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Elements of a Nevada Medical Malpractice Claim

Elements of a Nevada Medical Malpractice Claim
Patients trust doctors and other medical personnel to use good professional judgment to make choices that are right for the patient’s health. Even under the best circumstances a doctor’s actions can be insufficient to solve a patient’s problems—there’s always a chance that a treatment won’t work. But sometimes a medical professional’s actions aren’t simply ineffective but rise to the level of negligence. In circumstances where a doctor’s negligence causes serious injury or death, the injured person may want to file a medical malpractice (in Nevada, “professional negligence”) lawsuit.

Basic requirements of a Nevada professional negligence complaint

Nevada’s professional negligence statute, NRS Chapter 41A, has a number of important requirements that a plaintiff must meet before a case can go forward.
  1. An assertion of negligence. Professional negligence in Nevada is the failure of a provider of health care, such as a physician, dentist, or other licensed professional, “to use the reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” NRS 41A.015. Whether a provider’s actions were “reasonable” is often a central issue.
  2. An affidavit of a medical expert. NRS 41A.071 requires plaintiffs to submit an affidavit signed by a professional who works within the area of practice as the defendant. The affidavit must substantiate the claims of negligence in detail. Essentially, the doctor or other professional signing the affidavit must concur with the plaintiff that negligence occurred. Depending on the facts of the injury, finding a physician who is willing to sign such an affidavit may be difficult. Failure to submit an affidavit is grounds for a court to immediately dismiss the case.
  3. Mandatory settlement conference. Before a professional negligence case goes to trial the parties involved must come together for a judicially administered settlement conference.
  4. Evidence of causation. To prevail a plaintiff will need the expert testimony of one or more professionals, or documentation from medical manuals, showing not just that the defendant deviated from an accepted standard of care, but also that the deviation caused the plaintiff’s injury. NRS 41A.100. Cause and effect questions are standard to negligence cases, but in the professional negligence setting the standard of evidence is quite high.
  5. Timing requirement. A professional negligence case must be filed within three years of the injury or one year of its discovery, whichever comes first. NRS 41A.097.
  6. Damages limitation. Although a plaintiff can recover the full scope of economic damages suffered in connection with the injury (such as medical costs and lost earnings), Nevada has capped non-economic damages (pain and suffering, disfigurement) for each incident at $350,000. NRS 41A.035.

In some cases, negligence is presumed

There are a few cases where a defendant’s negligence will be presumed. In such cases, the burden of proof shifts to the defendant, who must show either that he or she didn’t act negligently, or that the negligence was not the cause of the plaintiff’s injuries. These situations are set out in NRS 41A.100(1):
  • A foreign substance other than a medication or prosthetic was accidentally left in the patient’s body after surgery (for example, surgical gauze).
  • An explosion or fire started in a substance used during treatment.
  • An unintended burn caused by heat, radiation, or chemicals.
  • An injury to a part of the body other than the one being treated.
  • A surgical procedure is conducted on the wrong patient or the wrong part of a patient’s body (i.e., the surgeon removes the wrong arm).
Such cases are rare, but when they happen, it’s comforting to know that the law puts pressure on the responsible professional to compensate the victim for resulting injuries.

GGRM is a Las Vegas personal injury law firm

At Greenman Goldberg Raby Martinez we provide personal, attentive service to every client. Cases of medical negligence can be complicated and involve high stakes for the professionals involved. An experienced attorney can take the bull by the horns and gives plaintiffs the best chance at recovering compensation. For a free attorney consultation, call us at 702-388-4476 or send us a request through our site.

Drowsy Driving and the Law

Drowsy Driving and the Law
We’ve all done it at some point: pushing through fatigue to keep driving despite the risk of falling asleep and causing an accident. Every year drowsy driving causes hundreds of fatalities and many more non-fatal injuries throughout the country. A tired driver can fall asleep for intervals as short as a few seconds, which is enough time for an accident to occur.

