Recent Blog Posts in 2006

Here's an initial observation. I received an email today from a national litigation support service informing me that for a price I could discover a 5-year list of all prescription information with respect to a given client or defendant.

Of course, one assumes that releases are necessary. And any such information could have important ramifications on the manner in which a case was handled.

But it's still worth thinking about how your pharmaceutical history is becoming increasingly electronic and widely discoverable.

A recent example: I had a small, simple auto accident case in which my client was the passenger in a vehcle that was hit. Clear liability any way you look at it. My client broke bones. Her only medical claim related to those broken bones.

Nevertheless, opposing counsel felt the need to make her entire medical history (my client was in her 40's) part of an inquiry. That's routine enough for defense counsel, but what wasn't so routine was that opposing counsel obtained 10 years of my client's medical records and then sent them to her client/insured.

Now why does her client, the defendant driver in an ordinary auto accident, need a stack of my client's medical records?

More thoughts on this issue next blog. 

This blog we examine the definitions within the definition.

For instance, under Nevada law, the term "client" is defined as follows:

49.045. "Client" defined

"Client" means a person, including a public officer,
corporation, association or other organization or entity, either public
or private, who is rendered professional legal services by a lawyer,
or who consults a lawyer with a view to obtaining professional legal
services from him.

Interestingly, there is always an argument that you become a "client" of an attorney, at least for the purpose of obtaining privilege, as soon as you talk to an attorney about your case and regardless of whether you retain him or pay him.

Let's look at a few other definitions:

49.055. "Confidential" defined

A communication is "confidential" if it is not intended to
be disclosed to third persons other than those to whom disclosure
is in furtherance of the rendition of professional legal services to
the client or those reasonably necessary for the transmission of the
communication.

49.065. "Lawyer" defined

"Lawyer" means a person authorized, or reasonably believed
by the client to be authorized, to practice law in any state or nation.

*Note here that the lawyer may not even be licensed to practice in Nevada, but if you think he is, privilege may apply.

49.075. "Representative of the client" defined

"Representative of the client" means a person having
authority to obtain professional legal services, or to act on advice
rendered pursuant thereto, on behalf of the client.

49.085. "Representative of the lawyer" defined

"Representative of the lawyer" means a person employed by
the lawyer to assist in the rendition of professional legal services.

Next blog I'll set out the legal list of who may claim this privilege and what exceptions exist.

The general scope of this privilege is set out in NRS 49.095 and provides:

49.095. General rule of privilege

A client has a privilege to refuse to disclose, and to prevent
any other person from disclosing, confidential communications:

1. Between himself or his representative and his lawyer or

his lawyer's representative.

2. Between his lawyer and the lawyer's representative.

3. Made for the purpose of facilitating the rendition of
professional legal services to the client, by him or his lawyer to a
lawyer representing another in a matter of common interest.

Lawyers are fond of defining things and the Nevada statutes contain numerous definitions and qualifications that effect this privilege. More on those next blog.

Accidents, like the challenges of life, aren't always straightforward, and defense attorneys are adept at making the most of complexity.

So what happens when you're in an accident and you may have some fault, too?

Nevada law is generally clear on this issue. N.R.S. 41.141 provides, in part, as follows:

41.141. When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants

1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

2. In those cases, the judge shall instruct the jury that:

(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.

(b) If the jury determines the plaintiff is entitled to recover, it shall return:

(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.

Basically, this means that if your case ends up at an arbitration or a trial, you will be barred from recovery only if you are determined to be more than 50% at fault.

If you are determined to be 50% or less at fault, then whatever award you receive will be reduced by your percentage of fault.

The full text of this statute and others can be found at http://www.leg.state.nv.us/law1.cfm

Across the country, standard attorney's fee contingencies in medical malpractice cases range from 33% to 40% of gross or net recovery, and higher contingency fees are not uncommon. Plaintiff's attorneys have long reasoned that medical malpractice cases are especially expensive and particularly risky. Additionally, medical malpractice cases often involve complex issues and require an attorney to have a background in medical issues and an ability to find and work with medical experts.

In Nevada, the medical malpractice insurance industry recently took matters into its own hands and managed to push a broad ballot initiative into law that slashed attorney's fees in all Nevada medical malpractice cases. While arguably of benefit to medical malpractice plaintiffs, the law has had the intended consequence of forcing many attorneys into other areas of practice. Hence, there are now fewer medical malpractice attorneys in Nevada than there were two years ago, and in many parts of Nevada there weren't an abundance of medical malpractice attorneys to begin with.

So what does the new law do to attorney's fees?

N.R.S. 7.095 now provides a convoluted scheme for attorney compensation in medical malpractice cases and provides:

7.095. Limitations on contingent fees for representation of persons in certain actions against providers of health care

1. An attorney shall not contract for or collect a fee contingent on the amount of recovery for representing a person seeking damages in connection with an action for injury or death against a provider of health care based upon professional negligence in excess of:

(a) Forty percent of the first $50,000 recovered;
(b) Thirty-three and one-third percent of the next $50,000 recovered;
(c) Twenty-five percent of the next $500,000 recovered; and
(d) Fifteen percent of the amount of recovery that exceeds $600,000.

