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: