It’s a beautiful Nebraska day when our legislators work to pass a bill that protects Nebraska children. It was a beautiful Nebraska day when LB 25 passed on final reading with bipartisan support to correct the horrific Nebraska Supreme Court decision, Moser v. State of Nebraska. But, the storms were rolling in quick this past spring. And they were violent.
In 2020, the Nebraska Supreme Court issued Moser v. State of Nebraska, overruling longstanding and established Nebraska law. The Court held that our State government and political subdivisions, including public schools, were immune from any claim arising out of assault or battery. The Court reasoned the plain language of the State Tort Claims Act and the Political Subdivision Tort Claims Act required such an interpretation and invited our Legislature to remedy the situation. In the nearly four years since Moser, one need only read the headlines from the last four months to witness the freedom from accountability that government entities have enjoyed when children are molested by those we entrust with their care.
• A middle school teacher with the Madison Public School in Madison, Nebraska has been accused of inappropriate contact with a high school student – May 21, 2024
• A substitute teacher at Omaha Public Schools, was arrested over the weekend on one count of first-degree sexual abuse by a school employee after she admitted to having sex with the teen boy – April 16, 2024
• July trial set for former North Platte teacher accused of sexual assault of student – April 2, 2024
• Former Norris High School teacher gets 90 days in jail for sexually abusing student – March 29, 2024
On April 18, 2024, the last day of this year’s legislative session, LB 25 was passed on final reading. The specific aim of LB 25 was to allow child abuse and sexual assault survivors to hold government officials accountable when those officials fail to protect children in their care. The bill passed with bipartisan support and was presented to Governor Pillen that same day. Our legislators came together to answer the Supreme Court’s invitation to make Nebraska children safer when in the care of government officials. I would like to thank the following Senators for their support of LB 25: Carol Blood, Elliot Bostar, Jim Brewer, John Cavanaugh, Michala Cavanaugh, Danielle Conrad, Jen Day, Wendy DeBoer, Myron Dorn, Robert Dover, George Dungan, Steve Erdman, John Fredrickson, Steve Halloran, Ben Hansen, Megan Hunt, Lou Ann Linehan, Mike McDonnell, Terrell McKinney, Dave Murman, Jane Raybould, Rita Sanders, Julie Slama, Tony Vargas, R. Brad von Gillern, Lynne Walz, Justin Wayne, and Anna Wishart.
On April 25, 2024, LB 25 was returned by Governor Pillen without approval. The timing of the Governor’s veto did not afford legislators an opportunity for an override vote. Nebraska public schools and government officials continue to enjoy immunity from accountability when they turn a blind eye to children in their care being sexually abused.
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PRESIDENT
Jonathan Urbom, Lincoln
PRESIDENT ELECT
Mark Richardson, Lincoln
SECRETARY
Jennifer Turco Meyer, Omaha
TREASURER
Elizabeth Govaerts, Lincoln
IMMEDIATE PAST PRESIDENT
Todd Bennett, Lincoln
DIRECTORS
Jason G. Ausman, Omaha
James C. Bocott, North Platte
Aaron Brown, Omaha
Eric Brown, Lincoln
Nathan Bruner, Kearney
John F. Carroll, Omaha
Gregory Coffey, Lincoln
Patrick Cooper, Omaha
Michael F. Coyle, Omaha
Tara DeCamp, Omaha
Joseph Dowding, Lincoln
Michelle Epstein, Omaha
Nancy Freburg, Kearney
Daniel Friedman, Lincoln
Mandy Gruhlkey, Omaha
Cameron Guenzel, Lincoln
Matthew Knowles, Omaha
Matt Lathrop, Omaha
Steven M. Lathrop, Omaha
Mandy L. Larson, Papillion
Danny Leavitt, Omaha
Kyle Long, Scottsbluff
Clarence Mock, Oakland
Robert R. Moodie, Lincoln
George H. Moyer, Jr. Madison
Kathleen M. Neary, Lincoln
Brody Ockander, Lincoln
Robert G. Pahlke, Scottsbluff
James Paloucek, North Platte
Ross Pesek, Omaha
Vincent M. Powers, Lincoln
Jeffrey Putnam, Omaha
Jon Rehm, Lincoln
Julie Shipman-Burns, Lincoln
Andrew D. Sibbernsen, Omaha
Terry Sibbernsen, Omaha
Mitchell Stehlik, Grand Island
Adam Tabor, Omaha
Julie Tabor, Omaha
Jacqueline Tessendorf, Columbus
Dan Thayer, Grand Island
Peter C. Wegman, Lincoln
Christopher P. Welsh, Omaha
Brock Wurl, North Platte
Executive Director
Deborah Neary
On the heels of Governor Pillen’s veto of LB 25 came another gut-punch decision from the Nebraska Supreme Court. On May 3, 2024, the Supreme Court issued Joshua M. v. State. In Joshua M, three siblings, two girls and one boy, ranging in age from 1 year to 4 years, became wards of DHHS after their mother was tragically injured and severely disabled from a car crash and their father was deemed an unfit parent. The three siblings were placed in a foster home where they were all frequently physically and sexually abused by a foster parent. One of the girls testified that her earliest memory was being sexually assaulted by her foster parent. Ultimately, one of the foster parents was charged with multiple counts of sexual assault of a child and was convicted pursuant to a plea agreement. After the arrest of one of the foster parents, the three siblings remained in the other foster parent’s custody for several more months until reports of further physical abuse by the foster parent that was not incarcerated. In a tort claim action against DHHS, the siblings alleged that DHHS was negligent in recommending and supervising their placement and in failing to remove them from such a placement when DHHS knew or should have known they were being physically and sexually abused. The Supreme Court doubled down on their holding in Moser and granted the State immunity from the siblings’ claims.
This is not right. This cannot be the law of the land in “the good life” state. NATA will fully support a complete remedy to this injustice in the next legislative session, expanding LB 25 to cover conduct of all Nebraska state and local government negligence, and not just limited to political subdivisions. I would encourage all of our members and anyone reading this to contact your State Senator and ensure they know where Nebraska citizens stand on this issue. I would also encourage you to start donating or increase your donation to the NATA PAC to support candidates that are committed to remedying this injustice in Nebraska law.
The Prairie Barrister is published quarterly by the Nebraska Association of Trial Attorneys. Inquiries regarding submission of articles and advertising should be directed to Deborah Neary, Executive Director.
More and more healthcare plans are, what are referred to as, ERISA plans. These plans are governed by federal law. Occasionally, it is time consuming or even difficult to get information or the plan documents from the ERISA plan which is necessary in order to determine the amount of the lien and whether the healthcare charges, upon which the lien is based, were necessitated by the automobile collision or occurrence which gives rise to your client’s claim.
29 U.S. Code § 1132 Civil Enforcement allows a participant to bring a civil action for the administrator’s “refusal to supply requested information.” The statute, 29 U.S.C. § 1132(c), states that an administrator “who fails or refuses to comply with a request for any information which such administrator is required by this subchapter to furnish to a participant or beneficiary (unless such failure or refusal results from matters reasonably beyond the control of the administrator) by mailing the material requested to the last known address of the requesting participant or beneficiary within 30 days after such request may in the court’s discretion be personally liable to such participant or beneficiary in the amount of up to $100 a day from the date of such failure or refusal, and the court may in its discretion order such other relief as it deems proper.”
I would suggest that if you are having difficulty getting the information you seek from the Plan’s administrator, a certified letter referencing the above statute will resolve the problem. If
by Vince Powers
you actually had to go to court, the statute also allows the court to award a reasonable attorney fee and costs of the action to either party.
My understanding of the case law is that only the plan administrator may be subject to the penalty. Thus, the agency that has been hired by the ERISA plan may contact you, is not subject to the penalty. You must send your letter to the plan administrator. It is usually a good practice to get a copy of at least the summary description of the plan and the subrogation language contained in the plan.
29 U.S.C. § 1021(a) requires that the summary plan description be furnished to each participant and to each beneficiary.
(a) Summary plan description and information to be furnished to participants and beneficiaries.
The administrator of each employee benefit plan shall cause to be furnished in accordance with section 1024(b) of this title to each participant covered under the plan and to each beneficiary who is receiving benefits under the plan—
(1) a summary plan description described in section 1022(a)(1) [1] of this title; and
(2) the information described in subsection (f) and sections 1024(b)(3) and 1025(a) and (c) of this title.
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THE PRAIRIE BARRISTER
In the bustling office of the Prairie Barrister, the atmosphere buzzed with the energy of zealous advocacy. The Barrister and an associate attorney were deep in conversation, papers strewn across the desk. The associate attorney abruptly changed topics and brought up a recent development in a clear liability case with significant damages, their frustration evident.
“Did you see the insurer on this case rejected our policy limits settlement opportunity? It was only $100,000, and it seemed like a no brainer to me.”
The Prairie Barrister smiled and said, “Yes, I did see that. I agree the damages in the case are well beyond the policy limit, and the insurer should have paid.”
The associate responded, “How could the insurance company fail to pay the $100,000 policy on this case? Are they blind? With the right trial lawyer, this case is worth a million, maybe even multiple millions.”
The Prairie Barrister nodded thoughtfully. “And the insurance company just did our client a huge favor. If you can get over your frustration, you’ll see a huge opportunity staring you in the face.”
