§ 28-327.11 — Civil action; rebuttable presumption; noneconomic damages; expert witness; physician deemed transacting business; affirmative defense; additional remedies

Nebraska § 28-327.11

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

In a civil action involving section 28-327 ,
the following shall apply:
(1) In determining
the liability of the physician and the validity of the consent of a pregnant
woman, the failure to comply with the requirements of section 28-327 shall
create a rebuttable presumption that the pregnant woman would not have undergone
the recommended abortion had section 28-327 been complied with by the physician;
(2) The absence
of physical injury shall not preclude an award of noneconomic damages including
pain, suffering, inconvenience, mental suffering, emotional distress, psychological
trauma, loss of society or companionship, loss of consortium, injury to reputation,
or humiliation associated with the abortion;
(3) The fact that a physician
does not perform elective abortions or has not performed elective abortions
in the past shall not automatically disqualify such physician from being an
expert witness. A licensed obstetrician or family practitioner who regularly
assists pregnant women in resolving medical matters related to pregnancy may
be qualified to testify as an expert on the screening, counseling, management,
and treatment of pregnancies;
(4) Any physician advertising services
in this state shall be deemed to be transacting business in this state pursuant
to section 25-536 and shall be subject to the provisions of section 28-327 ;
(5) It shall
be an affirmative defense to an allegation of inadequate disclosure under
the requirements of section 28-327 that the defendant omitted the contested
information because statistically validated surveys of the general population
of women of reproductive age, conducted within the three years before or after
the contested abortion, demonstrate that less than five percent of women would
consider the contested information to be relevant to an abortion decision;
and
(6) In addition to the other remedies available under the common
or statutory law of this state, a woman or her survivors shall have a cause
of action for reckless endangerment against any person, other than a physician
or pharmacist licensed under the Uniform Credentialing Act, who attempts or
completes an abortion on the pregnant woman or aids or abets the commission
of a self-induced abortion. Proof of injury shall not be required to recover
an award, including reasonable costs and attorney's fees, for wrongful death
under this subdivision.

Legislative History

Source: Laws 2010, LB594, § 10. Cross References: Uniform Credentialing Act, see section 38-101.