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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.