2. The limitations set forth in subsection 1 apply to all forms of recovery, including, without limitation, settlement, arbitration and judgment.

3. For the purposes of this section, "recovered" means the net sum recovered by the plaintiff after deducting any disbursements or costs incurred in connection with the prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and general and administrative expenses incurred by the office of the attorney are not deductible disbursements or costs.

4. As used in this section:

(a) "Professional negligence" means a negligent act or omission to act by a provider of health care in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death. The term does not include services that are outside the scope of services for which the provider of health care is licensed or services for which any restriction has been imposed by the applicable regulatory board or health care facility.
(b) "Provider of health care" means a physician licensed under chapter 630 or 633 of NRS, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, medical laboratory director or technician, or a licensed hospital and its employees.

Prospective medical malpractice clients often ask me about attorney's fees and my answer is always the same: attorneys in Nevada are now regulated by law and all attorneys are limited, by statute, with respect to what they can charge.

You can find other statutes of interest at http://www.leg.state.nv.us/law1.cfm

NRS 49.015 provides, generally:

49.015. Privileges recognized only as provided

1. Except as otherwise required by the Constitution of the
United States or of the State of Nevada, and except as provided in
this Title or Title 14 of NRS, no person has a privilege to:

(a) Refuse to be a witness;

(b) Refuse to disclose any matter;

(c) Refuse to produce any object or writing; or

(d) Prevent another from being a witness or disclosing any
matter or producing any object or writing.

2. This section does not:

(a) Impair any privilege created by Title 14 of NRS or by
the Nevada Rules of Civil Procedure which is limited to a particular
stage of the proceeding; or

(b) Extend any such privilege to any other stage of a
proceeding.

In general, then, a privilege exists when provided for by law. Next blog we'll begin to look at the most common privileges.

But of course people do read blogs because blogs deliver targeted information. This blog, for instance, is intended for the sole purpose of helping the public find answers to commonly asked questions about Nevada law. My goal has always been simple: deliver more substantive information on Nevada law than any other lawyer on any other site.

I'll continue to do that, and I'll continue to poach from my four Nevada legal guides (recently published and selling well - check our site at www.NevadaLegalGuides.com).

Legal professionals who use my guides now pay between $40 and $50 a book. But if you tune into my site, you will see many excerpts from my books (which took four years to compile) provided free of charge.

So keep tuning in and I'll keep providing more information on Nevada injury law than you'll find anywhere else.

And if you've seen this blog column, and have unanswered questions, simply drop me an email and I'll do my best to answer your question as quickly as possible.

Starting tomorrow I'll begin an extensive look at Nevada evidence law. See you there.

The Court recently affirmed its longstanding views in this regard in set of holdings on this issue in Wood v. Safeway, decided on October 20, 2005.

There, Jane Doe, a mentally handicapped woman, was working for Safeway Stores when she was sexually assaulted by Emilio Ronquillo-Nino, who was employed by a company that provided janitorial services at the Safeway where Doe worked. Doe, through her guardian ad litem, filed a complaint against Safeway and Ronquillo-Nino's employer, Action Cleaning, alleging five causes of action as a result of the sexual assault.

The lower court granted summary judgment in favor of Safeway, determining that it was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (NIIA). The district court also granted summary judgment in favor of Action Cleaning pursuant to NRS 41.745 because it was not liable for intentional torts committed by its employee and because Ronquillo-Nino’s intervening criminal acts were a superseding cause that relieved Action Cleaning of responsibility.

Nevada law has long barred employees from suing employers for injuries that arise in the course of employment. In Wood, the Court recognized that Doe's employment with Safeway brought her into contact with the assailant. While the nature of her work required her to interact with employees and the public, her specific job duties included cleaning various areas of the store and collecting shopping carts from the parking lot. Two of the sexual assaults occurred while she was collecting carts from a lot that was behind or next to the store, and the other in a cleaning supply room that was presumably in an area off limits to the public. As a result, the Court concluded that Doe's employment contributed to and increased the risk of assault beyond that of the general public. Her only contact with Ronquillo-Nino was through her employment. Because he worked as a janitor there, he was aware of the store layout and which areas of the store provided vulnerable locations. The sexual assault, reasoned the Court, was not imported into the workplace or otherwise the result of motivations peculiar to the assailant and the victim that are unrelated to the employment. Therefore, Doe's injury falls within the coverage of the NIIA, and her claims are barred by NRS 616A.020.

The Court also examined the lower court's grant of summary judgment in favor of Action Cleaning based on the dual grounds that (a) under NRS 41.745 an employer is not liable for harm caused by the intentional torts of an employee, and (b) Ronquillo-Nino's intervening criminal act was a superseding cause that relieved Action Cleaning of liability. Doe argued against both conclusions on the basis that Ronquillo-Nino's acts were foreseeable given that Action Cleaning's workforce is highly transient, untrained, largely unsupervised, and "comprised almost entirely of" illegal aliens.

