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The Law of Medical Malpractice in Nevada: A Survey of Basic Considerations

 

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This article provides an overview of Nevada medical malpractice law. By means of a 2004 ballot initiative, voters in the Silver State approved far-reaching changes to its malpractice law, including shortening the statute of limitations, capping the amount of pain-and-suffering damages, and imposing restrictions on contingent fee agreements. Nevada also requires a plaintiff filing a malpractice complaint to include an affidavit from a medical expert supporting the claim.

 

Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, this article will describe Nevada law in plain language with minimal use of legal jargon, so that the material is accessible to nonlawyers as well as legal practitioners.

 

Section I below summarizes broad principles and concepts. Sections II through XIII examine some of the mechanics of filing and litigating a medical malpractice lawsuit in Nevada.

 

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts

II. Filing Deadlines for Medical Malpractice Claims

III. Medical Expert Affidavit and Other Requirements

IV. Immunities and Limitations on Liability

V. Medical Expert Witnesses

VI. Comparative Negligence / Proportionate Liability

VII. Limitations on Damages

VIII. Limitations on Attorney Fees

IX. Patient Compensation Funds

X. Apologies and Sympathetic Gestures

XI. Communications with Treating Physicians

XII. Collateral Source Payments

XIII. Loss-of-Chance Doctrine

XIV. Disclaimer

 

 

I. Overview of Basic Principles and Concepts

 

Nevada refers to medical malpractice claims as claims for “professional negligence,” which is defined to mean the failure to use “the reasonable care, skill or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” Nev. Rev. Stat. § 41A.015.

 

The state’s professional negligence law applies to a broad range of healthcare providers that not only includes physicians, dentists, and nurses but also physical therapists, opticians, optometrists, chiropractors, medical laboratory technicians, dietitians and others. Nev. Rev. Stat. § 41A.017; see generally Nev. Rev. Stat. § 41A.003 − 41A.120.

 

II. Filing Deadlines for Medical Malpractice Claims

 

Basic Time Limits

 

Under Nevada law, an action against a healthcare provider must be filed within one year of the malpractice’s reasonable discovery and three years of the injury date, whichever occurs first. Nev. Rev. Stat. § 41A.097(2).

 

In other words, the state uses both a one-year clock and a three-year clock, and the plaintiff must file the lawsuit before either expires.

 

The one-year clock is set in motion at the time when the patient discovers, or reasonably should have discovered, the possibility of malpractice. The plaintiff must file any lawsuit within one year of that point. See Golden v. Forage, No. 72163, 2017 WL 4711619 (Nev. Ct. App. Oct. 13, 2017).

 

The three-year clock begins ticking once the patient has been harmed, regardless of whether he or she had any reason to suspect malpractice. Libby v. Eighth Judicial Dist. Ct., 325 P.3d 1276 (Nev. 2014).

 

To emphasize the main point, the plaintiff’s lawsuit is timely only if it is filed within both of these time periods.

 

Extension in Cases of Concealment

 

There are narrow exceptions to these rules. In particular, both the one-year and the three-year clocks are paused (or in legal terminology “tolled”) if the healthcare provider has “concealed any act, error or omission.” Nev. Rev. Stat. § 41A.097(3).

 

The general idea beyond the concealment exception is that if a healthcare provider deliberately hides the malpractice from the patient, it is only fair to give the patient extra time to bring the lawsuit.

 

But the clock is paused for concealment only when a healthcare provider commits an intentional act that hinders a reasonably diligent plaintiff from filing suit within the prescribed time periods. Winn v. Sunrise Hosp. & Medical Center, 277 P.3d 458 (Nev. 2012).

 

Different Rules for Minors

 

Special timeliness rules apply to malpractice claims involving children. Specifically, if the lawsuit alleges brain damage or birth defect, the time limit for bringing suit is extended until the child reaches 10 years of age. And if the claim alleges sterility, there is an extension until two years after the child discovers the injury.

