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A Nebraska trial court judge has declared unfair and unconstitutional that state’s 25-year-old cap on medical malpractice damages. Douglas County District Court Judge Michael McGill lifted the $1.25 million cap and approved a $5.6 million verdict for a child who sustained permanent brain damage because of a pre-birth reduction of oxygen to the brain. The plaintiffs, Colin Gourley, and his parents, Michael and Lisa Gourley, contended that medical personnel, including Dr. Michelle Knolla and the professional corporation Obstetricians-Gynecologist P.C., had failed to monitor Lisa Gourley’s pregnancy sufficiently, said plaintiffs’ attorney Dan Cullan, of Omaha, Neb.’s Cullan & Cullan. ULTRASOUNDS VITAL? Lisa Gourley, who was carrying twins, should have received several ultrasound examinations in the days before Colin and Connor Gourley’s births in late 1993, said Cullan. The tests detect symptoms of twin-twin transfusion syndrome, wherein there is a restriction of blood flowing to one twin. The pre-birth loss of blood flow, Cullan added, left Colin with cerebral palsy, including moderate retardation. His twin brother was born unharmed. On Sept. 24, 1999, an Omaha jury awarded Colin $5.6 million, including $5 million in economic damages, finding Knolla and the professional corporation liable. The court entered judgment at $1.25 million, however, applying the Nebraska cap. The plaintiff then asked for a hearing on the constitutionality of the cap. Gourley v. Knolla, 944 (Dist. Ct., Douglas Co., Neb.). McGill ruled that the cap, imposed by the state Legislature to contain medical malpractice insurance rates, “is fundamentally unfair to the most severely injured malpractice victims and … there is no legitimate relationship between insurance rates and the cap.” McGill’s decision will be appealed directly to the Nebraska Supreme Court, said defense attorney William M. Lamson Jr., of Omaha’s Lamson, Dugan & Murray.

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