The Court disagreed. First, said the Court, Ronquillo-Nino had no prior criminal history in the United States or Mexico. Action Cleaning requires applicants to show proof of identification, checks employment references, and completes the proper Immigration and Naturalization forms for every employee. Action Cleaning's district manager further stated that he had not received complaints of sexual harassment regarding Ronquillo-Nino or any other employee in the past ten years. Under the circumstances of this case, it was therefore not reasonably foreseeable that Ronquillo-Nino would sexually assault a Safeway employee. Moreover, as noted, the assault resulted from Ronquillo-Nino's independent acts and was not within the course and scope of his employment. Consequently, under NRS 41.745, the Court found that Action Cleaning was not liable for the intentional conduct of its employee, Ronquillo-Nino and the Court similarly concluded that Ronquillo-Nino's actions were an intervening superseding act that relieves Action Cleaning of liability in this case.

Nevada is a state that protects employers and The Nevada Supreme Court's conclusion in the Wood case continues Nevada's tradition of protecting employers from the consequences of intentional harm done by their employees.

Peck was convicted of first-degree murder and sentenced in April 2003 to two life prison terms without the possibility of parole for shooting Bohach once in the chest with an armor-piercing bullet...Bohach was 35. The 14-year veteran officer died within minutes.

The wrongful death suit was filed by Bohach's children, widow, mother and brother.

There's a fascinating and disturbing constitutional amendment on South Dakota's November ballot.

Here's an editorial dated October 17, 2006 from the Press & Dakotan, which can be found at http://www.yankton.net/stories/101706/opEd_796101706.shtml:

South Dakota's proposed Constitutional Amendment E -- the so-called J.A.I.L. amendment -- on the November ballot is one of the more distressing measures to ever go before the state's voters. At best, it's unfortunate and possibly unconstitutional at the federal level; at worst, it's an invitation to chaos not only in the state's judicial system but for elected officials at various levels.

Proponents of the measure describe Amendment E as a tool by which ordinary citizens can file complaints and possibly collect restitution and assess damages (retroactively, to boot) on judges who have abused their powers.

However, many -- including the state's attorney general -- have interpreted the proposed measure in much broader and more disturbing terms. It could expose not only judges but also juries, prosecutors (and, potentially, witnesses with judicial immunity), city commissioners, county commissioners, school board members and other officials, elected or voluntary, who make judicial decisions to punishment doled out by special grand juries organized to hear complaints of wrongdoing.

One must bear in mind that there are reasons the aforementioned group of decision-makers are granted these immunities. Our system allows this so that, as the ballot explanation for this measure states, they are free to "do their job without fear of threat or reprisal from either side." This is essential to ensuring as much equity and impartiality in our system as possible, as well as maintaining a viable separation of power within our government. Otherwise, a judge or jury, for instance, may find their decisions influenced if they fear retribution from one of the parties in a case.

In fact, there are already avenues in place for certain recourses. Judicial and court decisions can be appealed, and judges can be defeated in elections or held up to scrutiny by the Judicial Qualifications Commission. In a broader scope, commissioners can be voted out or recalled. Members of zoning boards can have their decisions appealed. So, there are remedies and options already available that manage to keep intact the "immunity" these positions need to perform.

What we see happening should Amendment E be enacted is a tidal wave of frivolous complaints, filed by disgruntled individuals, filling the dockets of these special grand juries. In some cases, what would the "complainants" have to lose? This would have devastating impact on the state's judicial system and on governing boards. It would also have a chilling effect on potential candidates for judgeships and for boards: Who would be willing to expose themselves to such intimidation and punishment? That kind of atmosphere would indeed be a recipe for chaos.

One should also ask, if Amendment E is enacted and special grand juries are set up, would these special grand juries be subject to this same kind of review? And would the special grand jury that sits in judgment of the first grand jury also be exposed, etc., etc.? And if not, why not?

On a personal note, we should also mention that our fleeting exposure to the Amendment E proponents, several of whom hail from out-of-state and thus would not be affected by the mess they may generate here, has been intriguing, to say the least. Rightly or wrongly, they come off as hotheaded, paranoid, quick to pass judgment and the kind of people who probably wouldn't hesitate to file lawsuits and take other actions against anyone they dislike or define as "wrongdoers" according to their own definitions. In short, they make the case in illustrating why the immunities they criticize were set up in the first place.

Many lawyers, judges and lawmakers have come out vigorously against this measure (proponents might claim it proves their point) for various reasons. In fact, the state Legislature adopted a rare resolution condemning it. So, let us try the angle of pleading: For goodness sake, run away from Amendment E -- or better yet, make a stand and vote "no" on Nov. 7 to plant this thing in the grave of oblivion it richly deserves.

The same day a Philadelphia jury ruled that a hormone replacement drug at least partially caused a woman's breast cancer, a Reno woman who is dying of the disease reached an out-of-court settlement with the New Jersey-based drug maker.

Just two days before her trial was to begin, Carol McCreary and Wyeth Pharmaceuticals told Washoe District Judge Robert Perry on Wednesday they have resolved the case. Both sides agreed that the terms of the settlement will remain confidential.

