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Jacobson v. Shresta

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Tuesday, April 9, 2013

A-11-0438, Michael L. Jacobson, Special Administrator of the Estate of Virginia A. Jacobson, deceased,  and Myron J. Jacobson (Apellants) v. Sherry K. Shrestha & Gaston Cornu-Labat

Sheridan County District Court, Judge Brian Silverman

Attorney for Appellant: Christopher Welsh (Welsh & Welsh, P.C., L.L.O.

Attorney for Appellee: Mark A. Christensen, Tracy A. Oldemeyer, Cristin McGarry Berkhausen (Cline, Williams, Wright, Johnson & Oldfather)

Civil Action: Medical malpractice

Action taken by the trial court: The trial court found that appellees were employees of Gordon Memorial Hospital at the time of the alleged malpractice, rather than independent contractors, and were therefore covered by the Political Subdivision Tort Claims Act. As such, appellants’ claims were barred for failure to comply with the Act.

Assignments of error on appeal: Did the trial court err in failing to weigh the ten factors used to determine whether appellees were employees or independent contractors? Did the trial court err in finding that Exhibits 10 and 13 (the contracts) describe an employer/employee relationship? Did the court err in finding that under the contracts the hospital had the right to control the manner and means of the work and the details of appellees’ duties and that the hospital did exercise such control? Did the court err in finding that the appellees were employees of the hospital? Did appellee Shrestha fail to establish that she was acting within the scope of her employment when treating Virginia Jacobson? Did the trial court err in failing to find that appellees’ election to proceed under the Nebraska Medical Hospital Liability Act waived their defense under the Political Subdivision Tort Claim Act?

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