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Alternative Medicine and Professional Negligence

“Alternative medicine” is a term encompassing a loosely defined collection of medical and pseudo-medical approaches to solving health problems. It includes familiar treatments like chiropractic and acupuncture, as well as more obscure approaches using healing crystals and herbs. Therapies are labeled as “alternative” if they are not used by mainstream medical professionals. One reason a treatment can be labeled alternative is because its clinical effectiveness isn’t settled. Someone who is injured by an alternative medicine professional’s negligence may have legal recourse to recover compensation.

Nevada’s professional negligence statute covers some kinds of alternative medicine

Nevada law allows lawsuits against providers of health care for damages arising from an injury or death caused by the provider’s professional negligence (what used to be called “medical malpractice”). The definition of “provider of health care” captures some kinds of alternative medicine practitioners, but not all. It includes:

  • licensed physicians, optometrists, dentists, and other conventional health care providers
  • licensed psychologists
  • chiropractors
  • doctors of Oriental medicine licensed pursuant to NRS Chapter 634A to practice acupuncture, herbal medicine, and other practices regulated by the State Board of Oriental Medicine.

Provided that a health care provider falls within these categories, a professional negligence suit is the appropriate remedy for injuries they cause. Professional negligence claims are subject to special rules, such as a requirement that the plaintiff obtain an affidavit signed by another professional in the same or similar profession as the defendant who attests to the defendant’s negligence. Professional negligence lawsuits are subject to a cap on noneconomic damages.

Alternative medicine outside the scope of professional negligence

Some practitioners of alternative medicine practices are not recognized as “providers of health care” within the scope of Nevada’s professional negligence statute. In practice this may mean that injuries caused by such practitioners fall within conventional negligence. Because professional negligence statutes are designed to protect health care professionals from some kinds of liability, it’s to a plaintiff’s advantage if the defendant isn’t covered. The professional negligence statute’s damages cap and other technical requirements won’t apply.

Patients who are considering using the services of an alternative medicine practitioners should use caution. The practitioner’s insurance should be scrutinized with care. Patients should not sign contracts with liability waiver language without first understanding the risks involved in a procedure. A treatment involving healing crystals may involve little inherent risk, but a treatment using herbs or chemicals that fall outside recognized norms may cause serious injury. Some practitioners may be committing fraud, violating licensing laws, or exposing their patients to dangerous situations.

GGRM is a Las Vegas medical malpractice law firm

The attorneys at Greenman Goldberg Raby Martinez provide personal, attentive service to clients in the Las Vegas area. If you have been injured by an alternative medicine treatment 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.

Cognitive Bias in Medical Diagnoses

Cognitive bias is a common characteristic of human psychology. The idea is that people like to be right, and will sometimes perceive information in a way that confirms their existing ideas about the state of things, when the objective truth may be something different. Cognitive bias can influence behavior in all sorts of circumstances, many of which pose little risk of harm. But when a medical diagnosis is made in reliance on perceptions that are clouded by cognitive bias the outcome for patients can be life threatening.

Cognitive bias in the medical profession is a known problem. The bias itself can come from many sources. A doctor may have a disposition against diagnosing serious illnesses and will prefer to diagnose milder alternatives: interpreting heart failure as indigestion. Or a doctor may concentrate on a specialty that unwittingly blocks out alternatives: a heart surgeon who recommends a pace maker for a patient with an endocrine imbalance.

People who tend to think in biased ways can learn to overcome them. Members of the medical profession have a high ethical obligation to recognize their own biases and adapt their diagnostic approaches to account for them. But to actively address a bias it’s first necessary to know about it and understand how it works. That can be difficult even for people who have a profound need to do it.

As a consequence, cognitive bias can introduce significant inaccuracies into medical diagnoses. At the point of treatment a patient should be on guard against signs that a particular approach is being taken not because it is the right one but because it is the one that the doctor prefers out of what may be an unconscious motive. Patients also need to be careful about avoiding cognitive biases of their own: it may be tempting to prefer the heartburn diagnosis, but if it means ignoring a blocked artery the risk of death quickly increases.