Earlier Wednesday, the Philadelphia jury awarded Jennie Nelson, 66, of Dayton, Ohio, $1 million and her husband $500,000 in compensatory damages. The panel must return to determine whether Wyeth is liable for damages.

Nelson had taken Prempro for five years to treat menopausal symptoms before being diagnosed with breast cancer in 2001.

"Other plaintiffs lawyers will see this as an indication that it's possible to prove causation in a Prempro case, and that will be encouraging to plaintiffs and unwelcome news for Wyeth," Seton Hall law professor Howard M. Erichson said.

"But ultimately, if Wyeth prevails in the second phase, then Weyeth will be 2-and-0 in the Prempro litigation and that will be the significant news," he said.

Madison, N.J.-based Wyeth won the first Prempro case last month when a federal jury in Little Rock, Ark., rejected a similar claim filed by a 67-year-old woman there.

About 5,100 women have filed suits over Wyeth hormone drugs Premarin and Prempro, but just a handful are scheduled for trial this year. The Philadelphia case is the second to go to trial. McCreary's would have been the third.

Wyeth said the company acted responsibly, noting that the Food and Drug Administration in 1995 called hormone replacement drugs the most extensively researched medicines in the United States.

"I am grateful that my attorneys have resolved my case against Wyeth Corporation," she said in a statement. "I am happy to get on with my life and not spend the next several weeks in a courtroom."

In the weeks leading up to the trial, Wyeth representatives said they sympathized with McCreary's situation, but denied that Prempro is responsible for her cancer.

"Science is unable to determine the specific cause of any woman's breast cancer," Wyeth spokesman Chris Garland said before Perry issued a gag order against the two sides in the case. "Despite what plaintiff's lawyers may say, medical experts will testify that the cause cannot be pinpointed."

"The risk of breast cancer associated with hormone therapy is actually lower than the risk of developing a brain hemorrhage from taking aspirin," Garland said.

In an informed consent case, plaintiff's assertion that he or she would have refused treatment must be reasonable under the circumstances. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

In determining reasonableness, the court may consider testimony of the patient as well as medical evidence regarding the risks of remaining untreated, the possible alternative treatment and the risks and expected benefits of alternative treatments. No single type of evidence is to be conclusive; rather, all evidence must be considered by the fact-finder in determining whether, had the full extent of the risk been known, plaintiff would have reasonably refused treatment. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

A qualified nurse may testify regarding the national standard of care for a hospital. Oehler v. Humana Inc., 105 Nev. 348, 775 P.2d 1271 (1989).

When establishing standard of care to be applied in a medical malpractice case, plaintiff must use testimony of expert witnesses with knowledge of the prevailing standards. There is no requirement that the expert medical witness be from the same specialty as defendant; the issue is simply one of the witness' actual knowledge. Rees v. Roderiques, 101 Nev. 302, 701 P.2d 1017 (1985).

In order to recover in a medical malpractice case against a board certified specialist, the patient must demonstrate that the defendant specialist failed to meet the standard of skill and care expected of a reasonably competent practitioner in the same specialty, wherever practicing. Wickliffe v. Sunrise Hospital Inc., 101 Nev. 542, 706 P.2d 1383 (1985); Orcutt v. Miller, 95 Nev. 408. 595 P.2d 1141 (1979).

To prove medical malpractice, plaintiffs must first establish the accepted standard of medical care or practice, and then must show that the doctors' conduct departed from that standard, and legally caused injuries suffered. Fernandez v. Admirand, 843 P.2d 354, 108 Nev. 963 (1992).

To prevail in a medical malpractice action, the plaintiff must also prove that the alleged negligence more probably than not caused the ultimate injury. Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991).

Under the "loss of chance" doctrine in a medical malpractice action, the injury to be redressed by law is not defined as death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991).

A doctor has the duty to disclose information that a reasonable practitioner in the same field of practice would disclose; the doctor's duty is measured by a professional medical standard, which the patient must establish with expert testimony. NRS 449.710; Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

A lack of informed consent must be demonstrated through expert testimony based upon NRS 41A.100, which requires expert testimony to prove negligence in medical malpractice actions. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

To establish proximate cause in an informed consent case, there must first be a showing that the unrevealed risk which should have been revealed by the doctor actually materialized, as well as showing that the patient would have refused surgery had he been informed of the risk. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

As always, when I list holdings from multiple cases, selections are listed in chronological order starting with more recent cases:

In a medical malpractice case, under the traditional doctrine of res ipsa loquitur, the presumption of negligence arises after plaintiff has established that the event in question is one that ordinarily does not occur in the absence of negligence; whether plaintiff has established this may be within the common knowledge of a lay person. If not, expert testimony is required. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

NRS 41A.100 replaces, rather than supplements, the classic res ipsa loquitur formulation in medical malpractice cases where it is factually applicable. Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

The very fact that Rentnelli's condition continued to deteriorate after treatment by the Reno doctors, but immediately improved after the Santa Barbara doctors' treatment, would lead a reasonable person to believe that the first doctors did not adequately treat Rentnelli's ailments. Dutt v. Kremp, 894 P.2d 354, 111 Nev. 567 (1995).

