said.

According to the lawsuit, the woman was about eight weeks pregnant when she contacted Planned Parenthood in July and scheduled an abortion at the South Street Center.

The woman and a friend arrived at the clinic at 9 a.m. Aug. 17, and, according to the suit, the woman had an ultrasound, which indicated a tilted uterus.

After a wait of several hours, the woman was taken to an examination room and given an injection in her cervix, the lawsuit said. She then heard a suction sound, felt pressure in the uterus and “immediately complained of excruciating pain.”

When she told Severson and the attendants to stop, the suit said, the doctor replied, “We can’t stop.” Three employees then held the woman down while Severson completed the suction, according to the lawsuit.

Afterward, the woman felt sharp pain, nausea and was bleeding, the lawsuit said. While in the recovery area, her friend tried to help her to a bathroom, but she passed out, fell to the floor and suffered the first of three seizures, the lawsuit said.

Lincoln Fire and Rescue was dispatched to the clinic, and took her to BryanLGH Medical Center East.

A signed operative report from a physician at the hospital said the woman had experienced a “catastrophic perforation” of the uterus during the abortion. Downing provided a copy of the report in which the doctor’s name was blacked out.

Because of the “extensive nature of the trauma,” the report said, the physician summoned a second doctor and they performed an emergency hysterectomy on the woman. The doctors took photographs of the uterus to show the damage, according to the lawsuit.

“Had she not received emergency care when she did, it is my professional opinion that the patient could have hemorrhaged to death,” the doctor said in a signed summary provided by Downing.

The district court complaint is viewable here: complaint.pdf

If you have been injured due to medical malpractice, call Keating, O’Gara, Nedved, & Peter at 888/234-0621 or fill out the “Contact Us” form in the upper left-hand portion of this page. Your first consultation is free.

Click here for update:
 Keating, O’Gara Announces $10,000,000 Settlement in Fickle v. State of Nebraska

Doug Peterson of Keating, O’Gara, Nedved, & Peter recently received some great news for his clients Jake Wagner (pictured at left) and Gail Fickle, Jake’s mom.

On July 20th, the Nebraska Supreme Court  handed down a historic decision in Fickle v. State of Nebraska which involved a 1999 accident wherein Jake was catastrophically injured due to the negligence of the State in failing to remove or repair a traffic signal in Schuyler, Nebraska which was known to produce conflicting green lights.

In the original trial, the judge found that Jake, who has been left permanently disabled and confined to a wheelchair due to his injuries, and his mother, Gail Fickle, who brought the case on his behalf, had suffered damages in excess of four million dollars. The State had appealed arguing that it was not liable for the accident.

The Nebraska Supreme Court affirmed the finding of the trial court that the State was, in fact, liable because it had notice of the dangerous double-green malfunction. The Court also found that the damages were insufficient and must be increased in a retrial of the damages issues.

In a rare move, the Court ordered in its opinion that the future medical damages and lost income damages should be in excess of $8,500,000. In addition, the Court stated that the past and future pain and suffering damages which the trial court fixed at $500,000 were clearly inadequate and “did not bear a reasonable relationship to the injuries Wagner sustained.” The Court ordered that the case be remanded to the trial judge for a further hearing on damages.

The case represents the largest award for personal injuries ever rendered against the State of Nebraska Department of Roads and one of the biggest Nebraska verdicts for personal injuries.

If you have been injured due to the negligence of another, call the experienced personal injury attorneys of Keating, O’Gara, Nedved, & Peter at 888/234-0621 or fill out the “Contact Us” form in the upper left-hand portion of this page.

Court: Judgment was insufficient
By Leslie Reed, Omaha World Herald, July 20, 2007

LINCOLN — A Schuyler man said Friday’s Nebraska Supreme Court ruling represents justice for the “hell” he said his life has been since Valentine’s Day 1999.

That’s when a crash caused by a malfunctioning stoplight turned Jacob Wagner, then 16, from someone who loved hunting and fishing and being outdoors into a person who will require 24-hour care for the rest of his life.

In a unanimous decision, the Supreme Court said Wagner may need more than $9 million to compensate him and his mother, Gail Fickle of Schuyler, for medical bills, future lost earnings and pain and suffering.

That amount is more than twice what a lower court had ordered the Nebraska Department of Roads to pay for not fixing the light.

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