State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-327_11

28-327.11. Civil action; rebuttable presumption;noneconomic damages; expert witness; physician deemed transacting business;affirmative defense; additional remedies.In a civil action involving section 28-327,the following shall apply:(1) In determiningthe liability of the physician and the validity of the consent of a pregnantwoman, the failure to comply with the requirements of section 28-327 shallcreate a rebuttable presumption that the pregnant woman would not have undergonethe recommended abortion had section 28-327 been complied with by the physician;(2) The absenceof physical injury shall not preclude an award of noneconomic damages includingpain, suffering, inconvenience, mental suffering, emotional distress, psychologicaltrauma, loss of society or companionship, loss of consortium, injury to reputation,or humiliation associated with the abortion;(3) The fact that a physiciandoes not perform elective abortions or has not performed elective abortionsin the past shall not automatically disqualify such physician from being anexpert witness. A licensed obstetrician or family practitioner who regularlyassists pregnant women in resolving medical matters related to pregnancy maybe qualified to testify as an expert on the screening, counseling, management,and treatment of pregnancies;(4) Any physician advertising servicesin this state shall be deemed to be transacting business in this state pursuantto section 25-536 and shall be subject to the provisions of section 28-327;(5) It shallbe an affirmative defense to an allegation of inadequate disclosure underthe requirements of section 28-327 that the defendant omitted the contestedinformation because statistically validated surveys of the general populationof women of reproductive age, conducted within the three years before or afterthe contested abortion, demonstrate that less than five percent of women wouldconsider the contested information to be relevant to an abortion decision;and(6) In addition to the other remedies available under the commonor statutory law of this state, a woman or her survivors shall have a causeof action for reckless endangerment against any person, other than a physicianor pharmacist licensed under the Uniform Credentialing Act, who attempts orcompletes an abortion on the pregnant woman or aids or abets the commissionof a self-induced abortion. Proof of injury shall not be required to recoveran award, including reasonable costs and attorney's fees, for wrongful deathunder this subdivision. SourceLaws 2010, LB594, § 10.Effective Date: July 15, 2010 Cross ReferencesUniform Credentialing Act, see section 38-101.