Recent Blog Posts in September 2006

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).