44-2840. Medical review panels; review claims; procedure; waiver.

(1) Provision is hereby made for the establishment of medical review panels to review all malpractice claims against health care providers covered by the Nebraska Hospital-Medical Liability Act in advance of filing such actions.

(2) No action against a health care provider may be commenced in any court of this state before the claimant's proposed complaint has been presented to a medical review panel established pursuant to section 44-2841 and an opinion has been rendered by the panel.

(3) The proceedings for action by the medical review panel shall be initiated by the patient or his or her representative by notice in writing with copy of a proposed complaint served upon the director personally or by registered or certified mail. Such notice shall designate the claimant's choice of the physician to serve on the panel, claimant's suggestion of an attorney to serve, and the court where the action shall be filed, if necessary.

(4) The claimant may affirmatively waive his or her right to a panel review, and in such case the claimant may proceed to file his or her action directly in court. If the claimant waives the panel review, the claimant shall serve a copy of the complaint upon the director personally or by registered or certified mail at the time the action is filed in court.

Source

Annotations

The language of the Political Subdivisions Tort Claims Act at subsection (4) of section 13-919 contemplates that a claim under the act must be filed and disposed of or withdrawn prior to presentation of the proposed petition to a medical review panel, or the waiver of a medical review panel, under this section. Keller v. Tavarone, 262 Neb. 2, 628 N.W.2d 222 (2001).

The requirement that a copy of the petition must be served upon the director of the Department of Insurance when medical panel review is waived is merely a notice requirement and neither confers nor denies jurisdiction of the court. The filing of an action in court is affirmative conduct which constitutes waiver of medical panel review. Brewington v. Rickard, 235 Neb. 843, 457 N.W.2d 814 (1990); Ourada v. Cochran, 234 Neb. 63, 449 N.W.2d 211 (1989).

A plaintiff's right to amend the wording of his specimen petition filed under this section in his petition later filed in the district court is the same as plaintiff's right to amend any other petition, so long as the matter submitted to the court is the same matter submitted to the medical review panel. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).

A specimen petition alleging medical malpractice is filed pursuant to this section when the parties fall under the coverage of the Nebraska Hospital-Medical Liability Act. Jacobs v. Goetowski, 221 Neb. 281, 376 N.W.2d 773 (1985).