How Nevada law handles drowsy driving

A few states have enacted legislation that specifically addresses fatigued driving. For example, in New Jersey someone who drives after not sleeping for 24 hours is deemed to be a reckless driver and treated in the same way as someone who is driving while intoxicated. N.J. Stat. § 2C:11-5(a). Nevada has not enacted such a law, and the example from New Jersey suggests why. New Jersey’s measure of fatigue—24 hours without sleep—is an extreme case that doesn’t come close to capturing the full range of tired drivers. Legislating for ordinary tiredness is difficult and would be hard to enforce. As a practical matter what the lack of specific laws means is that a tired driver is held to the same standard that applies to all drivers. Every driver on Nevada’s roads has a range of legal duties. These include obeying traffic laws and rules, such as following signs and complying with signals. Drivers must give pedestrians right-of-way. And all drivers owe a general duty of care to operate their vehicles in a reasonable way to protect pedestrians, other drivers, and personal property on and around the roadway. Driving while fatigued is arguably an unreasonably dangerous way to operate a car. Breaching any of these duties can be a basis for a claim of negligence against the driver. Someone who is found liable for negligence will be responsible for paying medical bills and other damages to injured parties. Even if the driver’s insurance covers some of these expenses, the driver can expect to have long-term financial consequences as a result of the accident. In extreme cases fatigued driving may also be a crime. If a fatigued driver falls asleep and causes an accident that leads to someone’s death, the driver may be charged with vehicular manslaughter, a crime punishable by jail time and a suspended or revoked driver’s license. NRS 484B.657.

Pull over, rest, or change drivers

The essential thing to bear in mind about drowsy driving is that it’s very difficult to overcome sleepiness without taking a real break. The National Highway Traffic Safety Administration recommends pulling over to take a 20-minute nap as a good short-term solution for fatigue. It’s better to switch drivers if possible. For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped victims of car accidents recover compensation for their injuries. If you have been injured in an accident with a driver who was asleep at the wheel and you have questions about your legal options, our attorneys can help. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Accidents Involving Self-Driving Cars: How They Might Look

Accidents Involving Self-Driving Cars: How They Might Look
The advent of the self-driving vehicle promises to revolutionize transportation. As the technology gets adopted across the spectrum, from ride services to interstate trucking, accidents involving self-driving vehicles will inevitably happen. Just this month a self-driving SUV operated by the ridesharing company Uber struck and killed a pedestrian in Tempe, Arizona. When such accidents happen, the question of legal liability will always arise.

How self-driving cars work

Autonomous vehicles operate using a sophisticated system of sensors that are designed to continuously evaluate the space around the vehicle. The vehicle’s onboard computers interpret a wide range of data collected by cameras, radar, and LIDAR (Light Detection and Ranging) equipment to ensure that the vehicle can react to changing environmental conditions, including other vehicles, pedestrians, and roadway debris. The systems are designed to work in all conditions: day and night, wet and dry. The tragic accident in Tempe shows that despite their sophistication these systems still can fail to account for foreseeable road conditions. In Tempe the pedestrian who was struck and killed was slowly crossing the road while pushing a bike. The pedestrian wasn’t behaving erratically, and the car’s system should have detected her and reacted accordingly. Uber’s policy governing its self-driving cars required the vehicle’s driver (dubbed a “safety driver”) to be in control and ready to respond to an emergency at all times, but the driver was apparently not paying attention when the accident happened.

Who is liable in self-driving car crashes in Nevada?