 

In most other situations, however, an injured child’s parent or guardian must file any professional negligence lawsuit on behalf of the child with the one-year and three-year time limits described above. Failure to do so generally will forfeit the child’s malpractice claim. Nev. Rev. Stat. § 41A.097(4).

 

Related Provision

 

Although not a statute of limitations, a separate Nevada statute is worth mentioning here because it imposes a limit on how long it is allowed to take to bring the case to trial. The statute says that a professional negligence lawsuit must be dismissed if, after three years, the case still has not been brought to trial, “unless good cause is shown for the delay.” Nev. Rev. Stat. § 41A.061.

 

 

III. Medical Expert Affidavit and Other Requirements

 

Medical Expert Affidavit Requirement

 

One particularly important requirement of Nevada medical malpractice law is that a plaintiff ordinarily must submit a medical expert affidavit when initiating the lawsuit. Failure to do so is generally fatal to the plaintiff’s case. The basic purpose of the affidavit requirement is to weed out factually unsupported claims.

 

Specifically, the affidavit must be obtained from a medical expert who practices, or has practiced, in an area that is “substantially similar” to the type of practice involved in the malpractice claim. The affidavit must: (1) support the complaint’s allegations; (2) identify by name, or describe by conduct, each healthcare provider who is alleged to be negligent; and (3) provide a description of “a specific act or acts of alleged negligence separately as to each defendant in simple, concise and direct terms.” Nev. Rev. Stat. § 41A.071.

 

If a lawsuit is initiated without such an affidavit, the judge normally must dismiss the case. However, the dismissal does not prevent the suit from being re-filed as long as the statute of limitations has not yet expired (i.e., the dismissal is “without prejudice,” in legal terminology). Id.

 

There are rare instances in which no medical expert affidavit is necessary. Specifically, no affidavit is needed if an average juror would have no trouble understanding the claim without the help of a medical expert because the situation involves: (a) a sponge or other foreign object left within a patient’s body during surgery; (b) an explosion or fire in the course of treatment; (c) an unintended burn injury during treatment; (d) an injury to a body part not involved in the treatment; or (e) a surgical procedure performed on the wrong patient or the wrong organ, limb or part of a patient’s body. In all of these situations, a layperson can recognize negligence without the aid of an expert, and so no medical expert affidavit is required. Nev. Rev. Stat. § 41A.100; see also Szydel v. Markman, 117 P.3d 200 (Nev. 2005).

 

Further, a medical expert affidavit is required only if the claim involves professional negligence, as opposed to other types of negligence. For instance, no affidavit is needed if the case concerns a hospital’s provision of nonmedical services. A claim is grounded in professional negligence only where the underlying facts “involve medical diagnosis, treatment, or judgment.” Szymborski v. Spring Mountain Treatment Center, 403 P.3d 1280 (Nev. 2017).

 

Defendants will sometime challenge the adequacy of a healthcare affidavit, with the objective of convincing a court to dismiss the plaintiff’s case. A defendant may argue, for instance, that the healthcare provider who signed the affidavit does not practice in an area that is “substantially similar” to the defendant’s area of practice, as the affidavit statute requires. Nev. Rev. Stat. § 41A.071(2); Borger v. Eighth Judicial Dist. Court, 102 P.3d 600 (Nev. 2004).

 

Mandatory Settlement Conferences

 

Under a separate Nevada provision, a settlement conference must be held to attempt to resolve all professional negligence cases before trial. All the parties to the lawsuit, their insurers, and their lawyers must participate in the settlement negotiations, which are presided over by a judge (a different judge from the one assigned to the case). Failure to participate in good faith in the settlement conference is grounds for sanctions, including monetary sanctions against a party or the party’s attorney. The sanctions provision is to be construed liberally, the statute says. Nev. Rev. Stat. § 41A.081; see also § 41A.085.