As a general rule, a plaintiff must use expert testimony to establish medical malpractice. NRS 41A.100; Jain v. McFarland, 109 Nev. 465, 851 P.2d 450 (1993).

The locality rule is not the standard to be applied to board certified specialists in malpractice actions. Mishler v. Nevada Board of Medical Examiners, 109 Nev. 287, 849 P.2d 291 (1993); Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1141 (1979).

This blog I will concentrate on those cases that discuss proving medical malpractice claims in Nevada and in the next two blogs I will finish this discussion of proof.

The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving medical malpractice. The reader should note that the law of medical malpractice is closely related to the law of negligence. As such, Nevada legal decisions that pertain to negligence sometimes come into play in medical malpractice litigation:

The district court's refusal to allow evidence of the fact that the surgical procedure performed had not been approved by the FDA was within its discretion. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).

Exclusion of SIIS survey, which consisted of brief descriptions of numerous other cases in which Dr. Thalgott performed surgery, was appropriate. The district court could properly find that injecting these other cases into trial would prolong the trial, confuse the issues and divert the jury to collateral matters. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).

A prior court case describing similar surgical events was admissible in support of the expert's opinion that patient's condition was medically possible. Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998).

Under NRS 41A.100, Nevada's medical malpractice res ipsa loquitur statute, the presumption of negligence automatically applies where any of the enumerated factual circumstances are present. All plaintiff need do is present some evidence of the existence of one or more of the factual predicates enumerated in the statute. If the trier of fact then finds that one or more of the factual predicates exist, the presumption must be applied. NRS 41A.100 provides the following circumstances: (a) A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery; (b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; (c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care; (d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or (e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's body. NRS 41A.100; Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998); Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).

Common-law professional medical standard for informed consent, rather than a patient-oriented standard of informed consent, applies to the chiropractic field. Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004).

Consent to treatment may be express or implied. By seeking chiropractic treatment, Plaintiff's consent to the particular technique may be implied because as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient. Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004).

An attorney had probable cause for filing a malpractice action against physicians, and thus did not commit tort of malicious prosecution, because the reasonable attorney believed that action was legally tenable. The fact that the patient's condition continued to deteriorate after treatment by a first group of physicians, but immediately improved after treatment by a second group of physicians, would lead a reasonable person to believe that the first group did not adequately treat the patient. Dutt v. Kremp, 894 P.2d 354, 111 Nev. 567 (1995).

A mother may maintain a medical malpractice action. 

Plaintiff underwent surgery for treatment to his shoulder, but suffered an injury to his brain, causing his vegetative state. The brain is not directly or proximately related to the rotator cuff surgery. Therefore, the district court did not abuse its discretion when it submitted a res ipsa loquitur instruction to the jury. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).

Sunrise had a duty to sequester the anesthesia equipment after victim's cardiac arrest. Evidence concerning Sunrise's duty to preserve the evidence assisted the jury in relation to its prerogative to draw a negative inference from Sunrise's consummated sale of the equipment. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004).

Expert admitted that, under the circumstances, he could not determine whether the equipment contributed to victim's injury since he was unable to examine the equipment because Sunrise had failed to properly identify which machines were used during surgery. Expert's testimony and opinions established that it was possible for the subject equipment to malfunction intermittently. His testimony was also helpful to establish the standard of care for preserving the identity of the machines and providing grounds for the imposition of sanctions for failure to preserve evidence. It assisted the jury in understanding how the machines could have malfunctioned and why it was reasonable to draw an adverse inference from Sunrise's failure to identify the machines. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004). 

ATLA in motion: CCL report
July 2006 | Volume 42, Issue 7

The U.S. Supreme Court handed injured plaintiffs a significant victory on May 1, ruling unanimously to limit state Medicaid agencies' claims for reimbursement to the portion of any tort settlement attributable to past medical expenses. The agencies may not claim any part of a plaintiff's recovery for lost wages, pain and suffering, or other nonmedical damages. (Ark. Dep't of Health & Hum. Servs. v. Ahlborn, 126 S. Ct. 1752 (2006).)

Heidi Ahlborn was a 19-year-old college student when she was involved in an automobile accident that left her severely and permanently disabled. The Arkansas Department of Health and Human Services (DHHS), the state's Medicaid agency, paid more than $215,000 for her medical treatment.

When Ahlborn recovered $550,000 for her injuries through settlements with various auto insurers, the agency sought full reimbursement of its Medicaid payments, even though, the state acknowledged, the settlement recovery amounted to only about one-sixth of her total damages. Ahlborn then brought a declaratory judgment action to limit the agency's reimbursement to the portion of the settlement attributable to her past medical expenses.

The federal Medicaid Act requires Medicaid recipients to "assign [to] the state any rights . . . to payment for medical care from any third party" and to "assist the state in pursuing any third party who may be liable to pay for care and services available under the [state Medicaid] plan." The Supreme Court rejected Arkansas's argument--supported by 30 other states and the U.S. solicitor general--that these statutory provisions entitled DHHS to full reimbursement out of any settlement. Moreover, the Court ruled, the state could not itself adopt more expansive reimbursement rules, because any reimbursement out of funds paid to the plaintiff for claims such as lost wages and pain and suffering would contravene the anti-lien provision of the Medicaid Act.