The associate attorney was surprised and a bit confused, “How is this a huge opportunity? It seems to me like a deadend where there is more work, more case costs but still only $100,000 available to my client at the end of the day.”
The Prairie Barrister gave a knowing smile, “How do you think third-party insurance bad faith law would affect your analysis?”
“I’ve heard about it, but I don’t know anyone around here who uses that to recover beyond the policy limits. Doesn’t that only happen in other states?”
“No,” the Prairie Barrister assured. “It happens all over the country, and national insurance companies know it. It also happens right here in Nebraska, even though the insurance lawyers will swear it doesn’t and never admit it - until they deliver a check paying an excess verdict or settlement.”
The Prairie Barrister paused a moment and said, “If I’m being brutally honest, you should know I’ve collected more than a million dollars in excess settlements and verdicts from insurance companies – just in two recent cases that come to mind immediately.”
“Hold on,” the associate attorney said, “That is serious money. How can you be so sure third-party insurance bad faith applies to a single rejection of a policy limit settlement opportunity?”
The Barrister responded, “Well, for one, money in the bank is the best proof. So, I have the confidence born of experience.”
The Prairie Barrister continued, “But, you can also go check the jury instructions from third party insurance bad faith cases in Nebraska. The jury instructions say that when an insurance company makes an unwarranted rejection of a settlement
by Ross Pesek
opportunity within the policy limits and then, after that opportunity has passed, a verdict for more than the insurance limit results, the insurance company has to pay the entire verdict – regardless of the limit in the insurance contract.”
The associate added, “I suppose that makes sense. If the insurance company rejects an offer and decides to take their chances at trial, they are the ones who should pay if there is an excess verdict.”
The Prairie Barrister nodded, “Exactly. It wouldn’t be fair at all if the insurance company made the choice, but their insured, a regular human being with no control over anything, had to pay the excess verdict.”
“Also, that is why I never call my settlement opportunity letters ‘demand’ letters,” The Prairie Barrister continued. “The jury instructions for third-party bad faith discuss settlement opportunities, so that is the phrase I use on my settlement opportunity letters.”
The associate attorney’s face lit up, “So, does that mean that when the insurance company rejected the opportunity to pay their insurance limits in this case, they became liable for whatever verdict will result?”
The Prairie Barrister nodded again, “Yes. I call these situations unlimited recovery opportunities and they are very valuable opportunities for your clients and for yourself.”
The associate replied, “So, what do I do next?”
“Don’t make a counteroffer below limits. Your next move is to file suit and send a new settlement opportunity – for more than the policy limit – and prepare for trial.”
The associate seemed skeptical, “But, I know insurance companies. They won’t just roll over.”
The Prairie Barrister responded, “You are right about that. Actually, you will know you’ve got them when they try to fix their mistake and offer you the limits they should have paid when they had the chance. That is your first sign you are on the right path – but definitely reject late offers to pay the limits.”
The Prairie Barrister continued, “You have to insist on full value and consistently express that unlimited recovery opportunities at trial cannot be sold cheap,” the Prairie Barrister explained. “If you file your lawsuit and send a new settlement opportunity above the policy limit, the insurance company will be forced to deal with the reality that an excess verdict is possible and even likely.”
The associate attorney asked, “What do the insurance lawyers say when you do this?”
The Prairie Barrister smiled, “Well, they are all different. Many go silent. Others go straight to denial. Sometimes they are shocked. Anger and bargaining usually show up at some point. But, just like the stages of grief, they eventually arrive at acceptance.”
The associate attorney laughed a little, but then turned serious, self-doubt washed over their face, “But, I have to confess, I’ve never won a significant verdict. I don’t think they will take me seriously when I tell them I’m going to pursue an excess verdict at trial.”
“We will do that together,” the Prairie Barrister said confidently. “Even if you were a solo lawyer or a general practitioner, all you must do is recognize the opportunity and resolve to seize it. If you truly feel you cannot litigate and try the case then make a good trial team by getting a strong firstchair trial counsel involved. Actually, making a team for a case with an unlimited recovery opportunity makes sense when the money is large enough.”
The associate attorney still looked doubtful. “This knowledge is powerful, but it’s not well-known, even among plaintiff lawyers. It makes me feel hesitant because it will require me to make a lot of changes to how I handle my cases, and I’m not sure it is worth all the changes necessary to take advantage of it.”
“That is true. It required me to make a lot of changes, it even took years to see the first case come to a successful conclusion” the Prairie Barrister replied. “But, even so, it can transform a lawyer’s practice and their clients’ lives because the results achieved are so much better. From my point of view, it is clearly worth the effort.”
The Prairie Barrister added quickly, “A side benefit is that insurance companies start to recognize you are serious when you say they have one opportunity to settle. I’ve noticed I get paid the policy limits on the deadline imposed in my letters much more often than before we implemented this strategy.”
The associate attorney’s eyes lit up again, “So, it can also make the insurance companies more likely to settle within the policy limits?”
“Absolutely,” the Prairie Barrister said. “But that can be both a blessing and a curse. When insurers pay the limits on
FOR FURTHER READING:
Rowley, Nick, and Rowley, Courtney. Running with the Bulls: How to Win Top Dollar Settlements. Trial Guides, 2018.
Ross Pesek & Alejandra Ayotitla Cortez, Revisiting the Tri-Partite Relationship Between an Insurance Carrier, a Policyholder, and an Insurance Defense Attorney. Nebraska Online Law Review: The Bulletin, Nov. 11, 2021.
Bamford, Inc. v. Regent Ins. Co., 822 F.3d 403 (8th Cir. 2016).
the first opportunity, you often have to take it because there is no other way to ensure an excess verdict could actually be collected. If you are following along, you can see that a limited recovery opportunity is not as good as an unlimited recovery opportunity.”
“Believe it or not, nowadays we receive policy limit offers with a touch of sadness because it is actually limiting what we can do for our clients,” said the Prairie Barrister.
The associate attorney nodded, a sense of excitement and invigoration coming over them, “Now I am seeing the opportunity you said was staring me in the face: when they rejected the opportunity to pay the policy limits on our case, they gave me an unlimited recovery opportunity. That is a huge opportunity. Thank you for helping me see it.”
“You’re welcome,” the Prairie Barrister replied warmly. “I didn’t learn this information until I had practiced for a decade. Speaking for myself, the guilt of not having known this and having missed opportunities to help seriously injured people caused me to be defensive at first. But, I simply had to acknowledge the truth of the matter and look forward to all the people who will benefit from me putting these ideas into action. At least, that’s what I tell myself.”
The associate attorney, feeling invigorated, nodded in agreement. With a renewed sense of purpose, they left the office, ready to implement the powerful strategy they had just learned.
The Prairie Barrister, watching the sun set out their window, felt a deep sense of satisfaction. While they had learned this information after years of struggle and toil, they were gratified to share it with as many colleagues as possible so negligence victims could avoid limited recoveries and receive full and complete justice by pursuing unlimited recovery opportunities at trial. In the end, the Prairie Barrister knew that spreading this knowledge would lead to more justice for more people and that was their highest priority.
NATA YOUNG LAWYERS
by Sam D. Colwell
The Value of a Mentor
One of my favorite films is Whiplash. The film tells the story of Andrew, a young, aspiring jazz drummer who hopes to be the next Buddy Rich—one of the most influential drummers of all time (or so Wikipedia tells me). As a student at an elite music school, Andrew is taken under the wing of Dr. Fletcher, an intense and demanding teacher, who casually hurls a chair at Andrew’s head when Andrew fails to keep tempo and consistently berates Andrew under the guise of “tough love.” Over time, Andrew loses his sense of self, as well as his passion for drumming, under Fletcher’s demanding and grating mentorship. Andrew eventually rediscovers his joy and internal drive for excellence in spite of Fletcher’s leadership, or lack thereof. Suffice it to say, Fletcher is not the model mentor.
I’ve found that most young people interested in the law resemble Andrew—high-achieving, driven, and ambitious. You take the LSAT with the goal of getting into top law schools or receiving the best scholarships. Once you enter law school, there is an internal pressure to try your hardest and earn good grades or clerkships. After graduation and entering the practice of law, the first few years of practice are spent trying to prove you belong and not make a fool of yourself. You want to be just like your attorney role models as you mature into practice. In my experience, most law students or young lawyers who retain their
ambition and passion in the early stages of their career have a good mentor. Whether it is a law school professor, partner, or other experienced attorney, having a supportive, encouraging, and thoughtful mentor is irreplaceable.
Obviously, the mentor-mentee relationship between Fletcher and Andrew is extreme and highly problematic. Thankfully, I have yet to hear from my young lawyer brethren of a putative mentor throwing the Nebraska Rules of Evidence at an associate when they cannot recall a certain hearsay exception. While Fletcher provides us plenty of examples of what not to do when mentoring bright and motivated individuals, I want to spend this column focusing on the value of a mentor to a young lawyer.
It has been four years since I left the COVID-induced hibernation that was the final two months of my first year of law school and began my first summer clerkship. Going into my summer clerkship as a firstgeneration law student, I knew nothing about the practice of law. I had no idea how a law firm operates or what makes a good attorney, not to mention the minutiae of the day-to-day life as an attorney. The only thing that I knew was that I needed a mentor to help me navigate what I had gotten myself into.
career is young, explore different practice areas, take on responsibility, and push yourself. Most young lawyers are afflicted with a healthy dose of failure fright. As a young lawyer, one of the most important things you can do is take initiative Search for ways to contribute that go above and beyond the bare minimum. Find an attorney that aligns with your interests and values. Ask them to lunch—odds are they will take you up on that offer (and even buy). When a supportive environment centered around growth combines with an ambitious, yet humble, young attorney, the opportunities for development flourish.
