A plastic surgeon’s mistakes can have terrible consequences for a patient. Whether a surgery was conducted to repair a cosmetic problem introduced by a health crisis (scars from another surgery, an injury from an accident) or purely elective, a botched operation can lead to pain, disfigurement, further surgeries, and unanticipated medical bills. Someone who has been injured due to the negligence of a plastic surgeon may have the option of filing a lawsuit to recover compensation for these and other costs associated with the surgeon’s mistakes.
Building a claim of professional negligence against a plastic surgeon
One of the common causes of action for patients who are injured by doctors is professional negligence
. A professional negligence claim is grounded in an assertion that the plaintiff’s injury was caused by a plastic surgeon’s failure to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced surgeons. NRS 41A.015
, NRS 41A.100. A failure to use reasonable care might involve a procedural oversight during an operation, a lack of consideration for a specific health condition of the patient, or a failure to use generally accepted methods.
Nevada law provides a few specific situations where the plaintiff enjoys a presumption that the defendant doctor was negligent, largely where the plaintiff’s injury couldn’t have been caused but for the surgeon’s negligence. This exception will apply if the surgeon operates on the wrong limb, leaves objects inside the plaintiff’s body, or injures a part of the body other than the part that was operated upon. NRS 41A.100(1).
A professional negligence claim also must be accompanied by a sworn affidavit of a medical professional who concurs with the plaintiff’s medical assertions regarding the defendant’s negligence. NRS 41A.071. The professional who provides the affidavit must be in a similar line of work as the defendant, and must base his or her opinion on a detailed review of the facts of the plaintiff’s injury. The affidavit requirement fulfills important functions: it reduces the likelihood of frivolous claims while providing courts with an independent verification of the scientific or technical basis of claims. It also makes the initial process of filing a claim more expensive, because the independent expert must be compensated for the time they take to review the case and draft a response.
Defenses to professional negligence
A plastic surgeon who is sued for professional negligence will likely raise a number of defenses that the plaintiff must overcome to recover compensation.
- The surgeon’s skill was reasonable. The law’s allowance for professionals to use “reasonable” judgment when making health care decisions for their clients leaves them with wiggle room to avoid liability in close cases. It isn’t enough that other plastic surgeons wouldn’t do things the way the defendant does them. Nor is it enough that the surgeon doesn’t follow the latest and greatest practices across the board (unless the new practice is so much better for patients that continuing to use the old method is needlessly dangerous). The defendant’s actions must have had a degree of wrongfulness that takes them beyond the scope of what is “reasonable.” Proving this can require a careful analysis.
- Intervening cause. Sometimes an injury from an operation isn’t obvious until sometime afterward. Any number of things could intervene to cause an injury or make one worse. A patient who doesn’t follow post-operation instructions may have contributed to an infection.
- Assumption of risk and waivers. Plastic surgeons may ask their clients to waive certain rights or agree that they are assuming the risk that a surgery will not produce the results that the patients hope for. The enforceability of such waivers will need to be evaluated by the plaintiffs’ lawyers.
Talk to a Las Vegas attorney about your plastic surgery complications
The attorneys at Greenman Goldberg Raby Martinez help injured clients in the Las Vegas area recover compensation for their injuries. If you have been injured by a plastic surgeon’s negligence and you would like to speak to an attorney about your legal options, please contact us for a free attorney consultation. Call us at 702-388-4476 or send us a request through our site
The medical implant industry has seen enormous growth as technology has advanced. Some operations, like joint replacements, have become routine. But sometimes an implant fails to work as advertised, or it contains a significant defect that poses serious risks to the patient’s health. In recent years a number of problems with some hip implants
have caused metal fragments to escape into patients’ bodies, leading to serious side effects and large lawsuits. In such cases, an injured patient may be able to recover under a products liability theory. In other cases, where the individual surgeon improperly installed an implant, the patient may be able to recover under a professional negligence theory.
Products liability for medical implants
In an ordinary products liability case the plaintiff must show that the defendant—in the case of medical implants, most likely the manufacturer—negligently designed the product. The difficulty of a plain negligence claim is that the burden rests upon the plaintiff to prove that the defendant was negligent. That can be especially difficult in cases involving highly technical products like medical devices.
If the plaintiff can meet the requirements for a strict products liability claim, the burden shifts to the manufacturer to prove that its product was not defective. A strict liability case requires the plaintiff to make a preliminary showing of five things:
- The defendant was the manufacturer or marketer of the product.
- The product was defective.
- The product’s defect existed when it left the defendant’s possession (in other words, it wasn’t damaged by the surgeon when it was installed).
- The plaintiff used the product in a way that was reasonably foreseeable by the defendant.
- The defect caused the plaintiff’s damages.
For medical implants, many of these elements will be fairly straightforward. The most challenging one to prove will be the product’s defectiveness. That’s in no small part because the implant is inside the plaintiff’s body. Things can get easier if the implant was removed and the defect discovered after removal. In some cases the product’s defect may come to light as many other patients begin to suffer similar problems.
Professional negligence cases against surgeons and others
In some situations the manufacturer of an implant is not responsible, or at least not solely responsible, for the patient’s injury. In cases were the installing surgeon failed to follow proper procedures or made mistakes, the patient may bring suit for professional negligence (more popularly referred to as “medical malpractice”).
A professional negligence claim is based on the idea that the defendant doctor failed to use reasonable care, skill, or knowledge ordinarily used under similar circumstances by a similarly trained and experienced professional. NRS 41A.015. Among other things, the plaintiff in such a case must provide the written affidavit of a doctor who practices in a similar field to the defendant, attesting to the defendant’s negligence.
GGRM is a Las Vegas personal injury law firm
Injuries from medical implants can be painful and expensive. Working with a local law firm to resolve the issue is important for anyone suffering from implant problems. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented personal injury 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
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
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.
- 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.
- 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.
- Mandatory settlement conference. Before a professional negligence case goes to trial the parties involved must come together for a judicially administered settlement conference.
- 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.
- 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.
- 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