If a medical diagnosis leads to a patient’s serious injury or death the patient or the patient’s next of kin may have the option of suing for professional negligence. To prevail a professional negligence lawsuit must prove that the treating doctor failed to use reasonable care ordinarily used under similar circumstances by similarly trained and experienced providers of health care. NRS 41A.015. In the course of litigation it may be revealed that the misdiagnosis arose from bad judgement that might be traced back to an instance of cognitive bias. Expert testimony can be used to establish the extent to which the misdiagnosis was far enough out of the norm to constitute negligence.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in professional negligence cases. If you or a loved one has suffered harm as a consequence of medical misdiagnosis, please call us today for a free attorney consultation. We can be reached at 702-388-4476 or through our contact page.

Patient Advocates as Witnesses in Professional Negligence Lawsuits

People who are hospitalized with serious illnesses and injuries often can benefit from having an advocate—a family member, friend, or even a paid professional—who looks out for the patient’s interests. Advocate can help to improve patient care in a number of ways. They serve as intermediaries between hospital staff and the patient, helping to resolve confusion and answer questions that the patient may not be able to answer. They help the patient evaluate treatment options. And they keep an eye on how well the patient is being treated.

If a patient is injured during a hospital stay the advocate may also become an important witness in any ensuing litigation against the hospital or its doctors for professional negligence (a.k.a. medical malpractice). An advocate need not have medical training to offer essential insights into events leading to the patient’s injury. This is especially true if the patient is not capable of testifying to the facts of the case, for example because the patient has severe dementia.

For a patient advocate the focus of time in the hospital should naturally be on ensuring that the patient is getting the best care possible. Anticipating litigation isn’t the advocate’s job. But there are things advocates routinely do that can help attorneys should the need arise. Keeping good notes is a valuable step. Notes can record the treatment options that have been offered, diagnoses, medications, and so on. They can also include the names of the people involved in the patient’s care. Some of these details will be reflected in the hospital’s formal logs, but other details may slip through and only be available in the advocate’s notes.

If litigation becomes necessary the advocate’s role as a witness likely will focus on the facts surrounding the patient’s care. The advocate who has served as the patient’s eyes, ears, and voice during the treatment process now serves, in a sense, as the patient’s memory.  Who made decisions, and when? How did staff respond to emergencies? What questions were asked? Having access to answers like these from a witness who is not tied to the hospital or other defendants can be extremely valuable in developing a case.

An advocate isn’t going to be asked to give opinions about medical matters. A professional negligence claim often rests on failures by defendants to follow established protocols. The claims need to be backed up with affidavits and testimony from experts who are qualified to speak about the defendant’s specific field of practice. The advocate may be asked to help an expert witness analyze the case to determine if negligence has happened.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. We are happy to answer your questions about potential professional negligence in a hospital setting. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

A Marijuana Dispensary’s Liability for Negligent Sales

With the decriminalization of recreational marijuana in Nevada much of the conversation about the topic of marijuana use and sales has shifted to the nonmedical side of the business. But medical marijuana has been an important resource for patients who have been prescribed its use under Nevada’s 2001 law authorizing its use. Like a conventional pharmacy, a medical marijuana dispensary can make mistakes that can have serious consequences for patients.

Medical marijuana dispensaries are required to follow a range of protocols designed to prevent unauthorized sales and protect patients from improperly tested products:

  • Dispensaries may only sell to individuals holding valid medical marijuana cards issued by the Nevada Division of Public and Behavioral Health. The DPBH maintains an online registry of cardholders, meaning there is even less of an excuse for dispensaries that run afoul of this rule.
  • Nevada law requires dispensaries to have all of their products tested by an independent testing laboratory prior to their sale to patients. These labs are required to test every product (including edible products) for four things: (1) the concentration of active ingredients in the product, (2) the presence and identification of molds and fungus, (3) the composition of the product, and (4) the presence of chemicals, including pesticides and herbicides. NRS 453A.368.
  • Every product sold by a medical marijuana dispensary must be labeled with disclosures about the source of the marijuana used in the product, the product’s potency, and other information.

A well-run dispensary shouldn’t ever make obvious errors like dispensing to a patient who does not have a lawful medical marijuana card. But one can imagine various ways that a dispensary could make errors or, out of lack of caution or neglect, dispense the wrong product. A patient who is expecting a relatively low-dose product but instead receives a high potency one could experience overdose symptoms, including panic attacks, confusion, and increased heart attack risk.

