In 1993, Lisa Gourley was pregnant with twins, Colin and Connor. Lisa’s doctor mistakenly believed Lisa had two placentas. Having only one placenta, Lisa should have been treated as a high-risk pregnancy. Three days before her due date, noticing a decrease in the movement of the babies. Lisa expressed concern to her doctor, who dismissed her apprehension and neglected to do any testing or refer her to a specialist. Two days later, still very concerned, Lisa called the doctor’s office. When she arrived there in the afternoon, another doctor in the office ordered an ultrasound, finding the babies in severe distress and needing immediate delivery. However, a break-down in communication among the doctors delayed her the emergency C-section for almost two hours.
When born, the babies, not breathing, were rushed to intensive care, where the doctors determined Colin had suffered severe brain damage. Continuing to deteriorate, he nearly died. Connor survived without injury.
Colin struggles in every aspect of his life. He has cerebral palsy and significant cognitive delays affecting his ability to communicate. He could not speak until he was five, and his vision is permanently impaired. His irregular brain waves and the time spent in a wheelchair have affected his bone growth. He has undergone many painful orthopedic surgeries. In addition to his physical disabilities, he suffers from many emotional and behavioral problems.
In 1999, a jury found the OB/GYN and her group negligent, awarding Colin $5 million in economic damages and $625,000 in non-economic damages. Because Nebraska law imposes an overall cap on medical malpractice compensation for injured patients like Colin, the courts eventually reduced the verdict to $1.25 million, greatly reducing compensation for Colin’s medical care and essentially eliminating the non-economic damages to which the jury believed he was entitled.
The Gourleys challenged the constitutionality of the cap, winning at the trial court level. After the defendants appealed, the Nebraska Supreme Court heard the case in February, 2002, a year later overturning the lower court decision, upholding the cap and limiting Colin’s compensation to $1.25 million.
Required to put the money into a Special Needs Trust, the Gourleys cannot spend it, unless absolutely necessary, so Colin can remain eligible for taxpayer-funded Medicaid. After paying off outstanding liens for bills not covered by Medicaid and the Nebraska Medically Handicap Children's program, the money remains subject to subrogation by insurance companies and Medicaid having paid for some of Colin’s care.
Lisa had to quit her job to care for Colin 24 hours per day to save on costs of care. The Gourleys had to sell the house they had just built and move in with Lisa's in-laws.
Though things appear better now, possibly because they have somewhat adapted to the needs of their very special child, they still face incredible challenges. They continuously must fight Medicaid over Colin’s care, advocate for services at Colin's school, and provide special transportation and constant supervision. The emotional and financial stress on the Gourleys---Lisa, husband Mike and their other three children---is enormous. Lisa says,
As Colin slowly begins to understand just how different he is from his identical twin brother, it becomes harder and harder as parents to see the gap between the boys get bigger and bigger. As much as I try not to compare the boys, it absolutely breaks my heart to see all he has been deprived of and the life experiences he will never have. He has been denied the American dream of going to college, starting a career and becoming successful. He will never get married, have children, and become a grandfather. He will always be disabled and be totally dependent on someone for all his needs. To cap an injured victim’s compensation is wrong and in Colin’s case, to cap someone’s ability to recover even his medical expenses is absolutely tragic.
It is hard to imagine Colin’s life getting any worse but it has. Not only has Colin suffered catastrophic injuries; his only source of financial security has been stolen. That’s because Nebraska has one of the most restrictive “caps” on damages in the country.