Nevada Medical Malpractice Summary
Statutes of Limitations
Any medical malpractice action for personal injury or wrongful death must be brought within four years from the date of injury, or two years from the date the injury was or should have been discovered, whichever is earlier. Nev. Rev. Stat. Ann. § 41A.097 (Michie 1996).
Parents or guardians of a minor claimant must determine if a cause of action should be filed against a health care provider and are governed by the above-noted period. Id. However, in actions involving brain damage or birth defects, the limitation is extended until the child reaches ten years of age. A claim for sterility may be brought within two years from the time the child discovers the injury. Id. If the individual is insane or a minor ward of the state at the time of the injury, the statute is tolled until the disability is lifted. Nev. Rev. Stat. Ann. § 11.250 (Michie 1986).
Contributory or Comparative Negligence
Nevada has adopted the doctrine of modified comparative negligence. Nev. Rev. Stat. Ann. § 41.141 (Michie 1996). Under this doctrine, a claimant’s action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence. Id.
Joint and Several Liability
In tort actions generally, each tortfeasor is liable only for that portion of the damages equal to the percentage of negligence attributed to him by the jury. Nev. Rev. Stat. Ann. § 41.141 (Michie 1996). Although there is an exception for concerted acts, the statute is specific that “negligent acts committed by providers of health care while working together to provide treatment to a patient” are not concerted acts and that the liability of health care providers is, therefore, several only. Id.
A tortfeasor who pays more than his “equitable share of the common liability” has a right of contribution against the other tortfeasors. Nev. Rev. Stat. Ann. § 17.225 (Michie 1986). However, if a defendant settles with the claimant prior to judgment, no right of contribution attaches. Id. Judgment against one tortfeasor does not discharge the other tortfeasors from liability, nor does the satisfaction of the judgment impair the right of contribution. Nev. Rev. Stat. Ann. § 17.235 (Michie 1986). A joint tortfeasor may enforce the right to contribution during the original proceeding or in a separate proceeding filed within one year of final judgment. Nev. Rev. Stat. Ann. § 17.285 (Michie 1986).
When a hospital selects a doctor to serve the patient, the doctor has apparent authority to bind the hospital because the patient may reasonably assume that a doctor selected by the hospital is an agent of the hospital. Schlotfeldt v. Charter Hospital, 112 Nev. 42, 910 P.2d 271 (1996). In addition, a hospital may be found liable for negligent supervision of a non-employed physician. Oehler v. Humana, Inc., 105 Nev. 348, 775 P.2d 1271 (1989).
As a general rule of evidence, medical malpractice claimants in Nevada must offer “expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred” showing a deviation from the standard of care. Nev. Rev. Stat. Ann. § 41A.100 (Michie Supp. 1997). However, when the damage is caused by a foreign substance left in the body, an explosion or fire of a substance used in treatment, a burn caused by radiation or chemicals, injury to a part of the body not involved in the treatment, or surgery on the wrong person or wrong body part, negligence is presumed and expert testimony is not required. Id.
Nevada does not set a cap on compensatory damages awarded in medical malpractice cases. Punitive damages may only be awarded in tort actions for fraud, oppression, or malice, and are limited to the greater of $300,000 or three times compensatory damages. Nev. Rev. Stat. Ann. § 42.005 (Michie 1996).
Statutory Cap on Attorneys’ Fees
Nevada does not limit the fees an attorney may collect in a medical malpractice action, nor does it require that contingent fee arrangements be approved by the court.
Nevada does not require the periodic payment of medical malpractice judgments.
Collateral Source Rule
In any medical malpractice action, the damages awarded must be reduced by the amount of any prior payment made by the defendant health care provider to the claimant. Nev. Rev. Stat. Ann. § 42.020 (Michie 1996). In addition, after a verdict for plaintiff, the judge shall reduce the verdict by the amount of any collateral benefits, except those for which a right of subrogation exists and for which a lien has been filed. Id.
Damage awards may contain pre-judgment interest computed from the time of service of the summons and complaint until satisfaction of the judgment. Nev. Rev. Stat. Ann. § 17.130(2) (Michie Supp. 1997). For that portion of any award for future damages, however, interest is computed only from the time the judgment is entered until it is satisfied. Id. The rate used is the local prime rate plus two percent. Id.
Patient Compensation Funds and Physician Insurance
Nevada has not established a compensation fund for medical malpractice claimants, nor does it require physicians practicing in the state to carry professional liability insurance.
Nevada has waived its immunity from liability. Nev. Rev. Stat. Ann. § 41.031 (Michie Supp. 1997). The waiver includes all political subdivisions, including counties and cities. Butler v. Bogdanovich, 101 Nev. 449, 705 P.2d 662 (1985); Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979). Damage awards grounded in tort against state institutions and employees cannot exceed $50,000, exclusive of pre-judgment interest. § 41.035(1) (Michie 1996). Also, the damage award cannot include any amount constituting exemplary or punitive damages. Id. A governmental entity does not waive its remaining sovereign immunity by its purchase of insurance. Taylor v. State, 73 Nev. 151, 311 P.2d 733 (1957).
A claimant must file an action against the state within two years after the time the cause of action accrued. Nev. Rev. Stat. Ann. § 41.036 (Michie Supp. 1997).
Nevada has established a system whereby potential medical malpractice claims must be reviewed by a screening panel prior to the filing of the complaint. Nev. Rev. Stat. Ann. § 41A.016 (Michie 1996). After reviewing the available evidence, the panel must decide “whether there is a reasonable probability that the acts complained of constitute medical or dental malpractice and that the claimant was injured thereby.” Nev. Rev. Stat. Ann. § 41A.049(2) (Michie Supp. 1997).
Regardless of the panel’s decision, a claimant is permitted to file a complaint in court. However, if the panel was unable to find a reasonable likelihood of malpractice, and the claimant loses at trial, then he will be responsible for the defendant’s costs and attorneys’ fees incurred after the claim was filed. Nev. Rev. Stat. Ann. § 41A.056 (Michie 1996). The panel’s decision is admissible in subsequent court proceedings. Nev. Rev. Stat. Ann. § 41A.016(2) (Michie 1996).
If the screening panel determines there is a reasonable probability of medical malpractice and a complaint is filed in court, the parties are required to attend a settlement conference before a judge not otherwise involved in the case. Nev. Rev. Stat. Ann. § 41A.059 (Michie Supp. 1997). The judge is charged with the responsibility of determining “the reasonable value of the claim.” Id. If a defendant rejects the settlement suggestion and is found liable for a larger amount at trial, he will be responsible for the claimant’s costs and attorneys’ fees. Id. On the other hand, if the claimant does not accept the settlement suggestion and is awarded a smaller amount at trial, he will be responsible for the defendant’s costs and attorneys’ fees. Id.
Copyright © 1990-1998 McCullough, Campbell & Lane LLP. All Rights Reserved.
Revision Date: February 6, 1998