When a self-driving car is at fault for an accident, as appears to have been the case in Tempe, there are a number of potential defendants. Nevada law allows autonomous vehicles to be tested and operated within the state provided that they are self-certified by manufacturers, developers, and operators as meeting statutory and regulatory requirements. When something goes wrong, there are several potential parties from whom a victim could pursue compensation for injuries:
  • The operator (if any) and/or owner. Even though autonomous vehicles drive themselves, they often have a human operator behind the wheel. Nevada law requires that such vehicles be equipped with safety systems to alert the human operator in the event of a system failure, and the means to disable the autonomous system when necessary. NRS 482A.080. Like all drivers, operators are required to carry liability insurance. NRS 485.185, NAC 482A.050. In cases where the car is owned by a business, like Uber, the business may be legally liable as well.
  • The designer(s) of the autonomous system. Autonomous systems can be installed in vehicles that were not originally designed with the systems in mind. When a system fails to operate as intended the designer and manufacturer of the system may be held liable under a theory of products liability. Even more than a case against the driver/operator, a products liability case will probably involve complex, technical questions, like how the specific conditions at the time of an accident may have affected the performance of sensor systems. Products liability cases may need to include a range of parties, as different developers may be involved in building the components of an autonomous system (e.g., the car’s “brain” might work properly, but the “eyes” are defective).
  • The auto manufacturer. Nevada law provides that the original manufacturer of an automobile can’t be held liable for damages caused by the failure of an after-market autonomous system that is installed by a third party. NRS482A.090. But if the manufacturer was involved in the system’s design or construction, for example by incorporating components to facilitate installation, plaintiffs’ lawyers might explore its culpability for the accident.

GGRM is watching the legal landscape for self-driving cars

The attorneys at the law firm of Greenman Goldberg Raby Martinez have broad experience with personal injury and accident cases. We are keeping close tabs on the evolution of autonomous vehicles and how they may be involved in accidents on Nevada’s roads. If you have questions about how self-driving cars may impact you, call us today at 702-388-4476 or ask us to reach out to you through our contact page.

How Greater Transparency Can Improve the Workers’ Comp Claim Process

People who are injured at work can sometimes be frustrated by the complexity of the workers’ compensation claims process. Elaborate rules and tight deadlines add stress to an already difficult situation. And in many cases it can feel like powerful forces are working against the employee, as insurers and employers take steps to protect their own interests. Greater transparency at each stage can improve the claims process.
People who are injured at work can sometimes be frustrated by the complexity of the workers’ compensation claims process. Elaborate rules and tight deadlines add stress to an already difficult situation. And in many cases it can feel like powerful forces are working against the employee, as insurers and employers take steps to protect their own interests. Greater transparency at each stage can improve the claims process. The object of workers’ compensation systems is to ensure that people injured on the job get the care they need without being driven into financial hardship. Ideally, injured employees receive personalized care that gets them back to work as soon as possible. Employers, who are required to carry workers’ compensation insurance, benefit from liability protection and, in many cases, from having workers restored to productivity. The workers’ compensation claims process is full of technical pitfalls for injured workers. Some are to preserve fairness for employers and insurers, who need to account for their risks. But others can feel arbitrary and unfair. In a transparent system the employee knows about the pitfalls before they arise, so they can be avoided or overcome. Here are some examples showing why transparency matters:
  • Missed deadlines can invalidate claims, leaving employees stranded. Perhaps the simplest and most frustrating problem an injured worker can face is a missed deadline. Deadlines are present in every step of the claims process. Initial claims for compensation must be made within 90 days of the employee becoming aware of an injury or illness. Workers also have 90 days from their claim to exercise their right to choose a different doctor from the one selected by the insurer. Although employers and healthcare providers are required to provide notice of these deadlines to employees, many either fail to give notice or bury them within paperwork in hopes that the employee will unwittingly give up rights through inattention.
  • Conflicts of interest create moral hazards for employers and insurers. Although the workers’ compensation system is designed to protect employees, its mechanisms are weighted heavily in favor of employers and insurers. An employee with a clear understanding of the competing interests involved at each stage of the process can better protect his or her own rights. This is especially true for decisions about health, from diagnosis to choice of treatments, but can also feed into the kinds of financial benefits an employee receives.
  • Workers need to understand their options if injury prevents them from resuming their old job. In serious cases where an injury leaves an employee temporarily or permanently disabled, insurers and employers will sometimes try to avoid their legal responsibilities by not offering required accommodations, mischaracterizing the employee’s disability, or other tactics. In a more transparent system, not only does the employee better understand the options available, but employers also avoid potentially costly litigation and regulatory action.
Because the claims process is often not as transparent as it ought to be, an injured worker can benefit from working with an experienced workers’ compensation attorney who has only the employee’s interests in mind. For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped injured workers in the Las Vegas area protect their rights to workers’ compensation benefits. If you have been injured at work, call us today for a free attorney consultation at 702-388-4476, or request a call through our website.

