Misdiagnosis of an illness can have serious consequences for the patient. Not only can the patient end up being treated for the wrong disease, potentially at substantial cost and discomfort, but the real problem can go untreated and get worse. For example, a blocked artery misinterpreted as heartburn can leave the patient exposed to grave injury or death. In some circumstances, a misdiagnosis can be a form of professional malpractice for which compensation can be sought in the courts.
The key question is whether misdiagnosis is negligence
Under Nevada’s professional negligence laws, the central issue that a plaintiff must show in most cases is that his or her licensed health care provider, such as a physician or dentist, was negligent in performing professional services. Professional negligence is defined as a “failure . . . to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” NRS 41A.015. There are several elements of this definition that come into play in the context of a misdiagnosis:
- Reasonableness. A doctor is only expected to apply a reasonable level of care, skill, or knowledge to treating patients. Whether a given approach was reasonable is evaluated, as much as possible, by objective standards. For example, a patient who complains of constant fatigue might reasonably be diagnosed with a sleep problem, even though she is also carrying an undiagnosed cancer. On the other hand, it might be unreasonable for a physician to fail to screen a patient for cancer if the patient exhibits a number of symptoms and risk factors.
- Ordinary care. A doctor needn’t take every possible step to evaluating a condition. For example, perhaps it is not the customary process to order an MRI for an otherwise healthy twenty-something who presents all the usual symptoms of migraines, which could leave a brain tumor undetected. On the other hand, negligence may apply if the ordinary procedure in that situation is to order a precautionary MRI and the doctor fails to do so.
- Comparison to other professionals. The defendant’s actions are measured according to his or her training and experience. This can have important consequences: a relatively junior professional may be evaluated differently than a seasoned expert, and a highly trained specialist will be treated differently than a generalist.
Technical barriers to recovery
A plaintiff in a professional negligence case must present a sworn affidavit by a professional who works in the same field as the defendant. NRS 41A.071. The affidavit must attest to each of the components of the definition of professional negligence. In other words, the plaintiff must find another doctor who is willing to give an opinion that the plaintiff’s doctor behaved negligently. In addition to the challenge of crafting an effective affidavit, this requirement can pose a practical challenge. For example, if the defendant works in a narrow specialty it may be difficult to find another doctor who is sympathetic to the plaintiff’s case and believes that the defendant didn’t act reasonably.
Anyone considering a medical malpractice suit in Nevada should bear in mind that state law requires such suits to be brought within three years of the cause of the injury, or one year from the discovery of the injury, whichever is earlier. NRS 41A.097(2). In medical malpractice cases Nevada limits a plaintiff’s noneconomic damages, such as for pain and suffering or emotional distress, to $350,000. NRS 41A.035.
GGRM is a Las Vegas personal injury law firm
The attorneys at the law firm of Greenman Goldberg Raby Martinez have broad experience with medical malpractice lawsuits. If you are suffering from the consequnces of a misdiagnosis and are wondering if you have a case, we are happy to talk you through your options. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page
Some employers, especially in the health care industry, have started requiring their employees to get annual flu shots. Even though the flu vaccine has a lot of benefits both for the patient and the population at large, some people can experience serious side effects
. These range from fever and nausea to allergic reactions and, in rare cases, serious conditions like Guillain-Barré syndrome
. An employer mandate can feel unfair for employees who are concerned about the risks of vaccines or object to them on religious grounds. But if an employer terminates an employee for refusing to comply with a mandatory vaccine policy, does the employee have legal recourse?
At-will employment gives employers leeway
Nevada is an at-will employment state, which means that an employer ordinarily can terminate an employee with or without cause. There are exceptions to this general rule for employees who work under a contract, such as collective bargaining agreements, where the terms of the contract will override the default, at-will rule. But absent an arrangement that spells out when and how an employee can be fired, an employer is free to terminate an employee at any time.
Failure to comply with a condition of employment, such as a requirement that all employees get the flu vaccine, may give an employer cause for firing an employee. For the employee, being fired for cause could have consequences beyond just losing the job, such as affecting eligibility for retirement benefits. As a consequence, an employee who objects to a mandatory vaccine may be placed in a difficult position.
Responses to a mandatory flu vaccine
Employees who object to their employers’ mandatory vaccine policies have started taking the issue to the courts, either directly or with the help of the U.S. Equal Employment Opportunity Commission (EEOC). These cases have raised several potentially strong legal arguments in favor of employee choice:
- Disability. An employee who can show that a vaccine may have negative side effects related to an existing disability may have a good argument that the employer must grant a reasonable accommodation under the Americans with Disabilities Act (ADA).
- Pregnancy. A pregnant employee may be able to refuse a vaccine on grounds that other employees have been granted exceptions for other medical reasons. The federal Pregnancy Discrimination Act prohibits unequal treatment of pregnant employees on the basis of their pregnancy. Pregnant employees may also qualify for disabilities under the ADA in some circumstances, such as if they are suffering from gestational diabetes.
- Religious convictions. An employee with sincerely-held religious beliefs that prohibit the use of vaccines may be entitled to reasonable accommodations under Title VII of the Civil Rights Act of 1964, so long as the accommodation does not present an undue hardship to the employer. Note that Title VII does not apply to purely secular objections, such as those based on particular scientific studies or non-religious personal convictions. See Fallon v. Mercy Catholic Med. Ctr., 977 F.3d 487 (3rd Cir. 2017).
- Privacy. Under the federal Health Insurance Portability and Accountability Act (HIPAA) most types of health care provider are required to keep confidential the health records of their patients. Employers are only entitled to such information in limited circumstances. In many situations, the administration of a flu vaccine in the workplace, such as by a third-party contractor, will fall outside HIPAA, but under the right circumstances a health care provider advising an employer that an employee refused a vaccine could violate the employee’s HIPAA rights.
GGRM serves the Las Vegas community
For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area protect their legal rights and recover compensation for injuries they have suffered. If you have lost your job for refusing to comply with a mandatory vaccination policy and would like to understand your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website