Medical Malpractice:
Medical malpractice occurs when a doctor or hospital or other health care provider fails to meet the accepted standards of care of the medical profession the patient suffers death or injury as a result.
To win a medical malpractice case, the client's lawyer must show precisely what mistake the health care provider made and how this injured or killed the patient.
Examples of Successful Malpractice Cases:
Here is an example of a successful medical malpractice case we won for a client. The client went to his doctor for a physical exam. The exam included a test for hidden blood in the patient's stool (poop). The test was positive. The doctor should have notified the patient to have a colonoscopy or other test to see if the blood in the stool was caused by a tumor. The doctor and his office staff just did nothing. A year later the patient was diagnosed with colon cancer. At the time of diagnosis the cancer had perforated the colon. Very probably, the cancer could have been diagnosed earlier when the patient had blood in his stool. If the cancer had been diagnosed earlier, the patient would have had a greater chance of surviving 5 or more years. The patient's decreased chance of beating his cancer was his injury and the failure of the doctor to tell the patient about the blood in the stool test was the malpractice. This case was settled with a large award to our client.
Other examples of our successful medical malpractice cases include these: A baby was born with some brain damage. The obstetrician missed signs of fetal distress and should have done a C-section. A sponge was left inside the abdomen and caused an infection. A doctor wanted to put air into the intestines to make a better x-ray. Unfortunately, the doctor put in too much air and the intestines burst. (The patient survived, but had to endure emergency surgery resulting in a temporary colostomy, and then another operation to get back to normal.)
Examples of "Malpractice Cases" We Don't Take:
In any delayed diagnosis of cancer case we Google the five year survival rate of the cancer. If the five year survival rate is extremely poor, we figure it's going to be too hard to prove damages from a delay in diagnosis of the cancer. For example, esophageal cancer has a poor five year survival rate and for that reason a delay in its diagnosis is going to be unlikely to significantly increase the chance of death.
Hospitals, unfortunately, are breeding grounds for serious infections by bacteria that are resistant to many or all available antibiotics. BUT, infections arise in good hospitals as well as bad ones. The difference is just that they happen less often in good hospitals. BUT, the difference in infection rate is also partly due to the hospital's patient mix. We feel that unless we can prove a breach of sanitation on the part of the hospital or its employees, hospital infections cases are simply too difficult to prove.
"Res Ipsa Loquitar": When Negligence can be Assumed
From the Nature of the Injury:
There is an uncommon legal exception to having to prove exactly what the health care provider did wrong. For example, very rarely, there is an explosion in the operating room and the patient is burned. This happens because of an unsafe mix of gasses used in anesthesia. In a case like that the law is willing to assume that the injury could not have happened without negligence and therefore the plaintiff does not have to prove exactly what the hospital or doctors did wrong. This legal exception is called by a Latin term, res ipsa loquitar, which means "the thing speaks for itself." However, the res ipsa loquitar exception applies to very few bad medical outcomes. These few area are listed in N.R.S. 41A.100. They are limited to: (a) foreign substance other than medication or prosthetic device left unintentionally within the body of a patient following surger, (b) an explosion or fire originating in a substance used in treatment, (c) an unintended burn caused by heat, radiation or chemicals during medical care, (d) an injury to a part of the body not directly involved in the treatment, and (e) a surgical procedure was performed on the wrong patient or body part.
Many of these situations are great malpractice claims. But these situations do not necessarily result in an automatic win for the patient. Instead these situations create a presumption that the health care providers were negligent. But the health care providers can still offer evidence to prove that it wasn't their fault. For example, if there were a great and unexpected life-threatening emergency such as the patient's heart stopped, or the patient was bleeding profusely, and a doctor or nurse accidentally stepped on and broke the patient's foot while rushing to treat the emergency, it might be argued that the need for rapid action made rushing around necessary even if such rushing around ran the risk of such an accident.
As mentioned above the res ipsa loquitar exception does not apply to a patient who gets an infection in the hospital because even without negligence some patients can get an infection in a hospital. Indeed, the codification of a few exceptions to which res ipsa loquitar applies in N.R.S. 41A.100 was a result of doctor and hospital lobbying to limit the application of the doctrine of res ipsa loquitar.
An Example of a Medical Malpractice Case that Ended Well for the
Patient but Didn't Turn Out to be a Good Malpractice Case:
Here is an example of a medical malpractice case that we ended up settlling for only $40,000 even though it started as a good case. The patient had smoked for decades but finally gave it up. Because of his long smoking history, his Las Vegas doctor x-rayed the patient's chest when he came in for his annual physical. The doctor told the patient he saw a "spot" on his lung in the x-ray and would send the x-ray to a radiologist (a doctor whose specialty is "reading" or interpreting x-rays) to interpret the spot. The radiologist wrote, "[the spot] is probably benign, but comparison should be made to prior x-rays or the patient re-x-rayed in 6 months." (The radiologist thought the spot was probably old scar tissue but if it had recently arisen or if it was growing fast, then it would be suspicious for cancer.) According to the patient and his wife, the doctor later called the patient's wife and told her to tell her husband his spot was nothing to worry about. Two years later the patient had another x-ray and the "spot" was now very big. It was in fact lung cancer. The patient was operated on and came to see us. The cancer doctor we hired as an expert told us that it was now obvious that the original "spot" was the cancer when it was much smaller and the patient's chance of beating the cancer had decreased from 2/3 (when the spot was seen) to 1/3 after it had grown bigger and was operated on. We made a claim against the original doctor. The doctor responded by producing a photocopy of a handwritten note purporting to show that he had called the patient and told him that either an earlier x-ray was needed for comparison or that a new x-ray should be taken in a few months. (This note was not in the medical records the doctor provided us when we asked from them earlier.) We hired an ink expert who gave us his opinion that the original note was written years after that original visit when the "spot" was discovered. Also, the patient was a retired Los Angeles school teacher and had to have an annual physical including chest x-ray. We were able to get from the LA school district the patient's chest x-ray from the year before his visit when the spot was discovered. This chest x-ray proved the "spot" had recently arisen and therefor was not an old scar but suspicious for cancer. This fact cast doubt that the doctor had contacted the patient as he claimed. The case looked good to us.
However, time went by without this case going to trial. (Now medical malpractice cases have priority for a quick trial. At that time it was hard to get a trial date quickly.) Fortunately, for the patient, he remained healthy. By the time we got a trial date, our cancer doctor told us privately that if he were now called to give testimony, he would have to say that the patient's chance of beating the cancer were now quite good because of the time that had gone by without a recurrence. Thus, we felt we could prove malpractice, but now, fortunately for the patient, it looked like he hadn't really been hurt that much by the malpractice.
Is Nevada Law Hostile to Medical Malpractice Claims?
Medical malpractice claims are hard to win in Nevada. As discussed below, the basic one year statute of limitations discourages a lot of claims. In addtion, it can be argued that recent Nevada Supreme Court Decisions, such as Fierle v. Perez, Md., 125 Nev. Adv. Op. 124 (Nov. 19, 2009), http://www.nevadajudiciary.us/images/advanceopinions/125nevadvopno54.pdf show a judicial reasoning that the state legislature wants to make medical malpractice claims difficult to present and that the Nevada Supreme Court should also take that view.
Nevada Statutes Related to Medical Malpractice Claims:
Dealines for Filing Lawsuits:
In recent years the medical profession has successfully lobbied the Nevada legislature for changes in the law to make medical malpractice claims harder to win. N.R.S. 41A.097, http://www.leg.state.nv.us/NRS/NRS-041A.html#NRS041ASec097 , provides that in most cases a lawsuit must be filed in a medical malpractice claim within one year of the malpractice. This is in contrast to most personal injury cases which have a two year statute of limitations. It might seem that the difference between a one year and two year time limit is not that big of a deal as long as everyone knows the rules. But, before one can file a medical malpractice case, one needs to also file an affidavit from a medical expert detailing the deviations from care standards and how these caused injury. N.R.S. 41A.071, http://www.leg.state.nv.us/NRS/NRS-041A.html#NRS041ASec071 As a practical matter, it takes time to collect all relevant medical records, to have the records reviewed by a medical expert and then to get the expert's affidavit. Often clients who have been seriously injured by malpractice, or who have lost a loved one, are not ready to immediately see a lawyer. Different lawyers are more apt to come up with different reviews of medical malpractice cases than car accident cases. I have gotten good results from medical malpractice cases turned down by other lawyers and I would imagine that some medical malpractice cases I turned down went on to success with another lawyer. Lawyers don't like to get a medical malpractice case a few months before the statute of limitations runs because the lawyer knows that if he or she doesn't take the case after spending a month or two reviewing it, the client is probably out of time to see another lawyer. For these reasons the one year statute of limitation for medical malpractice does discourage many good claims. N.R.S. 41A.097 does have some exceptions to the one year deadline. The lawsuit can be filed up to 3 years after the malpractice if the plaintiff through the use of reasonable diligence could not have discovered the malpractice until no more than a year ago. If there is brain damage or birth defect, the child has until the age of 10 to file suit. If the injury is sterility to a child, the child has until two years after discovery of the sterility to bring suit. (This appears to require the child to bring a lawsuit for sterility, through a parent or guardian, while still a child.)
THE BOTTOM LINE IS THAT CLIENTS SHOULD CONTACT AN ATTORNEY ASAP IF THEY THINK THEY HAVE A MEDICAL MALPRACTICE CLAIM. CLIENTS SHOULD AVOID ATTORNEYS WHO FOR ONE REASON OR ANOTHER ARE NOT ABLE TO PROMISE A PROMPT EVALUATION OF THEIR MEDICAL MALPRACTICE CLAIM.
No more Joint Liability:
Another big change in favor of health care providers is that each provider is only liable for his or her share of negligence even if they worked together. For example, if Sunrise Hospital is 5% negligent for a surgery gone wrong and the total claim is $1,000,000; Sunrise would only be liable for 5% of that amount or $50,000. Formerly, it would have been liable for the full amount and then could have sued other defendants if it paid more than 5%. This is a result of the new statute N.R.S. 41A.045 abolishing joint and several liability.
Limitation on Pain and Suffering Awards:
Under N.R.S. 41A.035 http://www.leg.state.nv.us/NRS/NRS-041A.html#NRS041ASec035 the most a plaintiff can collect for medical malpractice for non-economic damages is $350,000. So, let's say Mom goes in for elective surgery and the hospital negligently kills her. The hospital's liability would be limited to $350,000 plus funeral expenses and whatever "economic damages" the family's lawyer could put together. This is a pretty brutal limitation on damages. These limitations are why many of us call "tort reform" "tort deform."
Which Health Care Providers are Covered by Nevada's Medical Practice Statutes?
Although we are simplifying a bit, Providers of Health Care afforded benefits and protections under N.R.S. 41A include doctors, dentists, licensed nurses, dispensing opticians, optometrists, registered physical therapists, podiatric physicians, licensed psychologists, chiropractors, doctors of Oriental medicine, medical lab directors or technicians and licensed hospitals and their employees. N.R.S. 41A.017.
Link to State Bar Public Information Brochure on Medical Malpractice:
We wrote the Nevada State Bar's brochure on Medical Malpractice. Here is the link if you want to read it:
Contact Information:
Reed & Mansfield
6655 W. Sahara Ave., Suite B-200
Las Vegas, Nevada 89146
phone: 702-343-0494