Can the Victim of a Crime File a Civil Lawsuit for Damages?

Can the Victim of a Crime File a Civil Lawsuit for Damages?
Allegedly criminal activity that causes personal injury and property damage can leave its victims with substantial costs. Authorities pursue convictions against perpetrators of violent or destructive crimes through the criminal justice system, which is designed to improve public safety and punish bad behavior. The criminal justice system is not always going to succeed in compensating the victim of a crime for financial losses. Instead, the victim may wish to pursue a civil lawsuit against the accused.

Civil lawsuits offer numerous advantages for crime victims

The criminal justice system offers victims a number of important benefits. The government pays the costs of prosecution, using its own prosecutors and other legal resources, and the authority of law enforcement agencies is brought to bear. A criminal court can order convicted defendants to pay restitution to victims as part of its sentencing process. But in some cases a civil lawsuit offers victims significant advantages, such as:
  • Personalized strategy. Prosecutors have a range of concerns beyond the needs of victims, and often make deals with criminal defendants to shorten trials and save government resources. In a civil trial the attorneys representing the victim have only one goal: to serve the interest of their clients. Having control over a case empowers victims to pursue the compensation they know they deserve.
  • Broader scope of damages. A criminal court cannot award victims damages for pain and suffering, emotional distress, or other costs that are not easily quantified. Such damages are available in civil trials.
  • Lower standard of proof. A criminal conviction can only be reached if the prosecution proves its case beyond a reasonable doubt. This is a high standard that often allows criminal defendants to escape convictions due to technicalities or clever argumentation by the defense. Civil causes of action require lower standards of proof. A plaintiff typically need only show that the defendant was liable by a preponderance of the evidence, that is, the plaintiff’s assertions are likely to be true. Perhaps the most famous example of these standards in action is the criminal and civil trials of O.J. Simpson for the murder of Nicole Brown and Ronald Goldman. Although his attorney’s famous line about the glove, “If it doesn’t fit, you must acquit,” worked in the criminal context by creating reasonable doubt in the minds of the jury, the victims’ estates successfully pursued a $25 million civil lawsuit against Simpson using the same facts.

Conviction is not required to pursue a civil case

Partly because the criminal process can take a long time and has an uncertain outcome, a civil lawsuit can be brought even when conviction is uncertain. In Nevada a criminal conviction is conclusive evidence of civil liability. NRS 41.133. Bear in mind that a plaintiff must still prove damages in a civil suit, and the defendant may still raise significant defenses even after being convicted. For example, a defendant convicted of a felony DUI could raise the argument of comparative negligence against an injured passenger to reduce the passenger’s compensation. Cromer v. Wilson, 126 Nev. 106 (2010). The decision of whether to pursue a civil lawsuit requires careful consultation with an attorney. The attorneys at Greenman Goldberg Raby Martinez have represented personal injury clients in the Las Vegas area for over 45 years. If you have been the victim of a crime call us today for a free attorney consultation at 702-388-4476, or reach us through our contact page.

Drones and Personal Injury

Drones and Personal Injury
With hobbyist drones getting cheaper all the time, more and more of them are taking to Nevada’s skies. As drones become more common, their potential for causing personal injury grows as well. A machine that’s improperly flown too low or too close to people, or that crashes into a car, can cause serious injury, especially at high speeds.