The Court's statutory analysis closely tracked ATLA's amicus brief, written by Louis Bograd and Ned Miltenberg of the Center for Constitutional Litigation (CCL). The Court shared ATLA's concern that any rule granting "absolute priority" to the state's reimbursement claim "might preclude settlement in a large number of cases." It agreed with ATLA that any concern about settlement manipulation to avoid repayment could be eliminated through judicial procedures to allocate settlements when the state and the plaintiff cannot agree on a fair allocation.

Other federally funded health care programs, including Medicare, claim a similar right to full reimbursement out of tort settlements. CCL is undertaking a close analysis of those statutory schemes to determine whether the decision in Ahlborn can be extended to ensure an equitable allocation of recoveries in those contexts as well. 

1. Defendant physician, hospital or employee of a hospital, failed, in rendering services, to use the reasonable care, skill or knowledge ordinarily used in similar circumstances;

2. Defendant's conduct was the actual and proximate cause of plaintiff's injury; and,

3. Plaintiff suffered damages.

NRS 41A.009; See, Prabhu v. Levine, 112 Nev. 1538, 930 P.2d 103 (1996).

In order to prevail in a medical malpractice claim in Nevada each of the foregoing elements must be proved. 

TRENTON, N.J. - For eight months during his infancy, Sean Van Duyn gagged, retched and vomited daily. Now 6, the Winter Haven, Fla., boy still can't eat or drink by mouth, instead being fed by a permanent tube in his belly.

Beset by multiple medical problems in his first months, the boy had to have a breathing tube inserted through a hole cut in his neck. The gagging began and continued until his mother, Susan, discovered the tube was misshaped at the end and had been poking the back of his throat the whole time. The tube was replaced, but by then Sean's developing brain was programmed not to swallow; he still cannot.

The family alleged the injury occurred because the plastic breathing tube's tip had been bent during "reprocessing" -- cleaning and heat sterilization -- done at an Orlando hospital even though the tube was labeled for single use only. They won a confidential settlement from the hospital.

The case has fueled the debate over the safety of reusing surgical blades, forceps and other medical devices. The practice was routine until a couple decades ago, when stronger plastics enabled manufacturers to start making devices designed for single use to cut costs and prevent infection spread in the era of AIDS.

Then hospitals, and eventually specialized companies, started "reprocessing" single-use devices, cutting device costs by about half -- without patients' knowledge.

Federal regulators say reprocessing is safe, but original device manufacturers say they can't guarantee recycled products will work correctly -- and that they are wrongly blamed for malfunctions and patient harm caused by reprocessing.

A federal law taking effect Tuesday, requiring reprocessors to put their company name on recycled devices as well as the packaging, could help determine who's at fault when problems occur. For devices too small to mark, detachable stickers could be transferred to the patient's chart.

"That's like a 'Sue Me!' sticker," and may not be used much, said Josephine Torrente, a lawyer and biomedical engineer who consults for device manufacturers.

Dan Vukelich, executive director of the Association of Medical Device Reprocessors, argues reprocessed products are totally safe because each item is inspected before being shipped.

The device makers and their trade group have been lobbying legislators in several states for bills that protect their interests -- and patients. The battle has a big -- and fast-growing -- financial stake for both sides. Device makers saw combined revenues jump from $48 billion in 2001 to $71 billion last year; reprocessors went from a combined $20 million in 2000 to $87 million in 2004.

Johnson & Johnson subsidiary Ethicon Endo-Surgery is suing the biggest reprocessor, Ascent Healthcare Solutions, for trademark infringement over reprocessing its single-use devices.

"It is impossible to reuse them," said Robert O'Holla, J&J's head of regulatory affairs for medical devices, because they are not designed to be taken apart for cleaning. Yet J&J gets complaints from customers about problems with devices showing excessive wear or bleach on them -- signs of reprocessing.

Ascent Healthcare's regulatory chief, Don Selvey, said only about 2 percent of medical devices -- a category that ranges from MRI machines to reading glasses -- are now reprocessed. He said his company's processes reduce chances of "viable organisms" surviving on devices to one in one million.

Reprocessed devices are soaked in sterilizing solutions, disassembled, blasted clean with a fine powder, reassembled and inspected, then packaged, sterilized and resealed. On average, they're reused three to six times.

"It is as safe and effective as a new device if they meet our requirements," said Larry Spears, compliance chief for medical devices at the Food and Drug Administration.

Since early 2004, when reports of problems with medical devices were first required to note if they had been reprocessed, the FDA has received 13 reports of patient deaths and 421 other trouble reports, including 130 involving serious patient harm, although some may be duplicate reports.

Reprocessors say they must meet stringent FDA standards after first proving they can safely clean and sterilize each type of device. But the manufacturers main trade group, the Advanced Medical Technology Association, notes about half of the reprocessors' applications for reprocessing of individual devices were rejected by FDA, a sign of the difficulty of properly cleaning complex devices.