An attorney mentor should provide valuable work to clerks where they can learn and contribute meaningfully, telling clerks not just the “what” of a project, but also the “how” and “why.”
Law clerks began at our firm a few weeks ago. When I asked the clerks to share one word that they hope will sum up their clerk experience, their responses included words like “illuminating,” “rewarding,” and “fruitful.” Consistent with my experience, the clerks yearn for experience—in the courtroom, in mediations, drafting pleadings, etc. An attorney mentor should provide valuable work to clerks where they can learn and contribute meaningfully, telling clerks not just the “what” of a project, but also the “how” and “why.”
Like me, the clerks also began with some nerves. For me, and for our clerks, attorneys taking affirmative steps to get to know me on a personal level outside the context of a project made me feel more comfortable and helped build a stronger mentor-mentee relationship. Additionally, cultivating a work environment amongst clerks or young lawyers that breeds collaboration, not competitiveness, can help build trust and a feeling of support. As an attorney, taking initiative to adopt an open-door policy, where no questions are bad questions, can provide clerks and young lawyers alike a welcoming environment where the focus is on growth, and not immediate perfection or mastery.
Still, a young lawyer or clerk should know that they have agency in building a relationship with a mentor. While your
A mentor is someone who meets you where you are and helps you cultivate your own sense of self. While a young attorney may certainly want to mold themselves after their mentor, a mentor is not looking to create a clone of themselves; rather, they are able to identify, embrace, and grow the unique characteristics of a young attorney. Sure, a mentor can answer your questions, review your pleadings or argument outline, or answer strategy questions. But the most important role for a mentor is facilitating the development of a young lawyer’s identity.
Whiplash teaches us that intense and unforgiving mentorship quickly causes burnout and a loss of passion. Over time, creating a culture of competitiveness over collaboration yields discontent and a lack of trust. When mentorship is treated as a one-size-fitsall cloning experiment wherein a mentor does not adapt to, or develop, the unique qualities of the mentee, the mentee struggles to come into their own. In a profession that can be overwhelming, all-consuming, and anxiety-inducing, it helps when there is someone in your corner. The practice of law is better when young and experienced attorneys are intentional about developing mentorships.
A young attorney can also seek out mentorship opportunities. Get involved in the community. Mentor a law student. Take the clerk(s) out to lunch and get to know them. When you enter a mentorship role as a young attorney, you will learn a lot about yourself and take further steps to create your own identity as an attorney.
If you are a young lawyer without a mentor, or no one in your firm fits quite what you are looking for, reach out to someone on NATA’s Executive Committee for some names of attorneys in the state who are willing to invest in your development. NATA is a welcoming community that truly believes a rising tide lifts all boats.
Spine Injuries: Setting Yourself Up For Success
by Tom
Injuries to the spine are the most common bodily injury that we confront as plaintiff lawyers and while many of us have a process for litigating and trying them, there are always alternative approaches that may better serve our clients as the medical and legal landscape evolve.
THE “PERFECT” SPINE INJURY WORKUP
I suppose in some perfect world, our clients must complain of pain at the scene of an incident, report their symptoms to a doctor immediately and consistently undergo conservative care for three months. Further, if that fails, they must follow up with a spine doctor for a referral to pain management for injections, and then if that fails, undergo surgery without delay, assuming their clinical symptoms and imaging studies 100% perfectly corelate. Where does this expedited cookie cutter scenario come from? You guessed it. Insurance adjusters and defense firms.
In the medical legal world, we have been conditioned, to document injuries based on what insurance companies, adjusters, and defense lawyers demand. We have all heard the following from them, “your client never complained of pain at the scene, never went to the emergency room, did not seek treatment until a weak after the collision; and, if they were really hurt, they would have.” In the same breadth, if your client seeks the aid of an attorney and goes to physical therapy or the chiropractor a day or two after the collision, the insurance companies, adjusters, and defense lawyers, then say “your client went to an attorney first, the attorney orchestrated this treatment, this is all attorney-driven treatment.” Ostensibly, the insinuation either way, is that you and your client are liars. Throughout the entire process from pre-litigation to trial, the defense’s underlying
theme will always be an insinuation of dishonesty on the part of you and your client. This is true regardless of the case and person involved because it is an inevitable byproduct of denying or defending claim.
EDUCATING OUR CLIENTS
In light of the above, how can we better support our clients from the outset? To start, we can better educate our clients on the importance of vocalizing all their symptoms and complaints. We can work with our staff to train them to ask the right questions and follow up repeatedly with our clients. We want our clients to be comfortable articulating what they are feeling and how it is affecting their day-to-day activities. Most people don’t talk about pain and therefore may not have the words to express how it’s affecting them, and many people also tend to internalize their pain rather than express it to others for fear of burdening them.
For the people we help that have been traumatically injured, this is likely the first time it is in the context of fighting a claim, litigating, or being in trial. Why is that important? Think about the first time you hurt yourself. Maybe you skinned your knee or bumped your head. Your mom or dad likely comforted you and accepted that you hurt yourself. They didn’t say, “little Bobby, you’re just lying about that bump on your head so you can get extra ice cream after dinner.” Or think about a time you may
Feher for “The Gavel”
have had a health issue or injury later in life. Your friends, family, and doctors likely offered comfort and care as well treatment recommendations. Imagine if they said, “you are not hurt, you are not sick, you are just trying to avoid going to work, taking care of the kids, and your handling responsibilities at home… malingerer!” It seems absurd, right? Why is it then once an insurance company enters the equation this becomes the norm?
Given that this process is entirely new to our clients, we have to be readily familiar with the types of symptoms someone may have as a result of a spine injury and let our clients know. Most people do not know that numbness, tingling, or weakness in their fingertips may be the result of an irritated nerve root in their cervical spine from a damaged disc. Pain that radiates from the neck into the shoulders could also be from a sprain or strain or an injury to the facet. Pain in the buttocks versus pain that shoots all the way down the leg is also consistent with nerve root irritation or impingement. We must explore all symptoms beyond just pain and discuss all the potential upper and lower extremity radicular symptoms with our clients at the outset as well as throughout their medical and legal workup. This will help us better understand what type of spinal injury they have and what type of medical treatment can reasonably help alleviate their symptoms. Your legal team should be communicating with health care providers so that you fully understand the diagnosis, prognosis, and treatment plan.
MORE THAN A MEDICAL BILL
The value of our clients’ cases are more than a medical bill and we should avoid falling into the trap of practicing where racking up large medical bills that reach or exceed a defendant’s policy limits is the only way to resolve a case. This trap is a conditioned response from dealing with insurance companies daily. We have all been there when an adjuster says a case is worth pennies because our client doesn’t have a lot of medical specials. Again, speaking out the other side of their mouth, when our clients are forced to treat with a lien because they don’t have access to good medical care, the insurance companies then argue the bills are too high.
Putting the medical bills aside, the greatest value comes from our clients’ stories. Make it a point at the outset to understand a client’s story. Get to know the person you are serving on a personal level, connect with them, and humanize the process.
Insurance companies are great at evaluating risk when it comes to economic damages alone, however, they have no real metric or algorithm for evaluating the risk of a great human story and a real human connection.
WHAT’S THE VALUE OF OUR SPINE INJURY CASE?
We can only begin to understand the value of our cases once we get to know our clients and find out what their life was like before and after their trauma. What did they value? What did they enjoy? What were their responsibilities? Who were the people in their life they cared about?
I am sure most if not all of us have slept wrong and woke up with crick in our neck or moved some furniture and tweaked our back. The day after we feel terrible, and we cannot wait for the pain to go away. We take some pain killers so we can make it to work, but we are constantly adjusting in our seats. If we have kids, the pain plays on our already tested patience, we may snap at our screaming child in the backseat and then feel a wave of guilt. Making dinner that night after a long day at work now feels like a monumental task, and after less than 24 hours we are desperately hoping that when we fall asleep and wake up the next morning, our pain will be gone.
Now imagine the next morning it doesn’t go away, and you start thinking you may need to go to the doctor if this pain persists even more. You wonder if something is wrong. You have hope that it should resolve. For something that an adjuster calls “soft tissue” injuries, sprains and strains, whiplash, these symptoms can persist for months. That is a huge interruption in one’s already busy life.
Focusing on our client’s story makes all the difference in how we approach our advocacy. It forces us to connect with our clients and to see the true value of their life and appreciate how much has been taken from them as result of an unexpected trauma.
We all know the Golden Rule and how we are not supposed to tell jurors to place themselves in our client’s shoes, however, we should be putting ourselves in our client’s shoes and seeing the world from their perspective. In other words, we should be empathizing with them. Consider, what does it mean for a single mother with three children living off minimum wage to suffer an injury and then have to make physical therapy appointment twice a week, or what does it mean for a young entrepreneur who is working 100 plus hours a week on their startup or someone who just retired from decades of dedicated labor in the workforce to now have their long awaited golden years ruined.
When we begin to empathize and learn our clients’ stories, something else happens inside of us, we begin to connect and we begin to care for these people and that is where it begins.