Drone operators are presumed liable for personal injuries

Someone who is injured by a drone, whether directly or indirectly, has the benefit of a burden-shifting statutory rule providing that an operator of a drone is presumed to be liable for personal injuries caused by the drone or an object dropped from it. An operator can rebut this presumption only by showing that his or her negligence was not the cause of the injury. NRS 493.060. For example, if an operator loses control of a drone and it smashes into the windshield of a car, causing the driver to lose control and crash, the operator would be legally liable for the resulting injuries unless an intervening force caused the accident. That might happen if the driver kept going despite having a drone stuck in the car’s windshield, and didn’t see a pedestrian because of the blocked view.

Nevada law restricts when and where drones can be flown

Drone operators are subject to a range of general restrictions. The general rules governing other kinds of aircraft also apply to drones, while specific rules have been adopted to address drones’ unique character. Some of the important rules are as follows:
  • A drone must be flown at sufficient altitude so that it doesn’t interfere with existing use of the land or water beneath it, and so it doesn’t pose imminent danger to persons or property.
  • Flying a drone lower than 250 feet from the ground over personal property can constitute unlawful trespass if the operator has done so before and the owner of the property has warned the operator against doing so, either in person or by posting compliant signs.
  • Drones cannot be operated within 250 feet of a “critical facility” or within five miles of an airport (unless the airport authority has given consent). Critical facilities include gas and oil processing plants, water treatment facilities, power plants, and prisons. They also include transmission lines.
  • Weapons cannot be mounted on drones. Doing so is a felony.
Most drones (other than very small ones) must be registered with the Federal Aviation Administration. In the event of an accident, the owner of a drone cannot simply “disappear” without facing penalties not only for the accident itself, but also for hit-and-run. If a drone causes injuries it’s important to take control of it to ensure that the owner can be identified. The law firm of Greenman Goldberg Raby Martinez has served personal injury clients in the Las Vegas area for over 45 years. If you have been injured by a drone our attorneys are available to answer your questions. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.

Workers’ Compensation Fraud in Nevada

Workers’ Compensation Fraud in Nevada
Committing fraud in connection with Nevada’s workers’ compensation system is a crime. Anyone in the system can potentially commit fraud. Conviction can carry hefty financial penalties, jail time, and the long-term consequences that come with a felony on one’s record. The state attorney general’s Workers’ Compensation Fraud Unit investigates suspected cases.

Injured workers must avoid committing applicant fraud

A worker who behaves dishonestly to get workers’ compensation benefits may be committing applicant fraud. Applicant fraud includes things like faking injuries, lying about pre-existing conditions, trying to pass off an injury suffered at home as work-related, or continuing to work while receiving disability wages. Workers sometimes think they can get away with these things because they are small fish in a big pond. But insurers vigilantly defend themselves against claims fraud and won’t hesitate to report suspicious activity. Bear in mind that criminal fraud requires an intentional act to deceive. Mistakes on a form or forgetfulness during a physician evaluation don’t rise to the level of fraud unless a worker decides not to correct the problem once it’s discovered. Also remember that the no-fault nature of workers’ compensation means that an injury suffered while working is covered regardless of whether the employee’s negligence caused the injury. It’s important to tell the truth about what caused the injury; lying to hide mistakes may not only threaten a fraud charge, it may also place one’s coverage at risk.

Insurers and health care providers can commit fraud, too

An insurer or doctor’s office can commit fraud as well. Insurers commit fraud by deliberately undermining a worker’s claim to avoid costly payouts. Of course, an insurer will often work hard to find excuses to deny claims, and once it finds a defensible rationale it will reduce or eliminate an injured worker’s benefits with the expectation that the worker will not have the resources to fight the decision. Sharp business practices, by themselves, aren’t fraud. Like applicant fraud, insurer fraud requires a deliberate, dishonest act. A health care provider can also commit fraud to rack up unwarranted fees. It can do this in a variety of ways, many of which will be invisible to the worker (lying on reimbursement forms, for example) while others may give the worker reason to be suspicious (ordering unnecessary treatments or dragging treatment on well after the incident). Workers must take care not to become part of a fraudulent scheme by an insurer or health care provider. Paying attention and asking questions can go a long way toward avoiding becoming a part of a criminal enterprise. If something doesn’t seem right, don’t hesitate to reach out to the attorney general’s office or consult with a personal lawyer.