Rep. Tom Davis, a Virginia Republican who chairs the House Government Reform Committee, said Friday he plans a fall committee hearing to examine the issue.

"It is unclear to us at this time whether FDA is able to accurately track how often something goes wrong because a device meant to be used once was instead reused," Davis wrote in a statement.

Congress also has asked its investigative arm, the Government Accountability Office, to update a June 2000 report which concluded more oversight is needed. GAO is unsure when it will begin investigating.

Ken Hanover, CEO of the seven-hospital Health Alliance of Greater Cincinnati, said his hospitals have used reprocessed devices for about eight years without a problem.

"There's far more risk of medication errors in a hospital than of a problem arising with a reprocessed device," he said, adding that his hospitals "probably" would honor patient requests to have only new devices used on them.

Children's National Medical Center in Washington, on the other hand, doesn't use reprocessed devices, said surgeon in chief Dr. Kurt Newman.

"We want to use the safest and most sterile equipment," he said.

University of Pennsylvania bioethicist Arthur Caplan has "qualms" about the practice, particularly because patients don't give informed consent -- required when deviating from the standard of care raises safety or efficacy concerns.

"I just think people ought to know what's going on," Caplan said.

Susan Van Duyn, Sean's mother, agreed.

"If anybody can learn from the tragedies with Sean, it's worth telling" his story, she said. 

Set forth below are case citations and holdings that deal with damage issues in such cases.

The statutes of repose bar only those actions arising out of design and construction-related negligence, but not negligent maintenance. Davenport v. Comstock Hills-Reno, 118 Nev. 389, 46 P.3d 62 (2002).

Under NRS 41.141, a plaintiff who is fifty percent at fault is not barred from recovery, but his damages are reduced by his own percentage of negligence. NRS 41.141(1); State Farm Auto Ins. Co. v. Commissioner of Insurance, 114 Nev. 535, 958 P.2d 733 (1998).

In Nevada, an abutting property owner or occupant does not have a duty to keep a sidewalk in front of his/her property in a reasonable safe condition, and liability will not lie unless owner created defect in manner independent of and apart from ordinary and accustomed use for which sidewalks are designated. Wiseman v. Hallahan, 113 Nev. 1266, 945 P.2d 945 (1997).

Recovery is barred when the danger is obvious, not because the negligence of the plaintiff is greater than that of the defendant, but because the defendant is not negligent at all. The defendant has no duty to warn against an obvious danger and cannot, therefore, be negligent in failing to give such a warning. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).

The obvious danger rule survives the adoption of comparative negligence statutes. Harrington v. Syufy Enterprises, 113 Nev. 246, 931 P.2d 1378 (1997).

The obvious danger rule does not apply to situations where liability is predicated upon acts other than a failure to provide adequate warning of a dangerous condition. Thus, even where the danger is obvious, a defendant may be negligent in having created the peril or in subjecting the plaintiff to peril. Harrington v. Syufy Enterprises., 113 Nev. 246, 931 P.2d 178 (1997).

Where an unforeseeable supervening cause intervenes between defendant's negligence and plaintiff's injury, defendant is relieved of liability. Dakis v. Scheffer, 111 Nev. 817, 898 P.2d 116 (1995); El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 691 P.2d 436 (1984).

Express assumption of risk is essentially a contract where the plaintiff signs a document and openly agrees to hold the defendant harmless for known and inherent dangers of a particular activity. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994).

With the single exception of an express assumption of risk, the assumption of risk doctrine has been subsumed by our comparative negligence statute and is no longer a bar to recovery for negligence. Auckenthaler v. Grundmeyer, 110 Nev. 682, 877 P.2d 1039 (1994); Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).

Where a foreign substance causing a patron to slip and fall results from actions of persons other than the business or its employees, the business is liable only if it had actual or constructive notice of the condition and failed to remedy it. Chastain v. Clark County School Dist., 109 Nev. 1172, 866 P.2d 286 (1993); Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320 (1993).

The contributing fault on the plaintiff's part could reduce the plaintiff's recovery under the doctrine of comparative negligence, but it does not negate a finding that the defendants' negligence was the proximate cause of the plaintiff's injuries. Joynt v. California Hotel & Casino, 108 Nev. 539, 835 P.2d 799 (1992); Taylor v. Silva, 96 Nev. 738, 615 P.2d 970 (1980).

NRS 41.500, the Good Samaritan statute, provides that any person who renders emergency aid, gratuitously and in good faith, is not liable for acts of ordinary negligence. The phrase "gratuitously and in good faith," limits the protection of this statute to those situations in which the rescuer was not already under a duty to act. NRS 41.500; Sims v. General Telephone & Electronics, 107 Nev. 516, 815 P.2d 151 (1991), overruled on other grounds in Tucker v. Action Equipment and Scaffold Co., Inc., 113 Nev. 1349, 951 P.2d 1027 (1997).

