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Law School Case Brief

Murray v. UNMC Physicians - 282 Neb. 260, 806 N.W.2d 118 (2011)


In Nebraska, in cases arising under the Nebraska Hospital-Medical Liability Act, Neb. Rev. Stat. §§ 44-2801 to 44-2855 (Reissue 2010), the standard of reasonable and ordinary care is defined as that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances. Neb. Rev. Stat. § 44-2810. That standard is consistent with the general common-law rule and is a so-called unitary, or wealthblind, standard of care. In other words, the standard of care is found in the customary practices prevailing among reasonable and prudent physicians and must not be compromised simply because the patient cannot afford to pay. 


A patient was being treated for pulmonary arterial hypertension. Her treating physicians, wary of those health risks, decided not to administer the drug until the patient's insurer approved it or another source of payment could be found. But, regrettably, the patient died before either happened. Thus, the husband filed a medical malpractice action alleging that the physicians caused the death of his wife by negligently failing to administer Flolan therapy to treat her pulmonary arterial hypertension. The jury returned a general verdict for the physicians, and the trial court granted the husband's motion for new trial. The case was appealed. The physicians' evidence was that the decision to wait to begin the treatment was not economic, but was a medical decision, based on the health consequences to the patient if the treatment was interrupted. 


Should the physicians be found liable for medical malpractice?




The Court reversed the district court's order granting Robert's motion for new trial. The Court held that the trial court erred in concluding that it should have directed a verdict on the standard of care. And for that reason, the court abused its discretion in granting Robert's motion for new trial. The jury could have found that in this case, given the facts and testimony, the standard of care required Flolan to be administered immediately. But it was a question for the jury, and there was also competent evidence supporting a conclusion that the standard of care had not been breached. 

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