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John B. Shook

John Shook’s Answers

19 total

  • What action can be taken against doctors for negligence?

    I was diagnosed with fibroids over a year ago and was prescribed a hormone by my doctor. After my annual I tried to get refills and the office did not respond to calls for nearly 3 weeks. I ended up in the ER and have now been informed I need surg...

    John’s Answer

    You may have a viable claim under a "loss of chance" theory. That is, because of the failure to respond in a timely fashion, you lost the chance to forego uterine surgery. Whether the claim is viable depends on whether you can find expert testimony quantifying the loss of chance due to the breach in the standard of care. For more information on Nevada medical malpractice in general, please see my legal guide on this topic. I have attached the link for you below.

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  • My Son was on the job in a mine and was welding as required by his direct supervisor. A forklift operator backed over his leg

    While welding, as required by his job, a forklift operator backed over his leg/foot breaking one of the main leg bones connected to the foot. One week after the accident he was operated on in the hospital and the bone was pinned. One day after the...

    John’s Answer

    In your fact pattern you raise several issues for which your son may or may not ultimately need legal help. First, the injury itself sounds quite serious. A lower extremity fracture can be very debilitating considering the weight bearing nature of the bones located there, however I have seen amazing recoveries with the right care. With regard his early return to light duty, oftentimes physicians will place injured workers back on light duty in effort to 'test' out restrictions i.e. to see if they can tolerate relatively liberal restrictions. If the worker returns with additional complaints the treating physician will then modify to more conservative restrictions. On other occasions, I have seen doctors who kowtow to overzealous employers and press to return workers to the job as quickly as possible, regardless of whether the employee is ready to return. Finally, I have seen physicians who feel they are doing workers a favor by returning them to work so they do not lose full pay while on disability. Whether it is the first, second or third situation, it is vital that your son communicate any concerns he has about the restrictions or return to with his treating physician. If he does not feel comfortable with the doctor after discussing the matter with him or her, he make an alternative choice of physician or chiropractor from the worker's compensation carrier's panel if the choice is made within 90 days after his injury. Also, be aware, that if, subsequently, the treating physician or chiropractor refers your son to a specialist for additional treatment, the treating physician must provide to the injured employee a list that includes the name of each physician or chiropractor with that specialization who is on the panel. After receiving the list, the injured employee shall, at the time the referral is made, select a physician or chiropractor from the list. See, Nev. Rev. Stat. Ann. § 616C.090

    Regarding the preventable nature of the accident and the negligence of the forklift driver in causing it, this claim is likely barred. Under Nevada law, an employer and any co-employees of an injured worker are generally immune from suit for injuries arising from an industrial injury. However, there are exceptions so you may wish to consult an attorney to specifically review your son's case for their applicability.

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  • Is it neglect or abandonment,or something else when guardian does not care for, or ward does not live with guardian?

    My Daughter lives w/couple judge ruled unfit 2x's.

    John’s Answer

    1. “Abuse or neglect of a child” means, except as otherwise provided in subsection
    2:(a) Physical or mental injury of a nonaccidental nature;(b) Sexual abuse or sexual exploitation; or(c) Negligent treatment or maltreatment as set forth in NRS 432B.140,of a child caused or allowed by a person responsible for the welfare of the child under circumstances which indicate that the child's health or welfare is harmed or threatened with harm.2. A child is not abused or neglected, nor is the health or welfare of the child harmed or threatened for the sole reason that:(a) The parent of the child delivers the child to a provider of emergency services pursuant to NRS 432B.630, if the parent complies with the requirements of paragraph (a) of subsection 3 of that section; or(b) The parent or guardian of the child, in good faith, selects and depends upon nonmedical remedial treatment for such child, if such treatment is recognized and permitted under the laws of this State in lieu of medical treatment. This paragraph does not limit the court in ensuring that a child receive a medical examination and treatment pursuant to NRS 62E.280.3. As used in this section, “allow” means to do nothing to prevent or stop the abuse or neglect of a child in circumstances where the person knows or has reason to know that a child is abused or neglected.

    Nev. Rev. Stat. Ann. § 432B.020 (West)

    A child is considered abandoned when a parent (or guardian) “evinces a settled purpose ... to forego all parental custody and relinquish all claims to the child.”12 A parent is presumed to have abandoned a child if that parent provides no support or communication with the child for six months.

    In re Parental Rights as to C.J.M., 118 Nev. 724, 733-34, 58 P.3d 188, 195 (2002)

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  • A State Farm insuree damaged my wife's car. the car is repairable but they want to total the car can you help us ?

    We got an estimate from a certified body shop of about 1379.31 and we called state farm their claims investigator came to our house to do his own estimate and he told us the car was considered a total loss but we know it can be repaired It's a 199...

    John’s Answer

    The quick answer is, if the vehicle is considered a constructive total (drivable, but repair costs to exceed the ACV of vehicle (65% rule) by paying insurer, the owner can "elect" to retain ownership, however the State of NV requires the title to be transferred to "Salvage title" status. The intent there is to prevent or limit the number of previously damaged, unsafe vehicles on the road, and the resale of the vehicle as "used" only, in the normal stream of commerce (retail or wholesale) to buying consumer public, in the event the owner decides to keep & repair the vehicle. (This is the reasoning taught in P&C claims experience handling auto claims)

    The State of NV DMV web site provides very detailed information on the subject of Salvage Vehicle laws and requirements of owners and insurers pertaining to this topic.

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  • My mom fell walking out of Walmart this morning. Is Walmart liable for the medical bills? How should we handle this?

    She fell and was taken by ambulance to the hospital. She broke her ankle. There was some loose rocks/gravel in an area just outside the door. She stepped on it, twisted her ankle and fell. Numerous Walmart employees came out to assist and they...

    John’s Answer

    In Nevada, in the context of landowner liability, “all persons in this society have an obligation to act reasonably and ... should be held to the general duty of reasonable care when another is injured” quoting Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994). Essentially that means that a land owner has a duty to act reasonably. Whether Walmart was negligent is usually a question of fact for the jury that depends on many factors. One primary consideration is whether Walmart knew or should have known that the dangerous condition existed. Another important factor is whether the condition was open and obvious to your mother. If it was then Walmart had no duty to place signs or otherwise warn of the condition as it was a condition that your mother should have seen.

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  • Can Plaintiff's counsel set a date and time for an Early Case Conference without asking first if Defendant can attend that day?

    Plaintiff's counsel filed a Notice at court's clerk stating that I must attend an Early Case Conference at a certain date and time they set up but I was never contacted to agree or disagree on the scheduling of this conference. Is that allowed? ...

    John’s Answer

    Short answer, yes but it is bad form. Here is the relevant rule:

    (b) Meet and Confer Requirements.(1) Attendance at Early Case Conference. Unless the case is in the court annexed arbitration program or short trial program, within 30 days after filing of an answer by the first answering defendant, and thereafter, if requested by a subsequent appearing party, the parties shall meet in person to confer and consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by subdivision (a)(1) of this rule and to develop a discovery plan pursuant to subdivision (b)(2). The attorney for the plaintiff shall designate the time and place of each meeting which must be held in the county where the action was filed, unless the parties agree upon a different location. The attorneys may agree to continue the time for the case conference for an additional period of not more than 90 days. The court, in its discretion and for good cause shown, may also continue the time for the conference. Absent compelling and extraordinary circumstances, neither the court nor the parties may extend the time to a day more than 180 days after an appearance is served by the defendant in question.

    NV ST RCP RULE 16.1

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  • If someone sues you, who must pay the court cost? plantiff/or defendant?

    im bieng sued, who is responsable to pay the court fees? me? or the plantiff?