Critical ingredients of "emergency" situation within meaning of Good Samaritan statute are as follows: suddenness, unexpected necessity for immediate action, lack of time for measured evaluation of alternative courses of action, and respective efficacy and priority of alternatives. NRS 41.500; Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989).

The vitality of express assumption stems from a contractual undertaking that expressly relieves a putative defendant from any duty of care to the injured party; such a party has consented to bear the consequences of a voluntary exposure to a known risk. Mizushima v. Sunset Ranch, 103 Nev. 259, 737 P.2d 1158 (1987).

To relieve a defendant from liability under an "act of God" theory, the act must be such a providential occurrence or extraordinary manifestation of the forces of nature that it could not reasonably have been foreseen, and the effect thereof avoided by reasonable care or by the use of those means which the situation renders reasonable to employ. Alamo Airways, Inc. v. Benum, 78 Nev. 384, 374 P.2d 684 (1962).

Set forth below are case citations and holdings that deal with damage issues in such cases.

Relief in contribution and implied indemnity is unavailable to the extent those claims arise from the intentional or punitive liability of the party seeking such relief. The Doctors Co. v. Vincent, 120 Nev. 644, 98 P.3d 681 (2004).

Whether Beckwith thought Reccelle was God or his evil master is of no matter because he admittedly struck Reccelle in the eye with the desire of getting away from him. This is a non-accidental intentional act even if Beckwith did not intend to harm Reccelle. Thus, we conclude that Beckwith's act of striking Reccelle is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. Beckwith v. State Farm Fire and Cas. Co., 120 Nev. 23, 83 P.3d 275 (2004).

A government entity is afforded immunity for pre-emergency negligence when the damage caused by the negligent emergency management was exacerbated by the pre-emergency negligence. A government entity, however, is not immune from liability for its pre-emergency negligence that is not intertwined with damage caused by later negligent emergency management activities. Vermef v. City of Boulder City,119 Nev. 549, 80 P.3d 445 (2003).

An employer was not vicariously liable for its employee's negligence when the employee commuted from his home to a jobsite in his private vehicle. Kornton v. Conrad, Inc., 119 Nev. 123, 67 P.3d 316 (2003).

State employees engaged in child protective services are entitled to quasi-judicial immunity when they provide information to the court (e.g., reports, case plans, testing evaluations and recommendations) pertaining to a child who is or may become a ward of the State. When a state agency or its employees provide their decision-making expertise to the court, they act as an arm of the court and are entitled to absolute quasi-judicial immunity. However, once the court makes a decision ratifying the recommendations of the state agency (e.g., placement in foster care, need for further medical evaluation, etc.), the state agency and its employees are no longer acting as an arm of the court. Rather, their function in carrying out the order of the court falls within the executive branch of government and pursuant to their statutory duties. Specifically, quasi-judicial immunity does not apply to state agencies or their employees for the day-to-day management and care of their wards. State v. Second Judicial Dist. Court ex rel. County of Washoe, 118 Nev. 609, 55 P.3d 420 (2002).

The Court declined to recognize an independent tort for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third party. Additionally, the Court concluded that a negligence claim for spoliation does not exist under the circumstances presented in this case. Timber Tech Engineered Bldg. Products v. The Home Ins. Co., 118 Nev. 630, 55 P.3d 952 (2002).

CHICAGO - Just days after announcing a crackdown on researchers who do not disclose drug company ties, the editor of a prestigious medical journal says she was misled again -- this time by the authors of a study linking severe migraines to heart attacks in women.

All six of the study's authors have done consulting work or received research funding from makers of treatments for migraines or heart-related problems. Their research appears in Wednesday's Journal of the American Medical Association, a week after the crackdown was announced.

The authors said they did not report their financial ties because they did not believe they were relevant to the study.

An employer may be liable for punitive damages for acts or omissions of its agents if, but only if, (a) principal or managerial agent authorized doing and manner of act; (b) agent was unfit and principal or managerial agent was reckless in employment or retaining him, (c) agent was employed in managerial capacity and was acting in scope of his employment, or (4) principal or managerial agent of principal ratified or approved act. Smith's Food & Drug Centers, Inc. v. Bellegarde, 114 Nev. 602, 958 P.2d 1208 (1998).

Absent injury to person or property, a plaintiff may not recover in negligence for economic loss. Arco Products Co. v. May, 113 Nev. 1295, 948 P.2d 263 (1997); Local Joint Executive Board v. Stern, 98 Nev. 409, 651 P.2d 637 (1982).

Emotional distress can be an element of damage recovered by a direct victim in a negligence cause of action. Shoen v. America, Inc., 111 Nev. 735, 896 P.2d 469 (1995).

When a party negligently damages the property of another, the damage award should be designed to compensate the injured party in full measure for the total harm proximately caused by the defendant's breach of duty. Nelson v. Peckham Plaza Partnerships, 110 Nev. 23, 866 P.2d 1138 (1994).

Economic loss is something other than property damage. Economic losses include lost profits, lost productivity, lost wages, business expectations and other losses that flow from the loss of the things damaged by the defective product. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Pratt and Whitney Canada, Inc., 107 Nev. 535, 815 P.2d 601 (1991).