Nevada Medical Malpractice Laws

There is a certain level of trust that a patient places within their healthcare provider that is hard to duplicate. Patients allow their healthcare providers to see their medical history, learn about their current and ongoing physical ailments and perform procedures that often require them to put their life in the hands of their physician. When this level of trust is severed due to medical malpractice, it can be difficult to know what steps need to be taken in order to seek a legal remedy that is just.

If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in your state has created a finite period of time in which you are permitted to bring a claim.

In addition, the law in Nevada has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Nevada; however, the best course of action to take if you are considering doing so it to consult with an experienced medical malpractice attorney licensed in Nevada.

Suing for Medical Malpractice in Nevada

If you were injured due to the negligence of a health care provider, you may be in a position to file a medical malpractice lawsuit. The law in Nevada places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Nevada allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many, if not most, cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, unlike many other states, the law in Nevada does not cap those damages. Timing is everything when filing a medical malpractice claim in Nevada as the law places a statute of limitations on how long you may wait to bring your claim.

How long do I have to file a medical malpractice case in Nevada?

In order to ensure that medical malpractice claims are brought within a reasonable amount of time, the law in Nevada requires that you file your claim of medical malpractice within the earlier of three years from the date of the act or omission that gave rise to your injury or one year from the date the injury was or should have been discovered. [1]

The logic behind extending the time period for which a claim may be brought beyond the standard one-year period is that some injuries are not easily discoverable. For example, during a surgical procedure, it is possible that a member of the surgical staff accidentally left a surgical tool in your body and the tool was not removed prior to completing the surgery. In this instance, it is unlikely you would know that the foreign object is in your body until symptoms appeared and those symptoms have the potential to take months to years to appear. Penalizing you for not knowing such a dangerous error was made is not just and for that reason the discovery rule was implemented by Nevada lawmakers. However, if you wish to implement the discovery rule, the burden is on you to prove that you did not, and could not, have reasonably discovered the injury within the standard two-year window of time.

If you file your medical malpractice lawsuit after the applicable statute of limitations have expired, it is likely that your case will be dismissed and you will be left without a legal recourse for the injury you incurred as a result of medical negligence.

In Nevada Medical Malpractice Cases, Who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not an inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In Nevada, a health care provider is any individual or entity that is licensed or otherwise authorized to perform medical treatment or services on patients. This can include physician assistants, dentists, licensed nurses, dispensing opticians, optometrists, registered physical therapists, pediatric physicians, licensed psychologists, chiropractors, doctor of Oriental medicine, medical laboratory directors or technicians, licensed dietitians or a licensed hospital, clinic surgery center, physicians’ professional corporation or group practice that employs any such people. [2]

What if I am partially to blame? Can I Still Recover Money for Nevada Medical Malpractice?

Nevada, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Nevada is one of 22 states (Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [3]

In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor never should have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Nevada decided to adopt a modified system.

Are there medical malpractice recovery caps in Nevada?

Upon the conclusion of a successful medical malpractice claim, a monetary award, known as damages, will be awarded to you by the court. The law in Nevada has established different types of damage awards that you may receive:

Compensatory Damages are awarded for the purpose of helping to put a person back in the position which existed before their injury occurred. Under the compensatory damages umbrella are two sub-categories; General Damages and Special Damages.

General Damages link the defendant’s conduct with your injury. General damages can include an award for pain and suffering; mental anguish; lowered quality of life; disfigurement and impairment.

Special Damages are damages that compensate you for financial losses suffered as a result of the defendant’s actions. Special damages may come in the form of an award for covering the cost of surgery; lost wages and future earning capacity; past medical expenses and future medical expenses.

Punitive Damages do not compensate you for your injury. Instead, punitive damages are intended to punish the defendant and deter future behavior similar to that of the defendant. For punitive damages to be awarded, you must prove that the defendant’s conduct was willful, wanton, and malicious.

The law in Nevada does not cap the amount of damages that you may receive in a medical malpractice action. However, punitive damages are only awarded where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, and are limited to three times the amount of the compensatory damage award amount if they were $100,000 or more or $300,000 if the amount of compensatory damages was less than $100,000.

Expert witness reporting and testimony

An expert witness is a person who is a specialist in a subject who may present their expert opinion without having been a witness to any occurrence relating to the claim being brought before the court.