    John’s Answer

    Generally, costs are awarded to the prevailing party, but their are exceptions. One of the statutes governing costs in Nevada is listed below:

    Costs must be allowed of course to the prevailing party against any adverse party against whom judgment is rendered, in the following cases:
    1. In an action for the recovery of real property or a possessory right thereto.
    2. In an action to recover the possession of personal property, where the value of the property amounts to more than $2,500. The value must be determined by the jury, court or master by whom the action is tried.
    3. In an action for the recovery of money or damages, where the plaintiff seeks to recover more than $2,500.
    4. In a special proceeding, except a special proceeding conducted pursuant to NRS 306.040.
    5. In an action which involves the title or boundaries of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, including the costs accrued in the action if originally commenced in a Justice Court.

    Nev. Rev. Stat. Ann. § 18.020 (West)

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  • How long do I have to pay my ex's attorney's fees??

    My ex was awarded attorneys fees in our trial because I am the bread winner and she stayed home with the kids. I had to pay about $10k in her attorneys fees. Since the trial, we have had a lot of disagreements on a number of issues, including ch...

    John’s Answer

    Absent statute or agreement, attorney's fees are not recoverable. Consumers League of Nevada v. Southwest Gas Corp., 94 Nev. 153, 576 P.2d 737 (1978). That said, there are several statutes that may provide your spouse with grounds for attorney's fees in a divorce action. For example, NRS 125.180 provides for an award of fees when one party is in default of money owed under a decree of divorce. Quite simply, if you fail to pay what the court orders you will probably end up owing much more in the end.

    Korbel v. Korbel, 101 Nev. 140, 141-42, 696 P.2d 993, 994 (1985)

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  • Is there anything my husband can do to get out of his gym contract?

    My husband signed a 2 year contract with a gym and after going for a month they tell him he can no longer go until he pays $600 for breaking a membership with them 7 years ago. Now he is stuck in another 2 year membership and cannot even go. They ...

    John’s Answer

    Sounds like the athletic club is in violation of the existing contract -- if you paid your dues under the current contract then you have satisfied the 'condition precedent' under the contract and are entitled to the 'benefit of your bargain.' Read your contract closely to determine if their conduct is authorized as it appears that the prior contract is past the statute of limitations. Look for the word Novation which is essentially an agreement to replace the old contract with the new contract.

    Also know that if your husband becomes disabled he can break the current contract under Nevada law. The relevant statute follows.

    NRS 598.954

    If a buyer becomes disabled during the term of a contract, and a physician confirms in writing to the dance studio or health club that:

    1. The buyer is not physically able to use the facilities of the studio or club; and

    2. The disability will continue for more than 3 months,

    the buyer is entitled to suspend the contract for the duration of the disability. After he or she recovers, he or she is entitled to an extension of the contract for a period equal to the time of the disability. If he or she is permanently disabled, he or she may cancel the contract and receive a refund pro rata of the amount paid pursuant to it.

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  • Can I sue an attorney for malpractice? He failed to reimburse me for a stipulation order in my favor.

    In 2008, 4 years after the case, I won a court order that authorized reimbursement of escrow fees. It was thousands of dollars, but in the interim I had moved to TX, was hospitalized for years for lung and heart disease. Called the attoney again i...

    John’s Answer

    • Selected as best answer

    The short answer is yes, you can sue the attorney, but you may want to file a complaint with the State Bar of Nevada first. The State Bar's phone number is 702-382-2200.

    What you describe sounds like it may violate multiple ethical rules. For example, Nevada Rule of Professional Conduct 1.4 which requires a lawyer to "Keep the client reasonably informed about the status of the matter" and "Promptly comply with reasonable requests for information." He or she may also be in violation of NRPC Rule 1.15. (Safekeeping Property) :

    (d) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

    If you find the lawyer has embezzeled your funds, in addition to a bar complaint, you should also file a claim with the State Bar of Nevada's Client Security Fund. This is a fund established by lawyers to help compensate the victims of dishonest lawyers who have stolen their client's money or property. You can reach the representative in charge of the CSF through same number given above.

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