 

 

IV. Immunities and Limitations on Liability

 

Emergency Medical Care

 

Nevada has taken steps to discourage malpractice suits against physicians, nurses and others who provide emergency medical care, recognizing that emergencies allow less time to make informed treatment decisions.

 

Specifically, a physician who renders care for a traumatic injury to a patient that enters a hospital through its emergency room or trauma center generally may not be held liable for more than $50,000 in monetary damages. Nev. Rev. Stat. § 41.503; Brice v. Second Judicial Dist. Court, No. 56579, 2011 WL 4390048 (Nev. Sept. 20, 2011).

 

In addition, Nevada law shields from liability a physician, nurse, emergency medical attendant or other healthcare provider who takes action at the scene of an emergency or while transporting an injured person from the scene of an emergency, with certain exceptions. Nev. Rev. Stat. § 41.504. A separate provision grants some malpractice immunity for providing emergency obstetrical care. Nev. Rev. Stat. § 41.506.

 

Separate Nevada provisions protect healthcare providers who render emergency care on a volunteer basis. See, e.g., Nev. Rev. Stat. §§ 41.500, 41.507.

 

Government Defendants

 

Because governments ordinarily cannot be sued without their consent, issues of “immunity” can arise when patients bring malpractice lawsuits against publicly owned medical facilities, such as state university hospitals, or publicly employed healthcare professionals.

 

In Martinez v. Maruszczak, the Nevada Supreme Court addressed whether state-employed physicians have immunity from malpractice claims. The court’s ruling was complex, which is also generally true of  immunity doctrines: “State-employed physicians enjoy immunity from medical malpractice liability only when their allegedly negligent acts involve elements of judgment or choice, and the judgment or choice made is of the kind that the discretionary-function exception was designed to shield, that is, a judgment or choice involving social, economic, or political policy considerations. If those two requisites for discretionary-function immunity are not satisfied, state-employed medical professionals are liable for malpractice to the extent of the statutory cap that applies to damages awards in tort actions against state employees.” 168 P.3d 720 (Nev. 2007); see also Nev. Rev. Stat. § 41.035.

 

 

V. Medical Expert Witnesses

 

Expert Testimony Necessary

 

Under Nevada law, it is usually mandatory in professional negligence cases to present expert medical testimony showing that the healthcare provider deviated from the accepted standard of care. A plaintiff also can rely on materials such as “recognized medical texts or treatises” to demonstrate that the health care was substandard. Nev. Rev. Stat. § 41A.100.

 

Certain Exceptions

 

In narrow situations, a healthcare provider’s error is so obvious on its face that a plaintiff is not required to rely on medical expert testimony or materials such as medical treatises. Specifically, no expert evidence is needed if the claim involves: (a) a sponge or other foreign object left within a patient’s body during surgery; (b) an explosion or fire in the course of treatment; (c) an unintended burn injury during treatment; (d) an injury to a body part not involved in the treatment; or (e) a surgical procedure performed on the wrong patient or the wrong organ, limb or part of a patient’s body. Nev. Rev. Stat. § 41A.100(1).

 

In these five situations, which are specifically listed in the statute, Nevada even goes so far as to create a “rebuttable presumption” that the patient’s injury was caused by negligence. In other words, the law will presume negligence in these circumstances unless the defendant demonstrates otherwise. Id.

 

But the rebuttable presumption disappears if a plaintiff in such a case chooses to submit a medical expert affidavit or to designate an expert witness. Nev. Rev. Stat. § 41A.100(3).

 

Who Qualifies as Medical Expert?

 

Under Nevada law, a person is not allowed to testify as an expert witness regarding medical malpractice unless he or she practices or has practiced in an area that is “substantially similar” to the type of practice involved in the case. Nev. Rev. Stat. § 41A.100(2); see also Stacy v. Long, No. 57442, 2012 WL 170133 (Nev. Jan. 17, 2012).

