A primer on Medical Malpractice laws in Nevada
According to a recent study by the United States Inspector General, hospital employees recognize and report only one out of seven errors, accidents and other events that harm patients while they are hospitalized. Another report by the Yale Journal of Health Policy, Law and Ethics, put the number of avoidable deaths in hospitals alone at over 195,000 per year, not including obstetric patients. In contrast, only 9,758 medical malpractice payments were made on behalf of doctors in 2011. Why is there such a discrepancy between the number of medical errors causing harm and the number of medical malpractice payouts in any given year? Part of the answer is likely due to complex laws designed by the medical malpractice insurance industry and their attorneys to delay, deny and defend many well-founded medical negligence claims. With this in mind, here are a few things to consider before bringing a medical malpractice action.
Juries trust doctors and nurses. According to a recent Gallup poll, nurses, pharmacists and doctors make up three of the top five most trusted professions in the United States. Oftentimes this trust carries over to jury deliberations where, on close cases, jurors will give defendant doctors and nurses the benefit of the doubt.
Stuff happens. A bad outcome does not necessarily mean a medical error was committed. To prove a case for medical negligence, an injured person must show that a medical provider breached the standard of care, that is, acted imprudently or unreasonably. For example, most hospital acquired infections are not proper malpractice claims because, despite rigorous infection control procedures, infections can and do still occur. However, the failure to promptly identify and treat that same infection may be grounds for a viable medical malpractice claim.
Defense Strategy: Baffle and confuse. One way medical malpractice defense attorneys win cases is by following W.C. Fields ancient advice: “If you can't dazzle them with brilliance, baffle them with (bologna)” Unless you can concisely and accurately state how the doctor or hospital erred the jury will not be able to follow your theory of the case and you will likely lose. In short, being able to hone a case down to its essence is critical to explaining it to others, including attorneys.
Get your records together. There is an old saying in medicine that “if it’s not in the chart, it did not happen.” While this may a bit of an exaggeration, it does illustrate the importance of good charting to the medical care process. Medical charting is the foundation for most medical malpractice cases and it is important that you get a complete set of your records as soon as you suspect a medical error has been committed.
Identify who said what to whom and when. While the medical records contain most of the most important information, trials are about people. Oftentimes explaining who people are and why they did what they did provides the story behind the story that pushes a jury over the edge to finding in your favor.
Act now. Time limits to bring a medical malpractice action are tighter than most other types of cases. In Nevada, except as described in more detail below, medical malpractice claims must be started not more than three years after the date of injury or one year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first. What this means is that, in general, a lawsuit must be filed within one year of when a patient knows or should know that he or she has suffered a legal injury, i.e. they are aware of or should be aware ofall essential elements(duty, breach, causation, damage) of the malpractice cause of action. This means a patient must be aware of both the fact of damage suffered and the realization that the cause was the health care provider's negligence. If the patient meets these requirements the one year statute applies else the three year statute would apply. An exception to this rule applies when a provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to the provider of health care. Be aware, different deadlines may apply for injuries to children.
Severe and permanent injuries are the norm. Because medical negligence cases are expensive to bring and difficult to win, injuries must be severe and permanent to justify the time and expense required to properly prosecute them. This, coupled with caps on recoveries for non-economic loses, makes it necessary for attorneys to very rigorously screen medical negligence claims and avoid frivolous or trivial claims.
Exclusions and limitations apply. In Nevada, like many other states, insurance companies have been successful in obtaining very significant requirements, limitations and exclusions on recoveries in medical malpractice actions, including:
- Noneconomic damage caps. Noneconomic damages are limited to $350,000 per action.
- Punitive damage caps. Punitive damages are allowed only in cases where fraud, malice, or oppression are proved to a clear and convincing standard and are limited to $300,000 or triple the amount of compensation damages.
- Several Liability. Defendants are liable for economic and nonecomonic damages severally only, and not jointly, for that portion of the judgment which represent the percentage of negligence attributable to the defendant. So, for example, if one defendant caused 1% of the harm to the plaintiff, and another uncollectable defendant caused the other 99%, the first defendant would only be required to pay 1% of any judgment.
- Ostensible Agency. Most physicians who treat patients at hospitals are not employees of the hospital. However, a hospital may sometimes be held responsible for the actions of a non-employee doctor under the theory of ostensible agency. This theory applies when a patient goes to the hospital and the hospital selects the doctor to treat the patient, such that it is reasonable for the patient to assume the doctor is an agent of the hospital.
- Expert Affidavit requirements. An expert affidavit must attached to the original complaint by someone in a similar field to the defendant or the case will be dismissed.
- Limits on Attorney’s Fees. Limits on attorney’s fees based on a sliding scale of awarded damages.
- Comparative Negligence. Nevada follows a doctrine of modified comparative negligence under which a claimant's action is barred if his negligence is greater than the combined negligence of all the defendants. If not, the claimant's recovery is reduced in proportionally according to his degree of negligence.
- Expert Testimony requirements. Except in the case of a few statutorily defined situations, medical malpractice claimants in Nevada are required to present "expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred" to demonstrate a deviation from the standard of care.
- Abrogation of Collateral Source. Normally, evidence of medical insurance is excluded from evidence through the “collateral source rule.” This rule was eliminated for medical negligence cases through a 2004 voter initiative. The collateral source rule is an equitable rule specifically designed to ensure that the victim, and not the negligent defendant, benefits from any "windfall" resulting from a difference between the value of the harm caused and the amount actually paid to remedy it. Normally, if a victim can remedy her harm at a "bargain" rate -- by purchasing health insurance, for example -- the "windfall" represented by the difference belongs to the victim, not to the defendant. Because this rule is reversed in Nevada, negligent medical providers get the benefit of a victim’s health insurance coverage, not the victim or her family.
- Trial deadlines. Absent good cause, the Court may dismiss a medical malpractice action that is not brought to trial within two years after the date on which the action is filed, if the action is filed on or after October 1, 2005. This requirement is generally waived by the district court. In Clark County, Nevada the Courts have adopted the practice of bi-annual “sweeps” for medical malpractice actions to facilitate and coordinate trial settings. However, even with these statutory deadlines and procedures, trials are routinely delayed several years due to court congestion and calendar conflicts among defense attorneys’ schedules.
- Mandatory Settlement Conferences. All medical malpractice cases in Nevada must have a settlement conference conducted by a district court judge prior to trial. This conference must be attended by all parties, attorneys and insurance representatives