Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
In Nevada, non-economic (pain and suffering) damages in medical malpractice cases are capped at $350,000, without regard for the severity of the patient's injury.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. Nevada instead applies a rule of several liability, pursuant to which each defendant is proportionately liable for damages according to their percentage of fault for the plainiff's injury.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Nevada has eliminated the collateral source rule for medical malpractice and workers compensation cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. The statute of limitations for medical malpractice cases in Nevada requires that a claim be filed within three years from the date of injury, or from the date the injury was or reasonably should have been discovered. The statute of limitations applies to minors, subject to exceptions for brain damage, birth defects, or sterility. For brain damage and birth defects, the statute of limitations is extended until the child reaches the age of ten. For sterility, the statute of limitations is extended until two years after the child discovers the injury.
Additional rules affecting malpractice litigation in the State of Nevada include:
Limits on Attorney Fees
Under Nevada law, attorney fees are limited to not more than forty percent of the first $50,000 recovered for the plaintiff, one third of the next $50,000, twenty-five percent of the next $500,000, and fifteen percent of any amount in excess of $600,000.
Mandatory Settlement Conference
Nevada requires that all parties to an action alleging medical malpractice or dental malpractice attend and participate in a settlement conference before a District Court judge, nother than the judge assigned to preside over the action, to determine whether the action may be settled by the parties prior to trial.
Affidavit of Merit Rules
An affidavit of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. When a medical malpractice case is filed in Nevada, the complaint must be accompanied by an affidavit that supports the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice. Failure to file the affidavit will result in dismissal of the case without prejudice.
Medical Expert Witness Restrictions
In Nevada, expert medical testimony may only be given by a provider of medical care who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged negligence.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline for your case.