Workers are not alone

The law firm of Greenman Goldberg Raby Martinez represents workers’ compensation clients in the Las Vegas area. If you think you may be the victim of workers’ compensation fraud and would like to talk to an attorney about your legal options, we are happy to help. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.

Mental Health and Workers’ Comp in Nevada

Mental Health and Workers’ Comp in Nevada
Mental health challenges can affect someone’s ability to work and even make day-to-day living difficult. Treatment tends to take time, involves a lot of visits with therapists and other specialists, and ultimately can cost a great deal of money. Some mental health problems can arise in connection with work. When that happens, workers’ compensation insurance may offer financial relief.

Establishing the relationship between mental illness and work

For a disease to qualify for workers’ compensation insurance in Nevada it must arise out of or in the course of employment. This requirement poses a challenge for people suffering from many kinds of mental health issues. An insurer faced with a claim for expenses relating to mental health has a strong incentive to find that the illness had a cause that was unrelated to work. In some ways a mental health problem can be analogous to physical injury. Someone who falls at work because of a knee that was injured in a skiing accident may face a difficult fight with an insurer. The same can be true for someone whose mental health condition arose from non-work causes, like a genetic predisposition or substance abuse. In the early stages of a claim an insurer will require the worker to undergo evaluation by a specialist chosen by the insurer. Quite often an insurer chooses specialists who it knows are more likely to diagnose a less serious condition or determine that the condition had a cause that wasn’t related to work. Workers need to take steps to exercise their right to select a doctor who will be more attuned to the patient’s needs.

Specific events can strengthen a case

It can be easier to show that a mental health condition is job-related if its cause can be traced to a specific event. Some kinds of mental health problems can be related to exposure to toxic substances like mercury or pesticides. The science establishing the connection between toxins and mental health is relatively new, which may lead to complex coverage disputes. Other problems arise because of a specific stressful event, such as witnessing a traumatic workplace accident or experiencing an especially violent incident. NRS 616C.180 specifically provides that workers’ compensation benefits will apply to treatment for “mental injury caused by extreme stress in times of danger.” Establishing causation for conditions like post-traumatic stress disorder can be relatively straightforward, but is not free of potential roadblocks.

An experienced attorney can defend your rights

Getting workers’ compensation benefits for job-related mental health difficulties can be hard without an experienced advocate. For over 45 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area in the areas of workers’ compensation and personal injury. If you have questions about how to pursue a workers’ compensation claim for job-related mental health issues, please reach out to us today for a free, confidential attorney consultation. Call us at 702-388-4476, or send us a request through our site.