PAIN GENERATORS IN THE SPINE
When the spine experiences trauma, there are all types of structures that can serve as pain generators from muscles, ligaments, discs, nerves, and joints. Someone can have a muscle strain as well as a disc or nerve injury – they are not mutually exclusive, however, the more serious injuries are often not revealed until time passes. Also, be on the lookout for overlapping injuries to multiple body parts. For example, someone with shoulder and neck pain may have pathology in their shoulder and cervical spine based on imaging that is consistent with causing their symptoms, but only one of those anatomical abnormalities is truly causing their symptoms.
SPINAL IMAGING
While it is true that people who suffer acute disc injuries in their spine may not show signs of trauma like edema or a fracture, it is still important to have imaging done shortly after
the incident. We have all seen cases where someone is involved in a car crash and then they are involved in a subsequent crash. Early imaging can help prove causation in and it can also serve to guide the treating doctors.
Let’s assume your client has terrible back or neck pain following a crash, however, their MRI is negative. In other words, there are no disc herniations or stenosis. That doesn’t mean they don’t have a permanent debilitating injury. There is always the possibility that the MRI did not pick up the structural damage to the disc or nerve irritation. A more likely reason may be damage to the facet joints which can be incredibly painful. Damage to the facet joint can be identified by a pain management doctor through diagnostic medial branch blocks. If the patient obtains relief, then they may very likely be a candidate for radiofrequency ablations also known as rhizotomies. This procedure cauterizes the nerves in the facets. For many patients, those nerves grow back and require ongoing intervention.
DEGENERATION AND JURY INSTRUCTIONS
Most doctors will agree that our spines begin to show some signs of wear and tear by the time we enter adulthood. The amount of wear and tear just like with anything will depend on that person’s body and their life experiences. However, most people with wear and tear in their spines do not have persistent debilitating symptoms that warrant treatment.
CACI 430, 431, 3927, and 3928 provide great guidance in dealing with preexisting wear and tear of prior injuries. In particular, CACI 431 states that a defendant cannot avoid responsibility just because some other condition was also a substantial factor in causing plaintiff’s harm. The defense used in virtually all spine cases regardless of the plaintiff’s age is that they had degeneration in their spine and there is no acute findings on the imaging. This instruction is powerful because you can get the defense expert to agree that most if not everyone has some degree of degeneration and its asymptomatic. Aside from degeneration, people may have a herniation or spine surgery prior to the subject incident. That would leave them more vulnerable or susceptible to injury or becoming symptomatic. Most defense experts will also agree on that point as well and you should always ask this question in deposition.
DO NOT PROVE MORE THAN YOU NEED TO AT TRIAL
We can agree virtually everyone has had some neck or back pain. Just sitting for too long in front of the computer, we can feel it. If you have a client who says, I have never had neck or back pain and they have been doing construction all their life, no one is going to believe that, even if their medical records do show priors injuries. Rather than saying your client has never had neck or back pain, the better response would be, I never suffered an injury to my neck or back that required treatment, assuming that is true, of course.
Most people with spine injuries still live their lives. They workout, carry groceries, shop, travel, work, pick up their kids
from school, clean their house, etc. That is life. Just because someone suffers an injury doesn’t mean the world will wait for them. People have responsibilities they need to complete even if it causes them pain. So, when our clients are asked what they cannot do because of their spine injury, it is not about what they can or cannot do, but what they must do and what they can avoid doing.
HEAVY ON THE EXPERTS
There are at least two schools of thought in the field of experts, and some like to pour it on thick where others like to simplify it as much as possible. The defense generally wants to designate a half dozen experts which include an accident reconstruction, biomechanic, orthopedic surgeon or neurosurgeon, radiologist, and billing expert. You will find that this is the case regardless of whether the case is surgical or not, or whether the defendant has a hundred thousand policy or million-dollar policy. A few ways of leveling the playing field is to have a non-retained radiologist testify during the discovery period as to their findings, confirming the pathology they see on the images and testifying that these findings must be clinically correlated by a spine surgeon to determine treatment protocol. As to the accident reconstruction and biomechanic experts, there are many experts who do both, so you don’t have to retain two separate experts. For billing experts, I strongly suggest that you consider stipulating to an amount of the past medical expenses or potentially waiving them if your client is agreeable and you believe it’s in the best interest of your case. Keep in mind that you can have retained and non-retained orthopedic surgeons or neurosurgeons provide testimony as to the reasonable and customary value of past and future medical treatment.
KEEP IT SIMPLE AND FOCUS ON THE STORY
At the end of the day when you get to trial, you will have so much information to distill. You and your client will have lived with the case for years and there may be a part of you that wants to cover it all with the jury. Do not get sucked into that trap. Streamline it as much as possible. It won’t be the details or medicine that necessarily win the day but whether jurors connected with your client and their story.
Tom Feher is a trial lawyer, founder and CEO of Feher Law, APC. His firm specializes in litigating and trying catastrophic injury, wrongful death, and employment cases. He has tried 50 jury trials throughout California obtaining multiple seven and eight figure verdicts. He has been honored with CAALA’s Rising Star Award in 2018, OCTLA’s Young Gun Award in 2017, and CAOC’s Street Fighter Award in 2016.
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Are you angry yet? Are you ready to do something about it?
On May 4, 2024, the Nebraska Supreme Court decided the case of Joshua M. v. State, 316 Neb. 446 (2024).
“[T]he complaint and record show claims of abuse and injuries that are independent of and do not arise from assault and battery. The complaint and record show that in addition to the beatings and sexual assaults, DHHS failed to remove the siblings from the foster home when it had ‘actual’ notice of the abuse; that for many years, the caseworker ‘ha[d] been trying to report abuse/neglect’ by the foster parents; and that the foster parents warned the siblings that if they reported the abuse and it were investigated, ‘the only thing they’ll be picking up is a dead body.’”
Joshua M. v. State, 316 Neb. 446 (2024).
“[T]he siblings, along with others reporting on their behalf, sought help from therapists and DHHS, but were not successful at changing the escalating abuse.”
Joshua M. v. State, 316 Neb. 446 (2024).
A majority opinion of our Supreme Court determined that the plaintiffs – minor children who were sexually and physically abused by their foster parents, of which DHHS had actual notice – could not bring a negligence claim against DHHS, and the State of Nebraska, for their horrible injuries.
The plaintiffs had alleged negligence in the conduct of the state actors. They did not allege an assault, or other intentional conduct. They alleged a failure of the duty of ordinary care by state actors, to protect them from harm. (The same breach of duty for which parents lose custody of their children every day, in this state, ironically, resulting in child placement in foster care. See, e.g. State v. Gary L. (In re Sireyha B.), 2019 Neb. App. LEXIS 139 (Neb. Ct. App. Apr. 29, 2019); State v. Yolanda A. (In re Interest Messiah T.), 279 Neb. 900, 782 N.W.2d 320 (2010)).
The Supreme Court did not even acknowledge that DHHS failed these kids, nor did the Court deny it. The Court, in cold and bureaucratic language, found the state was immune because they were victims of intentional conduct, which is right there, in the immunity statute.
“There is no debating that the abuse of a child entrusted to the foster care system is deplorable. If the Legislature determines, as a matter of public policy, that tort recovery should be allowed against the State or its political subdivisions for at least some claims arising out of assault or battery, it can narrow the scope of the current exemption under the STCA and the PSTCA through the usual lawmaking process.” Joshua M. v. State, 316 Neb. 446 (2024).
The interpretation of this state’s sovereign immunity statute by the Nebraska Supreme Court in Joshua M. is a dangerous wave of the judicial wand that overturned precedent
going back to 1977. Koepf v. County of York, 198 Neb. 67, 251 N.W.2d 866 (1977).
This decision by our Supreme Court will not be corrected by “the right set of facts,” brought on appeal, to correct this oneoff decision. You read it, in their own words. The only way to correct this frightening development in the law is legislatively.
In 2023, the Legislature passed LB25 (with no votes to spare), which would have at least protected our children, in public schools, from predatory teachers whose dangerous criminal backgrounds, or sketchy work histories, warn of the looming danger. Our Governor vetoed that law.
A veto override was not possible.
On November 5, 2024, Nebraskans will have the opportunity to make our children safer, by voting for candidates or incumbents who will promise to overturn Johua M.
NATA PAC will be finding those candidates who are committed to our children’s safety. We will support them at any cost, to see that they are elected, and go to Lincoln to fix this horrible decision.
This election, NATA PAC is going to do whatever it takes to hold this government, and its workers accountable for turning its backs on those who most need its protection.
Please help us turn our anger into action, our outrage into results.
If you are not yet giving, please become a contributor. If you are giving, I hope you will review your contribution to see if you can give any more.
NATA
CONTRIBUTORS NATA PAC is the political arm of the Nebraska Association of Trial Attorneys. It was established as a vehicle by which Nebraska trial lawyers could encourage and support candidates for public office who believe in ensuring the rights of the citizens of Nebraska by preserving the advocacy system.
$20,000
Atwood Law P.C., L.L.O.
