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In a Negligence Case Against Multiple Tortfeasors, What Happens When Some Parties Settle?

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The Nebraska Court of Appeals took on this case in Ammon v. Nagengast (24 Neb. App. 632).

Patricia Cody (“Cody”) underwent a medical procedure at St. Mary’s Community Hospital in Nebraska City, Nebraska, on January 23, 2012. Dr. Stephen Nagengast (“Nagengast”), performed the surgery.  A certified nurse anesthetist (CRNA), Denise Murry (“Murry”), assisted Nagengast. Nagengast had difficulty with the gas used to inflate the abdominal cavity at the start of the laparo­scopic procedure, and opted to change to an “open technique.” Murry quickly told Nagengast that Cody was doing poorly and that the procedure needed to be aborted. Cody no longer had a pulse, and her condition did not improve once the gas was removed. Nagengast testified that he was not informed of any change in Cody’s condition until she was in cardiac arrest. Oxygen was provided to Cody and the “advanced cardiac life support” protocol, including the administration of cardiopulmonary resuscitation (CPR), began immediately. The medical staff performed CPR for 15 minutes, and after Cody’s cardiac status resumed, she was transferred to a hospital in Lincoln, Nebraska, where she died on January 24, 2012. Sheena Ammon (“Ammon”), the special administrator of Cody’s estate, brought the negligence claims against the doctor, nurse, their employers, and the hospital.  Before the trial, the claims against several of the defendants were settled. The case was sent to a jury, which returned a verdict in favor of Nagengast and his employer. Ammon appealed.

Ammon’s appeal is based on the jury instructions. She claims the jury should not have been permitted to consider the defendants who had settled. The Court of Appeals disagreed. The Court examined the applicability of comparative negligence in a case with joint and several liability. Under Nebraska common law, an act wrongfully done by several persons, renders them liable for all damages, both economic and noneconomic, jointly and severally. And, the law says that after the claimant settles with a joint tortfeasor, the claims against others “shall be reduced by the amount of the released person’s share of the obligation as determined by the trier of fact.” Ammon did not meet the burden of proof, according to the jury, so the jury never even had to consider the comparative negligence of the multiple parties involved. The Court of Appeals found that the trial court had not erred in its instructions to the jury, and therefore affirmed its ruling in favor of Nagengast and his employer.

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