Medical Marijuana and Wrongful Termination

Medical Marijuana and Wrongful Termination
Nevada law has allowed the use of marijuana for medical purposes since 2001. Holders of valid, state-issued medical marijuana identification cards have certain rights beyond those of users under the state’s law decriminalizing recreational use. Among these are certain protections in the workplace, but these protections have important limits. Nevada law requires employers to “attempt to make reasonable accommodations for the medical needs of an employee who engages in the medical use of marijuana.” NRS 453A.800. The statute provides that an accommodation needn’t be made if it poses a threat of harm to people or property, imposes an undue hardship upon the employer, or would prevent the employee from completing his or her job responsibilities. Unlike the Americans with Disabilities Act (ADA) and other laws that require employers to make reasonable accommodations for protected traits, Nevada’s medical marijuana law requires only that employers “attempt” to make such accommodations. Between the “reasonable business purposes” exception and the “attempt” proviso, an employer has ample room to fire an employee after only a half-hearted effort to find a workable accommodation. This may mean that an unscrupulous employer might fire an employee after engaging in an empty, bad faith compliance exercise. Employees fired in this circumstance needn’t accept it. There are other significant limits to an employer’s obligations to accommodate an employee’s medical marijuana use. Employers are not required to allow the use of medical marijuana in the workplace. And an employer is also not required to modify a job or an employee’s working conditions if they are based upon the employer’s reasonable business purposes. Though a “reasonable accommodation” might be to allow an employee to use marijuana in a designated spot, an employer might conclude that an employee’s job isn’t compatible with being under the influence. These are close questions. Some employers are likely to be more accommodating than others. Bear in mind that federal law still outlaws the use of marijuana for any purpose. Even though state laws permit medical use, federal laws that address healthcare rights don’t extend to marijuana. Federal antidiscrimination laws like the ADA therefore do not protect workers from being fired solely because they use marijuana to treat a medical condition. On the other hand, an employer might still violate the ADA if it uses an employee’s medical marijuana use as a pretext to discriminate against a protected disability. Given the conflict between federal and state law, marijuana has an awkward legal status that creates ambiguities for employers and their employees who use it to treat medical conditions. An employee who gets fired due to medical marijuana use should consult with an attorney to explore whether the termination was wrongful. The law firm of Greenman Goldberg Raby Martinez defends the legal rights of clients in the Las Vegas area. Call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Employer Obligations to Secure Employee Privacy Against Cyber Attacks

Employer Obligations to Secure Employee Privacy Against Cyber Attacks
Major data theft has become a fact of life in the digital age. When an employer suffers a security breach and loses sensitive information about its employees, employees can face long-term problems with identity theft and violated privacy. But does a Nevada employer face legal liability to its affected employees when such a breach occurs? The law is unclear.

Distinguishing between deliberate disclosures and unlawful data breaches

Employers are required to maintain the confidentiality of a wide range of employee information. For example, under federal and state law, health records must be scrupulously kept apart from other information, with access limited only to appropriate individuals. Employees are entitled to an expectation of privacy regarding other records as well. An employer shouldn’t leave documents with wage information lying around for anyone to look at. These kinds of restrictions generally prohibit deliberate disclosures of information. In the context of a data breach, in which an outside actor unlawfully breaks into a company’s computer system and steals information, the employer has not deliberately disclosed anything. An employee whose information is stolen must rely on a different theory to recover compensation. One possibility is negligence.

An employer’s duty to protect employee information from theft

Cases addressing this question have thus far shown that proving negligence can be a challenge for employees affected by data breaches. Among other things, proving negligence requires a plaintiff to show that a defendant breached a legal duty of care, and as a consequence caused the plaintiff to suffer a compensable loss. In Castillo v. Seagate Tech., LLC, 2016 U.S. Dist. LEXIS 187428 (N.D. Cal. 2016), employees sued an employer for negligence after the employer disclosed W-2 information to a third party that requested it using a malicious phishing scheme. The hackers used employee data to file fraudulent tax returns. Significantly, the court held that the employer owed its employees, together with their spouses and dependents, a legal duty to protect their personal information against foreseeable attempts to steal it. But the court went on to find that many of the employees in the case hadn’t shown that they’d suffered compensable damages as a consequence of the employer’s breach of duty. In short, even though the company owed its employees a duty to prevent theft of their personal information, the employees couldn’t sue for negligence without showing that the theft resulted in real costs. It’s not clear whether a Nevada court would follow the logic of Castillo to impose a similar legal duty upon employers to protect employee records. Courts elsewhere have not imposed such an obligation under similar circumstances. For example, in Dittman v. UPMC, 154 A.3d 318 (Sup. Ct. Pa. 2017), a Pennsylvania court held that an employer had no legal duty to protect electronic records against an attack unless the likelihood of such an attack was well understood, for example because the employer had suffered a similar attack in the past.

Talk to an attorney if your information has been stolen

Talking to an attorney is an important step for employees who have had their personal information stolen from an employer’s systems. The attorneys at Greenman Goldberg Raby Martinez provide personalized, caring guidance to clients in the Las Vegas area. We are happy to explain your legal options for seeking compensation after an employer data breach. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.