Ausman Law Firm, Omaha
Dowd & Corrigan LLC, Omaha
Dowding, Dowding, Dowding & Urbom Law Offices, Lincoln
Hauptman O’Brien Wolf & Lathrop, P.C., Omaha
Inserra Kelley Cooper Sewell, Omaha Knowles Law Firm, Omaha
After serving as NATA’s Executive Director for 46 years, Stella Huggins retired at the end of June, 2024. In preparation for this transition, Deborah Neary was hired to take over as Executive Director on July 1st. During this leadership transition Deborah made an effort to not only learn about NATA’s future plans, but also to better understand the organizational history and to listen to the strong leaders and passionate advocates that built NATA. As Winston Churchill stated, “the farther back you can look, the farther forward you are likely to see.” Deborah enjoyed culling through historical documents, interviewing members, and learning about the exhilarating growth potential ahead. Kudos and gratitude to all that helped build this organization and have helped further the NATA mission on behalf of all Nebraskans.
BACK. FORWARD.
1958 Frederick H. Wagener, Lincoln
1959
1960
1961
1962
1963
1964
1965
1966
1967
1968
1969
1970
1971
1972
John R. Doyle, Lincoln
Clayton H. Shrout, Omaha
Lloyd L. Pospishil, Schuyler
Warren C. Schrempp, Omaha
Charles E. Kirchner, Omaha
George E. Svoboda, Fremont
John P. Miller, Omaha
Theodore L. Richling, Omaha
Thomas A. Walsh, Omaha
M. J. Bruckner, Lincoln
Alfred A. Fiedler, Omaha
Kenneth H. Elson, Grand Island
Patrick L. Cooney, Omaha
William P. Mueller, Ogallala
1973 Hal Bauer, Lincoln
1973-74
1974-75
1975-76
David B. Downing, Superior
James M. Knapp, Kearney
R. M. Van Steenberg, Scottsbluff 1976-77 1977-78
1978
Lobby Firm Engaged
LB 573 Requirement of offering underinsured motorist coverage with automobile liability insurance.
Grand Island, O. William Von Seggern
Lincoln, Susan Jacobs 1987-88 Omaha, James R. Welsh 1988-89
Columbus, Douglas R. Milbourn 1989-90
Scottsbluff, Robert G. Pahlke 1990-91
1991
Lincoln, John V. Hendry 1991-92
Lincoln, William A. Wieland 1993-94
Omaha, David J. Cullan 1994-95
Omaha, E. Terry Sibbernsen 1995-96 Lincoln, Rod Rehm 1996-97
LB 741 Med pay offset which would prevent the insurance carrier from deducting from a settlement, or crediting against it, any advance medical payments to an injured person unless the injured person has been fully compensated for any claim or loss arising from the accident or event.
LB 588 This bill included NATA’s bill LB77 which allowed loss of earning capacity benefits in cases involving multiple schedule member injuries if the injured workers suffered loss of earning capacity of 30% or more.
1978-79
1979-80
1980-81
1981-82
1982-83
1983-84
1984-85
Francis M. Casey, Plattsmouth
Martin A. Cannon, Sr., Omaha
Michael J. Mooney, Omaha
C. J. Gatz, Norfolk
James A. Lane, Ogallala
Joseph K. Meusey, Omaha (Deceased)
Robert P. Chaloupka, Scottsbluff (Deceased) 1985-86
Con M. Keating, Lincoln
Signing ceremony for LB88 Comparative Negligence passed in 1991. Left to right, front: Senators Eric Will, Brad Ashford, Governor Ben Nelson, Senators Gerald Conway, Jerry Chizek, and Chris Abboud. Back: John Hendry, Herb Friedman, Harvey Perlman, Vince Powers, Jim Bruckner, and Bill Wieland.
Michael Javoronok, Gering
George H. Moyer, Jr. Madison
-2000 Steven M. Lathrop, Omaha
LB 48 Substitution of Real Party in Interest
LB 64 Adoption of Learned Treatise Exception to the Hearsay Rule
Vincent M. Powers, Lincoln
James E. Harris, Omaha
Royce E. Norman, North Platte
Robert R. Moodie, Lincoln
James R. Brown, Omaha
Clarence E. Mock, Oakland
Julie Shipman-Burns, Lincoln
1987 “Paul O’Hara began his report with a review of the developments since the last Board meeting on LB 425, the omnibus “tort reform” bill introduced by Senator Conway. The public hearing was held on February 18th, 1987. Those who appeared on behalf of NATA made excellent presentations, and the bill was killed by the Judiciary Committee the next day. At the request of some senators, the bill was revived, but only to consider the issue of joint and several liability/comparative fault in order to see if there was any possibility of compromise.” — Nebraska Association of Trial Attorneys Board Meeting Summary Minutes, April 10, l987 quotes from members
“As I look back on the history of NATA, I am proud that we accomplished many successes including: ending slight-gross negligence; defeating every major tort reform effort in the past 30 years; and passing reasonable laws which had a broad base of support.” – DAN
THAYER
“I appreciate the network of great lawyers; an organization that can get me what I need, as a trial lawyer, INSTANTLY – help with an expert, help with a legal issue, help with intel on a judge or opposing party; great lawyers who inspire me to do more, try harder, be better, grow; creative thinkers who will FREELY share their years of experience and wisdom; some of my best friendships have grown out of NATA – people I don’t get to see often, but with whom I have the most meaningful and authentic friendships.” – MATT LATHROP
“I am grateful for the camaraderie amongst an eclectic group of folks who largely share the same vision for the folks we represent. Folks who are down and sometimes out. Folks who need a voice. I have received so much from this group. I can honestly say that, without NATA, I would not have had the courage to start my own practice. I hope I can play a meaningful part in paying it forward to the next generation.” –
JASON AUSMAN
LB 586 Medical Provider Liens. Sen. Lathrop’s floor amendment added that measure of damages for medical expenses in personal injury cases are the billed charges, rather than discounted charges.
LB 216 Repeal of the remainder of the guest statute
LB 780 Work Comp: Mental Injuries (Sen. Lathrop bill, supported by NATA)
NATA published the Civil Litigation Manual.
presidents
2007-08
2008-09
2009-10
2010-11
2011-12
2012-13
Matthew A. Lathrop, Omaha
James Paloucek, North Platte
James R. Harris, Lincoln
Mandy L. Strigenz, Omaha
Michael W. Meister, Scottsbluff
Peter C. Wegman, Lincoln 2013-14
Michael F. Coyle, Omaha
– ROSS PESEK
“Publishing of the NATA Civil Litigation Manual is a big accomplishment. When I was starting out, I referred to it often. I still do on occasion.”
Stella Huggins retired as the Executive Director.
“Stella is not only a peer and colleague…she is also a cherished friend! Throughout the years, I’ve relied on her wise counsel. Stella’s wealth of organizational knowledge is unparalleled, honed through her remarkable leadership in shaping NATA from its inception into the well-respected institution it is today. Her guidance, along with the dedication of its volunteers, has been instrumental in propelling NATA forward. Stella has contributed significantly to the legal profession and she will be greatly missed.”
– DORIS HUFFMAN, Executive Director, Nebraska State Bar Foundation
“Working with Stella has been a grounding experience throughout my career in the Judicial Branch. From the beginning, she has brought calm and professionalism to our often chaotic and competitive environment. Stella’s sage advice, rooted in her deep respect for the legal system, has been invaluable to me and to all who seek her counsel, which she freely gives without judgment. Her impending retirement marks the end of an era, but her legacy of wisdom and integrity will continue to influence the legal community.”
–
JANET BANCROFT, Supreme Court
Public Information
Officer
2014-15
Christopher P. Welsh Omaha 2015-16
Kathleen M. Neary, Lincoln 2016-17
2017-18
2018-19
Monte L. Neilan, Scottsbluff
Britany Shotkoski, Omaha
Dan Thayer, Grand Island
2019-20 Jason G. Ausman, Omaha
2020-21 Andrew D. Sibbernsen, Omaha
2021-22
Brock Wurl, North Platte 2022-23
Todd D. Bennett, Lincoln CURRENT Jonathan D. Urbom, Lincoln
“My favorite memory with Stella was at the first summer board meeting Stefanie and I attended in Minneapolis. In true Stefanie fashion, she asked Stella questions about NATA that I would have felt silly to ask, but still wanted to know the answers to. During that ride to the airport, I came to understand how important NATA is to Nebraskans. All Nebraskans. This organization is not about trial lawyers. It’s about what welleducated trial lawyers can do to make Nebraska a better and safer place to live for everyone. I was “all in” after that conversation.
– JON URBOM
“Bob (Chaloupka) was involved with NATA for all of the years that he practiced law in Nebraska. It encouraged him and gave him a place to grow with his fellow professionals. He enjoyed working in the different areas for the organization. Bob said that working with Stella was an honor and a pleasure for him. He had the utmost respect for what she did for NATA and its members. Stella made it possible for the different parts of NATA to communicate and work together as a team. It was a place where each one could give and receive as they were able. Through her efforts and her dedication, trial lawyers in Nebraska found support and community.”
Learn how to obtain and analyze data to show that understaffing is part of a nursing home’s business model.
By || Ernest Tosh
The vast majority of injuries suffered by nursing home residents are the direct result of understaffing.1 Pressure injuries, falls, choking, dehydration, malnutrition, and unchecked infections are all caused by understaffing. Understaffing is intentional it’s a business model designed at the corporate level and forced on the facility. When you handle a nursing home case based on understaffing, the progression is simple: The facility was understaffed, the decision to understaff was intentional and based solely on money, and that decision killed your client.