When such mistakes occur the patient who is injured by them should contact a personal injury attorney as soon as possible. The personal injury attorney will need to have as much information as possible about the incident as well as the patient’ medical condition. The physician who issued the medical marijuana prescription will be an important resource in developing the case, in part because the patient may need to establish a “base line” against which the effects of the improperly dispensed product can be compared.

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. If you have been injured as a consequence of negligent actions by a marijuana dispensary, call us today for a free, confidential attorney consultation. We’re available at 702-388-4476 or contact us through our website.

Pharmacy Mistakes Can Threaten Patient Health

Like other people in the medical services field, pharmacists are highly trained, licensed, and regulated professionals. Their work requires a constant attention to detail. Providing the wrong dosage or the wrong medication can lead to serious consequences for the patient. In some cases pharmacy errors have even caused patients to die.

Pharmacies face a lot of challenges when it comes to getting things right. The list of potential sources of errors is long:

  • The names of different medications can be confusingly similar.
  • Pills of two very different drugs may look the same.
  • Hand-written prescriptions can be notoriously hard to decipher, with abbreviations and other shorthand increasing the risk of errors.
  • In the fast-paced environment of a pharmacy, it can be easy to get disorganized, make storage mistakes, or accidentally skip necessary safety steps.

Strict policies and procedures can reduce the risk of mistakes, but pharmacists are human and errors still happen. When they do, and the patient suffers a serious injury as a consequence, a lawsuit may be necessary to recover compensation for the costs associated with the injury or, in the worst case scenario, the costs of the patient’s wrongful death.

Pharmacists and their employers may be held civilly liable for malpractice. As specially trained professionals, pharmacists owe patients a high duty of care. This duty extends to all aspects of filling a prescription, including:

  • Verifying that the prescription is valid, lawful, and complete. As the last line of defense, pharmacists also need to be ready to catch mistakes in a prescription, such as accidentally high doses.
  • Accurately filling the prescription.
  • Providing the patient with complete, accurate information about the medication and its use, including information about side effects and potential interaction with other medications the patient is taking.

If a pharmacist fails to fulfill these duties and the patient suffers an injury as a result, a lawsuit may be appropriate. The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and professional negligence cases for over 45 years. If you or a loved one has been injured as a consequence of mistakes by a pharmacy, please give us a call today for a free attorney consultation. We can be reached at 702-388-4476 or through our contacts page.

Suing for Dialysis Treatment Mistakes in Nevada

People who suffer from kidney problems often need to resort to dialysis treatment to preserve their health. Dialysis involves running the patient’s blood through a machine that replaces the filtering function ordinarily performed by the kidneys. Depending on the type of dialysis a patient receives, the process may be repeated anywhere from once or more per day to two or three times a week. In the course of treatment complications can arise that can lead to serious health problems or even death. In some cases the mistakes that lead to such complications can form the basis of a lawsuit for professional negligence.

What are the risks of dialysis?

There are three types of dialysis. The most common, hemodialysis, uses a machine outside the patient’s body. Peritoneal dialysis involves an implanted catheter that allows waste materials to be filtered through a membrane in the abdomen. A third type, continuous renal replacement therapy, is an in-patient procedure for patients with acute kidney failure. Each type of dialysis involves some form of surgery, to implant a catheter or other medical equipment that will allow blood or waste to be removed from the body.

There are a range of common complications from dialysis treatment. Many complications are an unavoidable side effect of the treatment itself. For patients undergoing hemodialysis, problems like low blood pressure, anemia, and cramping are common. As with any surgical procedure, there is a risk of infection at the entry site.

Potential mistakes during dialysis

Some complications from a procedure like dialysis may be unavoidable, but others are caused by mistakes by the medical professionals administering the treatment. For a mistake to serve as the basis of a lawsuit in Nevada the plaintiff must prove a number of things, including that the defendant failed 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. In the case of dialysis, such mistakes might include:

  • Failure to operate the dialysis machine in accordance with manufacturer specifications or in accordance with physician instructions.
  • Improper sanitation procedures that result in infections.
  • Failure to adequately maintain equipment in safe operating condition.
  • Improper administration of medications.
  • Failure to adequately monitor the patient during the course of treatment.

Someone who is injured by a mistake like this may require immediate emergency medical attention. In addition to the costs of emergency care, the patient is likely to suffer both physically and emotionally. It is often a good idea to consult with an attorney as soon as possible following discovery of a significant medical error to determine if there is a case for seeking compensation for such injuries.