 

In addition, a medical expert witness must possess “special knowledge, skill, experience, training or education,” in order to be permitted to offer an expert opinion in the case. Nev. Rev. Stat. § 50.275.

 

 

VI. Comparative Negligence / Proportionate Liability

 

Sometimes a healthcare provider will try to pin the blame for a poor treatment outcome on the patient, accusing him or her of ignoring post-surgery instructions or answering health history questions inaccurately, for instance. In cases where a patient does bear some fault for causing his or her own medical injury, Nevada applies the doctrine of “comparative negligence.” Under his doctrine, a careless or negligent patient’s lawsuit is not barred completely, but any monetary damages obtained are reduced.

 

For example, if the plaintiff was 25 percent at fault for the bad treatment outcome and the physician 75 percent, the plaintiff can recover monetary damages from the physician but the amount will be reduced by 25 percent. But if the plaintiff’s fault was greater than the defendant’s, the plaintiff recovers nothing. Nev. Rev. Stat. § 41.141; see also Marty v. Malin, No. 57133, 2012 WL 3139862 (Nev. July 31, 2012).

 

On a different issue, if there are multiple defendants, who pays what share of the monetary damages? Under Nevada law, each defendant generally is liable for damages only in proportion to that defendant’s percentage of fault. For instance, if a particular defendant bore 30 percent of the fault, that defendant pays 30 percent of the monetary damages. Nev. Rev. Stat. § 41A.045; see also Nev. Rev. Stat. § 41.141(4); Piroozi v. Eighth Judicial Dist. Ct., 363 P.3d 1168 (Nev. 2015).

 

 

VII. Limitations on Damages

 

Money claimed by a plaintiff as compensation for a loss is referred to as monetary “damages.” In Nevada some types of damages are limited or capped.

 

Economic Damages

 

There is no cap on damages for losses such as the cost of medical treatment, loss of earnings, and loss of earning capacity.

 

Noneconomic Damages

 

For more subjective types of losses such as pain and suffering, there is a $350,000 cap, regardless of the number of plaintiffs, defendants, or theories upon which liability may be based. Nev. Rev. Stat. § 41A.035; see also Nev. Rev. Stat. § 41A.011.

 

That is to say, if a jury in a malpractice case awards more than $350,000 in pain-and-suffering damages, the court will reduce the amount to $350,000 so that the statutory cap is not exceeded. See Zhang v. Barnes, No. 67219, 2016 WL 4926325 (Nev. Sept. 12, 2016).

 

Nevada voters adopted this upper limit on damages by ballot initiative in 2004. Proponents of the initiative petition argued that a damages cap was necessary to prevent doctors from leaving the state. The Nevada Supreme Court has upheld the constitutionality of the damages cap. Tam v. Eighth Judicial Dist. Ct., 358 P.3d 234 (Nev. 2015).

 

Punitive Damages

 

Punitive damages are used to punish an especially badly behaving defendant. Because the purpose is to punish, the amount is allowed to exceed the plaintiff’s proven loss. To obtain punitive damages, the plaintiff must prove by clear and convincing evidence that the defendant acted with “oppression, fraud or malice.”

 

Nevada caps punitive damages at a level that is tied to the amount of compensatory damages awarded. If the plaintiff receives less than $100,000 in compensatory damages, punitive damages cannot exceed $300,000. If the compensatory damages are $100,000 or more, punitive damages are capped at three times the amount of compensatory damages. Nev. Rev. Stat. § 42.005.

 

 

VIII. Limitations on Attorney Fees

 

As part of the 2004 ballot initiative, Nevada voters approved limits to contingent attorney fees in medical malpractice cases.

 

A contingent fee is one in which a lawyer receives a specified percentage of the recovery (the amount awarded to the client) if the client wins but does not get paid at all if the client loses.