Nursing home cases have two major components: the abuse, neglect, and injuries of your client; and corporate malfeasance. Understaffing, which falls under the corporate malfeasance component, is perilous for defendants if you can present data supporting the proposition that the facility was
understaffed and that the understaffing was due to decisions made at the corporate level decisions that placed profits over people.
By analyzing staffing information you can establish the level of staffing that the facility reported to state and national agencies.2 Then compare this “reported staffing” to “expected staffing” to determine the degree of understaffing. The Centers for Medicare and Medicaid Services (CMS) regulates nursing homes in the United States. Although CMS does not have a numerical minimum staffing requirement, it requires nursing homes to have sufficient nursing staff with the appropriate skill sets “to assure resident safety and attain or maintain the highest practicable physical, mental and psychosocial well-being of each resident, as determined by resident assessments.”3
Some states, such as Texas4 and Virginia,5 follow CMS’s lead and require
only “sufficient” staffing, without delineating a specific minimum staffing level. Other states go further they require a specific minimum staffing level and also require that the staffing level meets the needs of the individual residents.
For example, Vermont requires 3.0 hours of nursing care per resident per day,6 while California requires 3.5 hours of total nursing care with a minimum of 2.4 hours of the total provided by certified nurse assistants (CNAs).7 Note that satisfying the minimum staffing requirement in a given state does not mean that the facility had sufficient staff to meet the needs of each resident.
Staffing Analysis Basics
The analysis is accomplished with basic math. You want to know how much staffing the facility had, how much it should have had, and what the difference is.8 Ultimately, this is done with three basic data points: actual staffing data for the facility, the number of residents in the building (census), and an understanding of the care each resident requires (acuity). With that information, you can then determine what that difference was worth in savings to the facility. First, you need to understand a few key terms.
Reported staffing. This is the amount of staffing the facility reports. In practice, the analysis is very straightforward. To determine total reported staffing in a 24-hour period, add together the registered nurse (RN) time, licensed practical nurse/licensed vocational nurse (LPN/LVN) time, and CNA time. The total is the total direct care, in worked hours. For example, if the facility reports 24 RN hours, 60 LPN hours, and 210 CNA hours, this is 294 hours of direct care.
To be relevant to a case, this data needs to be converted to “hours per patient per day” (HPPD). To calculate this, take the total hours and divide by the census. In
Satisfying the minimum staffing requirement in a given state does not mean that the facility had sufficient staff to meet the needs of each resident.
the example earlier, if the census was 82 residents, the math would be:
294/82 = 3.58 HPPD
At this point, we know the facility was staffed at roughly 3.6 hours of direct care per patient per day. You also can calculate the HPPD for each nursing category by dividing the hours by census. For example:
RN = 24/82 = 0.29 HPPD
LPN = 60/82 = 0.73 HPPD
CNA = 210/82 = 2.56 HPPD
Minimum staffing. This is the staffing needed to meet the minimum recommended staffing generally (but it may be different from the facility’s expected staffing, described later). The most recent literature on staffing indicates that the minimum for total direct care staffing should be at least 4.1 HPPD.9 Academic articles by nursing care experts conclude the minimum staffing a nursing home should have for RNs is 0.75 HPPD, for LPNs is 0.55 HPPD, and for CNAs is 2.8 HPPD.10
Thus, the facility in the example was understaffing RNs by 0.46 HPPD, overstaffing LPNs by 0.18 HPPD, and
understaffing CNAs by 0.24 HPPD, for a total understaffing of 0.52 HPPD comparing reported staffing to minimum staffing. This is standard “for -profit” staffing: cut RN hours to almost nothing and slightly overstaff LPN hours to cover some of the RN understaffing. Since RNs are the most expensive labor, facilities may try to drop RN hours as low as possible to save as much as possible.
The understaffing numbers in this example appear small for a single patient, but in the aggregate across the facility they are substantial: Each resident is being shorted 0.46 hours of RN time per day, almost half an hour per day. Across the entire 82-resident facility that is 37.72 hours per day, 264 hours per week, and just under 14,000 hours per year. That’s seven full-time RNs that this facility is shorting its patients and assuming an RN pay rate of $37.11 per hour, this facility saved $510,923 on RN staffing in one year.11 It gave some of that savings back with overstaffing LPNs but also saved more money by understaffing CNAs. In my experience, it is common to find facilities that understaff in the $500,000 to $1 million range per year, and occasionally more with larger facilities.
Expected staffing. This is the staffing needed to meet the acuity needs of each resident. CMS has a nursing home comparison website called CMS Compare,12 which uses a five-star rating system. Part of the star rating system is staffing. From 2009 to 2018, CMS published expected staffing, as it was used to assign staffing stars for each facility.13
In 2018, over objections from its expert advisory panel, CMS changed the methodology for assigning stars in the rating system. It no longer uses expected staffing; instead, it uses a different metric called “case-mix adjusted hours.”14 But CMS has never disavowed expected staffing as a valid means for calculating the nursing needs of nursing home residents; it merely changed how it assigns stars. To zero in on the exact staffing needs at one facility over a specific time, compare reported staffing to expected staffing.
Expected staffing is determined using time studies conducted by CMS.
The basic premise is that the facility is assessing each person using a CMS evaluation tool called the Minimum Data Set (MDS), a 40+ page assessment document that lays out how much assistance the individual needs with eating, dressing, toileting, their medical diagnosis, and rehabilitation.15 In Section Z of the MDS, there is an acuity score for that individual.16 Facilities submit the MDS to CMS, and the acuity score sets the daily reimbursement for this resident.
Taking a step back, this is essentially the federal government asking the facility, “how much care does this person need?” The facility responds, “this resident needs X amount of care per day,” to which the federal and state governments respond with a daily reimbursement to the facility. The rates are based on the understanding that the facility is going to meet the individual needs of each resident. Each reimbursement is directly tied to the
amount of time that is expected to be needed to care for an individual with that acuity. Staffing significantly below expected staffing is fraud.
Calculate expected staffing by obtaining Section Z from every MDS done at the facility, starting six months before your client entered the facility, through the day of their discharge. This data shows when each resident entered and was discharged from the facility, and what their acuity level was each day. You can look up that acuity level in a table to determine how much RN, LPN, and CNA nursing time that person needs per day.17 If you add all the nursing time associated with each resident each day, then divide by the number of residents in the building that day (census), you will have the exact expected staffing for that facility that day.
This calculation also will reveal the exact expected amount of RN, LPN, and CNA time for each day, which can be compared against the facility’s reported staffing. This can help you show why your client fell on that Saturday or why your client developed that stage IV pressure wound in three weeks. You also can use the hourly average cost of labor from the annual cost reports (CMS Form 2540-10) that each facility must file with CMS each year18 to explain to a mediator or jury exactly how much money the facility pocketed in staff savings and how that directly and negatively impacted your client.
In sum, after determining a facility’s reported, minimum, and expected staffing, you can use this data to calculate whether it was understaffed both generally and for the facility’s acuity level. Here are two formulas: Reported staffing – minimum staffing = over- or understaffing (generally)
Reported staffing – expected staffing = over- or understaffing (specifically for this facility’s acuity level).
Sources of Staffing Data
To calculate whether a facility was understaffed, you’ll need to collect staffing data. Here are a few options for obtaining this.
Payroll Based Journal. Arguably the best staffing data is held by CMS in their Payroll Based Journal (PBJ) system.19
CMS started collecting PBJ data in January 2017, and it is usually available online 90 days after each quarter ends.20 PBJ data includes daily census and daily staffing, broken down by RN, LPN, and CNA. With this information you can determine the exact reported staffing for any day or length of time.
CMS annual cost report. CMS requires each nursing home to file an annual cost report known as CMS Form 2540-10.21 You can obtain CMS annual cost reports via a federal Freedom of Information Act (FOIA) request to CMS.22 The report is a spreadsheet with 66 tabs, and while most of these tabs will have no relevance to your case, worksheet S-3-V contains staffing data. The annual cost report also contains the facility census on worksheet S-3 at row 1, column 7. Nursing administration hours are available on worksheet S-3, Part II, line 7.
The data is aggregated for a year, so you cannot determine what the staffing was on a certain day, but you can see what the staffing was for the year. Another caveat is that the data reported is “paid hours,” not “worked hours.” Paid hours include vacation and sick leave and therefore will be an inflated number when you are analyzing for direct care hours as compared to PBJ data, which is worked hours.23
As mentioned above, the annual cost report includes average hourly wages paid to each classification of employee. This can be used to calculate the savings due to understaffing based on the actual pay scale the facility uses instead of using the national labor statistics. The hourly wages are located on the same lines as the hours paid information on
worksheets S-3-V and S-3, Part II.
Medicaid cost reports. Medicaid cost reports are required by all states; each state uses a different form and collects different information. Most states do not collect staffing data.
Notable exceptions are Arizona,24 California,25 Illinois,26 Oklahoma, and Pennsylvania,27 which all collect good staffing data. All of these states have cost reports online except Oklahoma’s, which must be obtained by contacting the state and filing a request. This is not an exhaustive list, however, so check with your state Medicaid agency to see whether your state collects staffing data. The reporting requirements change from time to time, so data might be available in your state.
Like the CMS cost report, the staffing data contained within Medicaid cost reports is annualized data, not daily staffing data. You’ll also need to determine whether it is paid hours or worked hours some states conveniently collect both types of data.
