Neb. County Sued in Gastric Bypass Surgery Medical Malpractice Case

Douglas County might have to pay a hefty price for an employee’s failure to deliver.

The county finds itself as the defendant in a medical malpractice lawsuit because, contrary to a civil process server’s contention, the original defendant was never served papers.

Eugenia Kudym of Omaha is asking for $450,000 in damages, the amount her attorney said she could have recovered from her physician after she suffered complications from gastric bypass surgery in 2003.

A judge last year ruled that a server from the sheriff’s department did not properly serve Kudym’s physician. Meanwhile, the statute of limitations for malpractice lapsed, eliminating the physician from possibly having to pay damages.

For the county to be held liable, Blakeman must prove malpractice occurred and that the county’s error cost Kudym the opportunity to seek damages from the physician.

“The more difficult side is proving the medical malpractice claim,” Blakeman said. “The fact the judge has decided (the county) didn’t successfully serve the doctor sits in our favor. In essence, it’s been determined that the county didn’t perform.”

Kudym, 47, underwent gastric bypass surgery in May 2003 at the Nebraska Medical Center. She later suffered complications, including the inability to keep food down. She became malnourished and couldn’t walk, Blakeman said.

Blakeman said Kudym’s physician told her that her suffering would pass, but relief didn’t come until weeks later when a pharmacist friend recommended an enzyme that offsets complications from gastric bypass.

Kudym began feeling better almost immediately after taking the enzyme with her food, Blakeman said.

“The complications she experienced after the surgery should have been diagnosed and could have been easily dealt with by the doctor and should have been recognized by the doctor,” Blakeman said. “He, in essence, put her off.”

Blakeman filed a lawsuit in Douglas County against the physician in July 2005, less than two years removed from Kudym’s complications, but withheld having papers served until he could get an expert’s opinion on whether the malpractice claim would hold up in court.

In Nebraska, an attorney has six months to have the defendant served with papers after filing a lawsuit. Blakeman asked that the physician be served in January 2006, just days before the six-month time limit expired.

Blakeman said he received noticed that the papers were served.

“At that point, I’m figuring my client is protected,” Blakeman said.

But the physician claimed in a court hearing that he was never served. Records showed that the physician was out of his office on the day the server claimed to have given him the papers, and Judge Patricia Lamberty ruled in his favor.

By then, it was too late for Blakeman to have the lawsuit served again.

Blakeman filed the lawsuit against Douglas County last week.

The physician may have to testify in the case against the county.

“He has nothing to lose financially,” Blakeman said, “but he might want to defend his practice.”