GGRM is a Las Vegas personal injury law firm

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have represented clients in the Las Vegas area in personal injury cases. If you or a loved one has been injured due to mistakes during dialysis treatment we are happy to discuss your case with you. Call today for a free attorney consultation at 702-388-4476 or request a call through our website.

Hernia Mesh Litigation Update

In recent years manufacturers of hernia meshes have come under legal scrutiny for complications arising from the implants. Hernia meshes function by adding support beneath and around weakened tissues that have allowed an organ to squeeze through, creating a painful hernia. They can be made from a range of substances, including synthetic fibers and animal tissues, and can have a few different forms. A properly functioning mesh can treat a hernia and prevent it from recurring.

But some patients have discovered that their hernia meshes have not performed as advertised or have had design defects that may be responsible for a range of complications. Plaintiffs in lawsuits against Atrium (maker of the C-QUR mesh) and Ethicon (maker of the Physiomesh) have raised a range of complaints against the manufactures. The problems related to hernia meshes have included pain, infection, migration (implants moving from their original locations), physical collapse of the implant, bowel obstruction, and even damage to nearby tissues and organs. In many cases serious complications require additional surgery.

Hernia mesh lawsuits often raise a number of specific claims that are common in products liability cases involving medical devices. Among other things, the lawsuits often argue that the manufacturers knew about the complications that were possible with their devices but didn’t disclose those risks to patients. Plaintiffs also may argue that the manufacturers failed to follow legally mandated safety processes to ensure that their products performed safely.

Over the years the U.S. Food and Drug Administration has received numerous complaints about complications from hernia mesh implants. Some products have even been recalled for safety reasons, forcing patients to endure new surgeries to replace the recalled mesh.

For patients who have received hernia mesh implants there are a number of important steps to take:

  • Keep an eye on product recalls and news about your implant’s make and model.
  • Notify your doctor about any complications you experience as soon as possible so that any serious problems can be addressed quickly.
  • If you do suffer a serious complication, talk to an attorney as soon as possible to ensure that your legal rights are protected.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured clients recover compensation for cases involving defective products. If you have questions about your legal options to seek compensation for problems associated with a hernia mesh, call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Failing Knee Replacements Leading to More Lawsuits

A defective joint replacement can cause severe pain and lead to additional surgeries and recovery time. It can also cause or worsen trip-and-fall accidents. In recent years patients who have received certain knee replacements have been pursuing products liability claims against the replacements’ manufacturers.

There are several types of knee replacement, all of which involve the surgical installation of hardware to replace or supplement the knee’s natural structures. In a total knee replacement, the most common type, the surfaces of both the thigh and shin bones are replaced using implants that are attached to the bones themselves. Implants are often attached to the bone using a specialized glue called bone cements.

Patients who have had knee replacement surgery can suffer a range of potential complications after surgery. Some complications are typical of medical procedures in general: infections, challenges with healing, slow restoration of movement, and so on. But some types of complication are specific to way implants are made or designed. Implant problems can also arise from improper installation by the surgeon. Surgical mistakes can include misalignment of the implants, among other things.

An example of lawsuits against implant manufacturer DePuy. Plaintiffs have sued DePuy for problems with its Attune knee replacement hardware. Some patients have experienced loosening of the bone cement intended to keep the hardware in place. As the cement loosens, patients experience pain and instability in the affected knee, and can require additional surgery to correct the problem.

Nevadans who have suffered complications from a defective knee replacement may have a legal claim against the manufacturer of the implant for products liability. In some cases the patient may also have a claim against the surgeon who performed the operation. Quite often plaintiffs can benefit from pooling their resources in a class action. As one might expect, medical cases involve complicated facts that need to be analyzed by an attorney to determine the best course for the client.

If you are suffering with complications from a defective knee replacement consider consulting with an attorney to understand your legal options. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury, products liability, and medical malpractice cases. Call us today for a free attorney consultation at 702-388-4476 or send us a request through our site.

Plastic Surgery Malpractice in Nevada

Plastic Surgery Malpractice in Nevada

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.

Suing for Defective Medical Implants

Suing for Defective Medical Implants

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:

  1. The defendant was the manufacturer or marketer of the product.
  2. The product was defective.
  3. 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).
  4. The plaintiff used the product in a way that was reasonably foreseeable by the defendant.
  5. 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.