The testimony of an expert witness is of utmost importance in Nevada because, in order to have a successful outcome, you must prove:

• There was a breach of the standard of care owed by the physician by an act or omission and that caused the plaintiff’s injury; and
• The breach of the requisite standard of care was the proximate cause of the injury

The law in Nevada requires the use of expert testimony even before your case reaches the trial stage of litigation. To begin your lawsuit you must file, in addition to a Complaint document, an Affidavit which supports the allegations contained in the Complaint, by way of the words of 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. [4]

The Affidavit must be signed by an expert witness and must state that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant you have named in the lawsuit. This means that the expert believes that the applicable standard of care was breached by the named defendants and that the breach was the proximate cause of your injury.

The law in Nevada considers a witness to be an expert if the person 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. [5]

Are some parties immune from medical negligence cases?

The law in Nevada has waived potential immunity from liability in medical malpractice actions. This means that Nevada’s municipalities, towns, cities, and counties – as well as their employees – are not immune from liability. However, an award of damages against a present or former officer or employee of the state or any political subdivision, may not exceed $50,000. [6]

Settling medical malpractice cases in Nevada

The law in Nevada requires the use of alternative dispute resolution prior to the case reaching the trial stage of litigation. [7] Once a Complaint is filed a screening panel must first review the case before it may proceed any further. The panel will determine if there was a reasonable probability of medical malpractice and if an injury was caused because of it. [8] If the panel finds that there was no medical malpractice, the plaintiff can still proceed with their care but will have to pay the defendant’s costs and attorney’s fees if there is an unfavorable verdict. [9] If the panel finds that there was a reasonable probability of medical malpractice, the parties will be required to attend a settlement conference where the judge decides the reasonable value of the claim. [10] If the defendants reject the settlement suggestion, and a higher amount is awarded to the plaintiff, they must pay the plaintiff’s costs and attorney’s fees. If the plaintiff rejects the settlement suggestion and is awarded a smaller amount, they must pay the defendant’s costs and attorney’s fees.

Litigating medical negligence cases in Nevada

A claim for medical malpractice in Nevada begins with the filing of a complaint. The complaint must specifically describe the alleged malpractice that occurred and also designate expert witnesses who will testify on your behalf.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the lawsuit going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties involved in a medical malpractice lawsuit are unable to reach a settlement agreement, the case will proceed to trial.

In Nevada, a civil action first begins with the filing of the complaint with the appropriate court. Nevada’s municipal and justice courts hear specific types of cases; District Courts are considered courts of general jurisdiction; and the Nevada Supreme Court is the final court of appeals. If the damage amount you are seeking is over $10,000, the District Court will have jurisdiction.

The complaint is a document that names the parties involved parties, states the reason for the lawsuit, and asks for monetary relief from the court.

Additionally, the law in Nevada requires you to file a document called an Affidavit along with your complaint. The Affidavit must be signed by an expert witness and must state that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant you have named in the lawsuit. This means that the expert believes that the applicable standard of care was breached by the named defendants and that the breach was the proximate cause of your injury.

After the complaint is properly filed with the court, the litigation process has begun from a statute of limitations standpoint. The complaint must then be personally served upon the defendant(s) by the sheriff, special process server, or certified mail. Once the defendant(s) is served, he has twenty (20) days to file an answer at the same court. [11]

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is the formal process of exchanging information between parties about the witnesses and evidence that will be presented at trial.

The discovery process can include requests for the production of medical records, physician notes, the taking of depositions, interrogatories, and requests for admission. Essentially, the discovery process can include almost anything that can help bolster a legal argument.

A deposition is witness’s sworn out-of-court testimony used to gather information as part of the discovery process and, in limited circumstances, may be used at trial. In most cases, the plaintiff, as well as all named defendants, may be deposed prior to trial in addition to certain witnesses and, in the case of a medical malpractice claim, doctors. The actual deposition involves a question and answer session between opposing counsel and the involved parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary.

Interrogatories are a set of written questions which set forth the facts of your claims. The questions are served upon the other side and they must be answered under oath.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, many cases settle prior to going to trial. Settlement can take place during mandated alternative dispute resolution sessions. However, if the parties are unable to come to a settlement agreement during mediation, arbitration or neutral evaluation, trial is likely the next step in the litigation process.

Trial

If the parties are unable to reach a settlement at any point, the case will go to trial.

During a trial all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Nevada: a judge or a jury.

To choose a jury, a procedure known as “voir dire” is conducted whereby each side’s attorney asks potential jurors questions in order to determine what biases the panel members may have in favor or against the case being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. Once each side finishes announcing the parties they wish to have removed, the just will be impaneled.

