Recent Blog Posts in August 2006

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.