CCL told a federal court that Nebraska had received sufficient compensation to offset its claim of $146,000 for past medical expenses paid on behalf of a catastrophically injured newborn when state law reduced her jury verdict by $15.5 million in a brief filed on the child’s behalf today.

     In S.S. v. Bellevue Medical Center, a child who suffered permanent brain damage in child birth due to substandard medical care won a $17 million verdict to cover a lifetime of care that the child will need. However, a Nebraska law mandated that the verdict be reduced to $1.75 million, a nearly 90 percent discount that will never be able to cover the child’s needs. CCL joined with the Omaha, Nebraska law firm of Cullan and Cullan, which tried the case, to challenge the reduction, but neither the federal district court nor the court of appeals were willing to be the first courts to apply recent Supreme Court precedent to invalidate the cap. The U.S. Supreme Court turned down review of the case.

    As the Supreme Court denied review, the Nebraska Department of Health and Human Services asked the federal district court to validate the State's entitlement of $146,000 of the remaining judgment. CCL opposed the motion on several grounds. Under Nebraska’s law capping damages in medical malpractice cases at $1.75 million, negligent health-care providers are responsible, through their insurance for the first $500,000. All amounts above $500,000 are paid by a state-run Excess Liability Fund. CCL's brief argued that the State itself benefitted from the reduction in the child’s compensation and any amount it might have claimed as a reimbursement for Medicaid expenditures from the lawsuit were more than satisfied by that reduction in the amount the State had to pay S.S.

      Alternatively, if the court were to determine that Nebraska still holds a valid lien against the judgment that was not satisfied when the verdict’s was diminished, CCL argued that, because Medicaid liens are only paid from the amounts allocated intended to compensate for past medical expenses the same proportionate reduction should apply to the lien. After all, the reduction was effectuated as a matter of state law. The same rule CCL described is typically employed when a case settles for less than full value. It should also apply here, reducing the $150,000 claimed lien to $15,000. In addition, any remaining lien should be further reduced proportionately by attorney fees and costs, under the common-fund doctrine. Finally, the CCL brief argues that no lien should be payable until the beneficiary’s death and, then, only to the extent that any monies from the judgment remain.