In Nevada, a person is considered to be qualified to be a qualified juror whether registered or not, if they have sufficient knowledge of the English language, have not been convicted of treason, a felony, or other infamous crime, and have not rendered incapable by reason of physical or mental infirmity. [12]

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury and likely that the plaintiff significantly contributed to their own injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court to the State Supreme Court. An appeal allows the higher court to review the actions of a lower court in order to determine if the law was appropriately applied.

If either party wishes to appeal a decision rendered by a lower court, the appeal must be filed within thirty (30) days of the order. [13]

How to find the best Nevada Medical Malpractice Lawyer for your case

If you or a loved one has had the unfortunate experience of being injured as a result of medical malpractice, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring strong legal representation can help to take your mind off of the legalese so that you can focus on healing and moving forward with your life.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering, and monetary losses you have likely endured. To enhance the chances that you will be compensated, it is important that you find legal counsel that fits your needs. Asking the right questions during the interview process can mean the difference between your case progressing smoothly versus having a disastrous outcome.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

Medical malpractice cases may be paid for in one of two ways; an hourly rate or a contingency fee. Under an hourly agreement, an attorney will charge you an agreed upon rate per hour worked on your case. Meanwhile, a contingency fee agreement does not require an hourly payment. Instead, the attorney will be paid a percentage of the damages you are ultimately awarded by the court. Make sure to ask prospective legal representation about their fee and what you can expect to pay.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Some notable medical malpractice law decisions from Nevada

These cases represent awards to plaintiffs in medical malpractice cases in Nevada. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Sanchez v. Lampinen

Elisa Sanchez visited Dr. Steven Lampinen after she found blood in her stool and suffered pain while going to the bathroom. Dr. Lampinen told her repeatedly that she was suffering from diarrhea and other bowel problems and prescribed a laxative for treatment. A rectal exam was never conducted. Sanchez visited Lampinen’s practice four months later complaining of constipation, pain and difficulty sitting. At that time, a nurse examined her and believed she was suffering from internal hemorrhoids. An enema was ordered as treatment.

Seven months later, Sanchez was rushed to University Medical Center’s emergency room because of major pain. A colonoscopy was performed which discovered a cancerous tumor. Although the tumor was removed, the cancer returned and spread throughout her body and she died at the age of 27.

A lawsuit was brought upon her behalf by her surviving family. The lawsuit claimed that Dr. Lampinen and Brian Bishop who was a nurse at Lampinen’s practice, both were negligent and failed to properly examine Sanchez.

The jury agreed and ultimately found that Dr. Lampinen was mostly liable and that his treatment fell below the applicable standard of care. Had Sanchez been properly diagnosed upon her first visit, her chances of surviving would have been around the 97% mark.

The jury awarded $2.5 million in damages.

Orth v. Capanna

A former University of Nevada Las Vegas football player filed a medical malpractice lawsuit against a surgeon who he claimed botched a spinal surgery so severely that his football career was forced to end.

The football player’s back pain first began in 2009. MRI results showed his L5-S1 disc, in the lower back, was herniated. Discs, the cushioning between vertebrae, can irritate nerves when they herniate or slip.

Dr. Capanna operated to repair the damaged disc on Sept. 17, 2010. The doctor testified during the trial that he worked on the correct disc, but that the patient knew there was a risk of damage to the one above it. Dr. Capanna even stated the surgery caused the additional pain. A different doctor said in court documents that he saw damage to the higher disc and believed no surgery had been done on the herniated disc.

Complications from both surgeries caused the plaintiff’s spine to rapidly degenerate. The discomfort in the back worsened after Dr. Capanna performed surgery. Within about three weeks of the procedure, the plaintiff testified the simplest of tasks of standing up or walking became excruciatingly painful.

The jury agreed with the plaintiff awarded $3.8 million for pain and suffering and $486,000 for past and future medical expenses.

Footnotes

[1] Nev. Rev. Stat. Ann. § 41A.097

[2] Nev. Rev. Stat. Ann. § 41A.017

[3] Nev. Rev. Stat. Ann. § 41.141

[4] Nev. Rev. Stat. Ann. § 41A.071

[5] Nev. Rev. Stat. Ann. § 41A.100

[6] Nev. Rev. Stat. Ann. § 41A.035

[7] Nev. Rev. Stat. Ann. § 41A.016

[8] Nev. Rev. Stat. Ann. § 41A.049(2)

[9] Nev. Rev. Stat. Ann. § 41A.056

[10] Nev. Rev. Stat. Ann. § 41A.059

[11] Nevada Rules of Civil Procedure Rule 4

[12] Nev. Rev. Stat. Ann. § 6.010

[13] NRAP 4(a)(1)