Staffing in Discovery
You can obtain additional staffing data in discovery. Request the facility’s “punch detail” (the industry’s term for timecards). This includes the exact times each employee clocked in and out of the facility for their individual shifts. Although normally provided in PDF format, the data needs to be in a spreadsheet to be usable. Instead of hand converting PDFs, request and insist that the production be in native format: either .csv (standard spreadsheet) or .xlsx (Excel). Native format allows for fast and efficient staffing analysis calculations.
Also request staffing schedules, which are useful to get a 30,000-foot view of the staffing as it applies to different floors or
Budgets, especially staffing budgets, are critical to link the understaffing to corporate malfeasance.
not mean they showed up for their shift, arrived on time, or stayed the entire shift. Budgets, especially staffing budgets, are critical to link the understaffing to corporate malfeasance, as well as policies for budgeting, setting staffing, and scheduling staffing. The budgets set the staffing. The facility employees may say they staff to acuity, but that is rarely the case. Because they are staffing to a budgetary number dictated by their corporate leadership, they staff only to census.
This means that for each individual admitted to the facility, the facility’s employees will staff an additional number of hours, no matter what that resident actually needs. This is a per se violation of CMS and state staffing regulations. The budgets also can be used to establish corporate involvement in the day-to-day operational control of the facility.
Expected staffing reveals a lot about a facility, but it can be challenging to calculate. At the facility level, you must request production of all the data in Section Z for all MDS that were performed in the six months leading up to your resident’s admission and continuing through their entire stay. Section Z is where the facility reports a final coding for the resident that tells Medicare how sick they are, and in turn, how much the facility gets paid for that resident. In short, it shows the acuity of each resident. You need the Section Z
person needs per day.29 Doing this for every resident in the facility for each day your client was there is a sizable undertaking, but the payoff is well worth the effort.
To streamline authentication and admissibility, I suggest asking the defendants for the data and annual reports used in your analysis. If they balk, send what you’ve used from publicly available data with a request for admission asking them to authenticate it. A staffing analysis can be tedious and time-consuming, but it is ammunition you can use when you question the director of nursing, the administrator, and corporate players about why they were not staffing to acuity. This analysis can demonstrate that your client’s injuries were not due to an isolated incident. Rather, the understaffing was intentional, done to increase profits, and done with conscious indifference to the lives of residents.
AAJ RESOURCES
units within the facility. The schedules data for all the residents in the facility.28 are aspirational, so they are not to be used for an exact staffing analysis. The fact that someone was scheduled does
With those codes, you can look up the acuity level in a table to determine how much RN, LPN, and CNA time that
Ernest Tosh is a partner at Bedsore. Law and can be reached at Ernest@ Bedsore.Law.
Notes
1. Ctrs. for Medicare & Medicaid Servs., Report to Congress: Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes Phase II Final Report (2001); Jane Bostick et al., Systematic Review of Studies of Staffing and Quality in Nursing Homes, 7 J. Am. Med. Dir. Ass’n 366–76 (2006), DOI: 10.1016/j.jamda.2006.01.024.
2. Another avenue for using data to bolster a nursing home case is a facility’s financial data. The financial data can be, and is, manipulated at the facility level, and it is often possible to show that the facility had plenty of money to properly staff the facility but chose not to. Discussion of the financial analysis component is outside the scope of this article, but I am happy to discuss it with anyone who wants more information on that subject.
3. 42 C.F.R. §483.35.
4. 26 Tex. Admin. Code §554.1001.
5. 12 Va. Admin. Code §5-371-210(B).
6. 13-007 Code Vt. Rules §7.13(d)(1)(i).
7. Cal. Health & Safety Code §1276.5.
8. Charlene Harrington et al., Appropriate Nurse Staffing Levels for U.S. Nursing Homes, 13 Health Servs. Insights, Dec. 2020, at 1–14, DOI: 10.1177/1178632920934785 [hereinafter Harrington I].
9. See id. at 5; Report to Congress, supra note 1.
10. Report to Congress, supra note 1; Charlene Harrington et al., Time to Ensure Sufficient Nursing Home Staffing and Eliminate Inequities in Care , J. of Gerontology & Geriatric Med. (June 2021), DOI: 10.24966/ GGM-8662/100099 [hereinafter Harrington II].
11. U.S. Bureau of Labor Statistics, Occupational Employment and Wages, May 2022:29-1141 Registered Nurses , https:// www.bls.gov/oes/current/oes291141.htm.
12. Ctrs. for Medicare & Medicaid Servs., Find & Compare Providers Near You , https:// www.medicare.gov/care-compare/?redirect =true&providerType=NursingHome.
13. See Harrington I, supra note 8.
14. See id.
15. Medicare & Medicaid Programs; Reform of Requirements for Long -Term Care Facilities, 81 Fed. Reg. 68,688 (Oct. 16, 2016); Ctrs. for Medicare & Medicaid Servs., State Operations Manual: Appendix PP−Guidance to Surveyors for Long Term Care Facilities, Feb. 3, 2023, https:/ /www. cms.gov/Medicare/Provider-Enrollmentand-Certification/GuidanceforLawsAnd Regulations/Nursing-Homes.html; Am. Nurses Ass’n, Nursing Staffing Requirements to Meet the Demands of Today’s Long Term Care Consumer: Recommendations From the Coalition of Geriatric Nursing Organizations
(CGNO), Position Statement, Nov. 12, 2014, www.nursingworld.org.
16. Prior to Oct. 1, 2019, this was called a RUG score; it is now called a Nursing Services Score.
19. Ctrs. for Medicare & Medica id Servs., Electronic Staffing Data Submission Payroll-Based Journal: Long- Term Care Facility Policy Manual, June 2022, https:// www.cms.gov/Medicare/Quality-InitiativesPatient-Assessment-Instruments/ NursingHomeQualityInits/Downloads/ PBJ-Policy-Manual-Final-V25-11-19-2018. pdf; Ctrs. for Medicare & Medicaid Servs., Payroll Based Journal Daily Nurse Staffing, https://data.cms.gov/quality-of-care/ payroll-based-journal-daily-nurse-staffing.
20. Payroll Based Journal Daily Nurse Staffing, supra note 19. PBJ data was voluntarily reported from July 1, 2016, to Dec. 31, 2016. It was a period for the facilities to work out any bugs they had with transmission and to make sure they were submitting their staffing data correctly but I would not rely on it as it may not have been submitted accurately. Starting Jan. 1, 2017, the PBJ is available online without a FOIA request.
21. Skilled Nursing Facility 2540-2010 Form, supra note 18.
22. Ctrs. for Medicare & Medicaid Servs., Freedom of Information Act, https://www. cms.gov/Regulations-and-Guidance/ Legislation/FOIA.
23. To estimate worked hours from paid hours, deduct 8% from paid hours (paid hours x 0.92 = worked hours).
24. Ariz. Dep’t of Health Servs., Health Facility Cost Reporting Application , https://apps. azdhs.gov/HFCR/.
25. Cal. Dep’t of Health Care Access & Info., Financial & Utilization Reports, https:// sieraarchiveexternal-oshpd-web-prd. azurewebsites.net/.
26. Ill. Dep’t of Health Care & Family Servs., Enrolled Long Term Care Provider Cost Reports, https://hfs.illinois.gov/ medicalproviders/costreports/ icfddprovidercostreports.html.
27. Pa. Dep’t of Human Servs., Nursing Facility Report Portal, https://nfrp.panfsubmit.com/.
28. Section Z data can be produced without identifiers to be HIPAA compliant.
29. See Harrington II, supra note 10.
AWARDS DINNER SEMINAR
THURSDAY SEPTEMBER 12
6 pm RECEPTION 7:15 pm DINNER
Enjoy an evening of light jazz by Just Wait Jazz, cocktails, award presentations and fine food. Glacial Till Cider House and Tasting Room 1419 Silver Street Ashland, NE
FRIDAY SEPTEMBER 13
Unlocking the Secrets of Success: Lessons from Recent Trial Verdicts and Merited Settlements
Attorneys who achieved major trial victories or remarkable settlements will share their insights on effective advocacy in high-stakes scenarios.
THE NEBRASKA ASSOCIATION OF TRIAL ATTORNEYS
Invites you to join your fellow members for the September 12 & 13, 2024
2024 ANNUAL MEMBERS’ EVENTS
8:30 am REGISTRATION
9 am - 4 pm SEMINAR
Scott Conference Center 6450 Pine Street Omaha, NE
SEMINAR CHAIR: Cameron Guenzel
Johnson Flodman Guenzel & Wasserburger Law Firm, Lincoln
PROGRAM CHAIR: Jason Galindo Galindo Law Office
SPEAKERS:
Steve Olsen & Kyle Long
Simmons Olsen Law Firm
Rubina Khaleel
Hennessy & Roach, P.C.
Elizabeth Goaverts
Powers Law
Jennifer Turco Meyer Dyer Law
Erin Fox
Fox Law, LLC
Jason Ausman
Ausman Law Firm, PC, LLO
THANKS TO OUR SPONSORS
Summit Structured Settlements Minnesota Lawyers
Great Plains Reporting Dr. Shane Davidson NOVO Lincoln
NATA Roscoe Pound Memorial Award for Oral Advocacy
For over 50 years NATA has participated in the University of Nebraska College of Law’s annual Thomas Stinson Allen Moot Court Competition by presenting its Roscoe Pound Memorial Award for Oral Advocacy.