 

Specifically, a lawyer is not allowed to collect a contingent fee in excess of: (a) 40 percent of the first $50,000 recovered; (b) 33 1/3 percent of the next $50,000 recovered; (c) 25 percent of the next $500,000 recovered; and (d) 15 percent of the amount of recovery that exceeds $600,000. Nev. Rev. Stat. § 7.095.

 

These limits on contingent fees apply regardless of whether the case is resolved by settlement, arbitration decision, or court judgment. Id.

 

 

IX. Patient Compensation Funds

 

While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, Nevada has not done so.

 

 

X. Apologies and Sympathetic Gestures

 

If a healthcare provider apologizes for a poor treatment outcome or expresses sympathy, can this behavior be used in court as evidence of negligence? While some states have enacted statutes addressing this question, Nevada has not.

 

 

XI. Communications with Treating Physicians

 

May defense counsel communicate informally with a patient’s treating physicians without the patient’s consent?

 

The answer in Nevada is no. If the defense wishes to question the patient’s treating physicians before trial, defense counsel must follow proper “discovery” procedures and interview the physicians in an official manner with the plaintiff’s lawyer present. Informal communications (so-called “ex parte contacts”) with the physician violate patient-physician confidentiality and are not allowed unless the patient consents to them. Leavitt v. Siems, 330 P.3d 1 (Nev. 2014).

 

It also should be noted that patient confidentiality is protected by the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which may restrict what information physicians can disclose informally as well. See 45 C.F.R. § 164.512(e).

 

 

XII. Collateral Source Payments

 

Under a Nevada statute, a defendant in a malpractice case has a right to tell the jury about the amount of benefit payments the plaintiff received on account of the injuries from third parties such as Social Security, Medicaid, or a private insurance company, so that the jury may consider this information in awarding damages. Nev. Rev. Stat. § 42.021.

 

In addition, third parties face restrictions on suing a malpractice defendant to recover the expenses they paid on behalf of the malpractice victim. Id.

 

Some questions have been raised about the constitutionality of these rules. See Tam v. Eighth Judicial Dist. Ct., 358 P.3d 234, 237 n.3 (Nev. 2015); Goldenberg v. Woodard, Nos. 57232, 58151, 2014 WL 2882560, at *6 n.3 (Nev. June 20, 2014).

 

 

XIII. Loss-of-Chance Doctrine

 

Unlike many states, Nevada recognizes “loss of chance” claims.

 

To understand the nature of such claims, consider Perez v. Las Vegas Medical Center, where a man died of a massive brain hemorrhage, due possibly to an aneurism, after having some seizures. Moving for summary judgment in an ensuing malpractice wrongful death suit, the defendant healthcare providers argued that there was no proof their alleged negligence “caused” the man’s death, because even with proper medical care his chances of surviving the brain hemorrhage would have been less than 50 percent, and thus there was no legally sufficient evidence that they had “caused” his death.

 

Rejecting the defendants’ argument, the Nevada Supreme Court held for the first time that malpractice claims are available even if the patient had less than a 50 percent chance of survival from the original ailment. Otherwise, the court reasoned, a physician’s negligent mistake could reduce a patient’s odds of survival from a medical condition by as much as 40 percent or more, and yet the physician would “remain unanswerable” in a court of law, which would be unjust. 805 P.2d 589 (Nev. 1991); see also Rea v. Sunrise Hospital and Medical Center, 2016 WL 6072428 (Nev. Ct. App. Oct. 11, 2016).

 

 

XIV. Disclaimer

 

This website has been prepared by Medical Malpractice Help for informational purposes only and does not constitute legal advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

 

The information contained in this website is provided only as general information, which may or may not reflect the most current legal developments. This website occasionally contains links to other web pages. The inclusion of such links, however, does not constitute referrals or endorsements of the linked entities. Newsome Melton specifically disclaims any responsibility for positions taken by users in their individual cases or for any misunderstanding on the part of users of this website or any linked websites.

 

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