The Allen Competition is held during the Spring Semester, and all the competitors put in an extraordinary amount of work while maintaining their class load as law students. Each year the competing students complete a brief regarding two issues and then proceed to have oral arguments in front of a panel of judges. Following preliminary rounds, two final teams proceed to have oral arguments in front of three Nebraska Supreme Court Justices.
This year’s final competition was held on March 28 and judged by Justices John R. Freudenberg, William B. Cassel, and Jonathan J. Papik, who determined the winning team, best brief and the best oral advocate. First place went to the team of Anne Jenkins and Dallas Jones. Second place went to Joe Aeilts and Jacob Barker. Joe Aeilts was judged the best oral advocate in the competition.
NATA President Jon Urbom offered his congratulations as Joe Aeilts was presented with NATA’s Roscoe Pound Memorial Award for Oral Advocacy.
verdicts & settlements
$241,000
Auto Collision – Multiple Injuries
Dawson County
Date of Settlement: May 1, 2024
Plaintiff Attorney: Ted A. McKeone
46 year old female was riding as a passenger in a vehicle owned and operated by her son. The vehicle was struck in an open intersection – equal fault. The policy had a limit of $100,000 from other at fault drivers. The policy limit of $100,000 at fault of son and $41,000 in UIM benefits from client’s UIM carrier who also insured negligent son. Coverage: $250,000. Medicals: $104,995 (58,000 for AirCare). Lost wages: $11,000. Unusual Facts: Air care lien negotiated down to one third of total invoice.
$7,500,000
State Tort Claim Action – Physical injuries and brain injury
Hall County
Date of Settlement – February 9, 2024
Plaintiff Attorney – Steven W. Olsen
The male driver claimed that a Nebraska State Patrol (NSP) officer was in pursuit of a stolen vehicle over a 5-mile distance with speeds of up to 140 mph. The trooper had his lights, siren and wig-wag emergency lights activated. Shortly before impact, the driver of the stolen vehicle shut off his lights. He then collided with the Plaintiff who was making a left turn at an intersection in Grand Island. The driver of the stolen vehicle was killed in the accident.
The Plaintiff suffered physical injuries and a brain injury. He underwent 15 surgeries and is left with a fused ankle that causes daily pain, as well as constant pain from hip and back fractures. He will need treatment and medications into the future including injections for headaches.
There was no cap on the coverage. Medicals: $1,047,048. Lost Wages: $118, 158. Unusual Facts: The life care plan was significant as it included injections and medications for the future, along with the prospects for future surgery.
$3,700,000
Auto Collision – Wrongful death
Hitchcock County
Date of Settlement – January 17,2023
Plaintiff Attorney – Steven W. Olsen
A vehicle driven by the defendant and owned by the co-defendant crossed the centerline striking the vehicle driven by the Plaintiff, resulting in his death. The Defendant driver was charged with driving left of center and motor vehicle homicide.
The injuries resulted in the death of the Plaintiff who was 61 years old. Lost Wages: Future lost wages were projected at $2,250,000 to age 65 and $4,100,000 to age 69.
Justices and Winners — left to right, back row: Justices Papik, Cassel, and Freudenberg. front row, Anne Jenkins, Dallas Jones, Jacob Burker, and Joe Aeilts.
Award Winner and NATA President
Joe Aeilts and Jon Urbom
A L L R I S E , C O U RT I S I N S E S S
KUDOS to Danny Leavitt of Salerno & Leavitt, for a successful seminar on April 19th
SPECIAL THANKS TO OUR SPEAKERS:
Matt Lathrop, Office of Matthew A. Lathrop
Ross Pesek, Pesek Law
Jennifer Turco Meyer, Dyer Law
Joel Nelson, Keating, O’Gara, Nedved & Peter
Joel Feistner, Locker Pavelka Dostal Braddy & Hammes
Leslie Stryker Viehman, Nolan Olson & Stryker
Dr. Shane Davidson, NOVO Lincoln
Mark Richardson, Rembolt Ludtke LLP
Nearly 100 attendees participated in a mock trial and earned 5 CLE credits.
Photo courtesy of Pesek Law
• MLM has returned a dividend check to policyholders annually, since 1988, over $80 million total
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WASHINGTON UPDATE
Every day, AAJ strives to hold bad actors accountable for killing and injuring Americans, advocating on issues that affect your practice. Our work impacts you and your clients – whether you are handling individual cases or have a mass tort practice. In light of recent insurance industry calls for new tort reform, we must all stand strong for the battles ahead.
Here are some recent highlights of our advocacy.
RESTORE THE RIGHTS OF WORKERS
U.S. Senator Patty Murray (D-WA) and U.S. Representatives Robert C. “Bobby” Scott (D-VA-03) and Jerrold Nadler (D-NY12) reintroduced their bicameral Restoring Justice for Workers Act on June 11. This critical legislation would restore the rights of workers seeking to escape forced arbitration clauses and pursue work-related claims in court.
The bill would override the 2018 Supreme Court decision, Epic Systems v. Lewis, which allowed employers to continue to enforce arbitration clauses against workers. The use of forced arbitration clauses that block workers’ access to the courts has led to widespread non-enforcement of workers’ rights, including their right to minimum wage, overtime, and to a workplace free of discrimination.
The Restoring Justice for Workers Act would:
• Open the courthouse doors for workers by prohibiting the use of forced arbitration clauses in employment contracts and prohibiting employers from requiring employees to waive their right to engage in joint, class, or collective legal action.
• Reverse the Supreme Court’s 5-4 decision in Epic Systems, which dismantled workers’ right to band together to hold unscrupulous employers accountable.
• Uphold the rule of law by ensuring that workers’ rights are enforceable through our justice system.
• Ensure that post-dispute arbitration agreements are not obtained by threat or coercion, that the agreement is understandable, and that the employee affirmatively consents to the agreement in writing and is fully aware of their rights in the workplace.
We thank Sen. Patty Murray, Rep. Bobby Scott, and Rep. Jerrold Nadler for introducing this important legislation. AAJ strongly supports this bill that would restore the legal rights of thousands of American workers.
IMMUNITY BATTLE IN CONGRESS
Chemical corporations are pushing for nationwide immunity. The U.S. House GOP Farm Bill includes nationwide im-
By Linda Lipsen, CEO, American Association for Justice
munity for pesticide claims. When American farmers develop cancer from dangerous and deadly chemicals, they should be able to hold the corporations who sold those chemicals responsible. But if the Farm Bill passed by the House Agriculture Committee in May becomes law, local and state public health protections will be wiped out, and pesticide manufacturers and chem-conglomerates will receive immunity from all legal responsibility to those Americans they’ve hurt.
If juries find that Roundup and other pesticides are killing and making Americans sick, these corporations will simply get a pass. Incredibly, some members of Congress are greenlighting this strategy. We urge the Senate to stand by our farmers and reject this measure.
AAJ will continue the fight to protect the rights of those harmed by dangerous pesticides, such as Roundup, Paraquat, and dicamba. Read AAJ’s statement and a press release about the House Committee on Agriculture’s markup of the Farm Bill.
FEDERAL RULES UPDATE
AAJ also closely monitors changes to the Federal Rules of Civil Procedure, Federal Rules of Appellate Procedure, Federal Rules of Evidence, and other rules governing court procedure.
Below are some recent updates:
• A new federal rule on MDLs, Rule 16.1, will take effect December 1, 2025. It is designed to provide direction to the parties and the court about issues, including leadership, that need to be addressed early on by the transferee judge.
• The Standing Committee recently approved amendments on privilege logs. AAJ worked to ensure that a burdensome provision on categorial logging pushed by the defense bar was not included in the rule.
• A new AAJ working group on cross-border discovery will meet with the federal judge appointed to oversee a possible rule change. If you are interested in participating, contact Sue Steinman .
• Proposed amendments on amicus briefs (FRAP 29) will go to formal rulemaking in mid-August. More information on filing comments will be available once the rule is officially released.
FIGHTING FOR ALL TRIAL LAWYERS
Thank you for your ongoing support. AAJ departments –Public Affairs, State Affairs, Legal Affairs, and Communications – are working together to protect your practices against attacks by our opponents. Email me if you have any questions.
we
stronger together
JOIN US IN THE FIGHT FOR JUSTICE
The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA®), is an organization committed to promoting accountability and safety, advocating for a balanced civil justice system, improving our communities, and educating lawyers to provide excellent advocacy for their clients.
As a member of AAJ, you will play a meaningful role in the fight to protect the Seventh Amendment while accessing the tools you need to most effectively represent your clients against even the most powerful corporations and industries.
AAJ is the only national plaintiff lawyer association working as an advocate for trial lawyers on a broad range of issues, using lobbying, litigation, and public education to promote a fair and effective civil justice system.
JOIN THE AMERICAN ASSOCIATION FOR JUSTICE
Join us online at justice.org/Join or by contacting us at 1-800-424-2727.
Membership in the Circle of Advocates at an annual dues of $2,000 and Sustaining Membership at an annual dues of $1250 provide needed financial support for NATA’s work in service to its members, their clients, and the public.
NEW & REINSTATED MEMBERS
Matthew Chouinard
Morrow Willnauer & Church
Omaha
Andrew Alexander DeMasi
Lewis Brisbois Bisgaard & Smith Kansas City, Missouri
