Articles Posted in Medical Malpractice

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The Nevada Supreme Court held that Nevada law recognizes vicarious liability where a doctor works for the hospital as an independent contractor so long as an ostensible agency relationship existed between the hospital and the doctor. The court reversed the district court's holding that the hospital was not liable in this medical malpractice case and remanded for the jury to determine whether such an ostensible agency relationship existed under the facts of the case. View "McCrosky v. Carson Tahoe Regional Medical Center" on Justia Law

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The Nevada Supreme Court affirmed the district court's dismissal of the complaint for lack of an expert affidavit in a medical malpractice action. NRS 41A.071 provides that a district court must dismiss a plaintiff's medical malpractice complaint if it is not accompanied by an expert affidavit. However, under NRS 41A.100(1), a plaintiff need not attach an expert affidavit for a res ipsa loquitur claim. The court reiterated that the enumerated res ipsa loquitur exceptions in NRS 41A.100 supersede the common knowledge res ipsa loquitur doctrine. In this case, plaintiff's complaint failed to show that any object left his body was the result of "surgery," and thus the complaint did not satisfy the elements for the statutory exception of res ipsa loquitur. Finally, the court held that NRS 41A.071 did not violate equal protection or due process. View "Peck v. Zipf" on Justia Law

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The Nevada Supreme Court denied a writ of prohibition or, in the alternative, mandamus challenging the district court's order in a medical malpractice case. Petitioner, a physician assistant, petitioned the court to determine whether the amendment to NRS 41A.017 clarified the existing definition of a provider of health care, so as to apply retroactively, or whether the amended definition operates prospectively only. The court held that the 2015 amendments expressly apply to a cause of action that accrues on or after the effective date of the act, and thus petitioner failed to rebut the presumption that statutory amendments were applied prospectively. View "Segovia v. The Eighth Judicial District Court" on Justia Law

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The Supreme Court affirmed in part, reversed in part, and remanded a district court order dismissing a complaint against a medical treatment center for failure to attach a medical expert affidavit pursuant to Nev. Rev. Stat. 41A.071. On appeal, Appellant argued that the district court erred in dismissing his complaint because his claims were based in ordinary negligence and not medical malpractice, as determined by the district court, and therefore, an affidavit was not required. The Supreme Court held (1) Appellant’s claims for negligence, malpractice, gross negligence, negligence per se, and negligent hiring, training, and supervision were not for medical malpractice and should not have been dismissed for failure to attach the section 41A.071 affidavit; and (2) Appellant’s claim for professional negligence sounded in medical malpractice and was properly dismissed for failure to attach a medical expert affidavit. View "Szymborski v. Spring Mountain Treatment Center" on Justia Law

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Kelli Barrett filed a complaint against Humboldt General Hospital and Dr. Sharon McIntyre, alleging, inter alia, battery based on an alleged lack of informed consent. Barrett filed the complaint without a supporting medical expert affidavit. Defendants moved to dismiss the complaint based on Nev. Rev. Stat. 41A.071’s requirement that an expert affidavit be filed with “medical malpractice” actions. The district court denied the motion as to the battery claim. Defendants filed this original petition for a writ of mandamus challenging the district court’s denial of their motion as Barrett’s battery claim. The Supreme Court granted the petition, holding that a battery claim against a medical provider based on an allegation of lack of informed consent is subject to section 41A.071’s medical expert affidavit requirement. View "Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court" on Justia Law

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Real parties in interest filed a professional negligence action against several healthcare providers. All defendants settled except for Petitioners. During pretrial proceedings, real parties in interest filed a motion in limine to bar Petitioners from arguing the comparative fault of the settled defendants at trial and including those defendants’ names on jury verdict forms. The district court granted the motion. Petitioners subsequently asked the Supreme Court to issue a writ of mandamus ordering the district court to allow Petitioners to argue the comparative fault of the settled defendants and to include those defendants’ names on the jury verdict form for the purpose of allocating liability among all defendants. At issue before the Supreme Court was Nev. Rev. Stat. 41A.045, which makes healthcare provider defendants severally liable in professional negligence actions for economic and noneconomic damages. The Supreme Court granted a writ of mandamus, holding that the provision of several liability found in section 41A.045 entitles a defendant in a healthcare provider professional negligence action to argue the percentage of fault of settled defendants and to include the settled defendants’ names on applicable jury verdict forms where the jury could conclude that the settled defendants’ negligence caused some or all of the plaintiff’s injury. View "Piroozi v. Eighth Judicial Dist. Court" on Justia Law

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During Vivian Harrison’s divorce proceeding to Kirk Harrison, Kirk hired psychiatrist Norton Roitman to conduct a psychiatric analysis of Vivian. Without meeting with or examining Vivian, Dr. Roitman submitted to the court a written report diagnosing Vivian with a personality disorder. Vivian subsequently filed a complaint against Dr. Roitman, alleging that his statements constituted, inter alia, medical malpractice and intentional infliction of emotional distress. The district court granted Roitman’s motion to dismiss, concluding that Dr. Roitman was absolutely immune from liability for each of Vivian’s causes of action because he was a witness preparing an expert report in connection with the matter in controversy at the time he made the statements. The Supreme Court affirmed, holding that, even if the allegations contained in Vivian’s complaint were true, Dr. Roitman's defense of absolute immunity precluded her claim. View "Harrison v. Roitman" on Justia Law

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After the death of Charles Cornell, Sherry Cornell filed a complaint against numerous defendants, including petitioner Stephen Tam, M.D., alleging medical malpractice. Dr. Tam filed an omnibus motion in limine requesting in part that Plaintiff’s noneconomic damages be capped pursuant to Nev. Rev. Stat. 41A.035, which limits the recovery of a plaintiff’s noneconomic damages in a healthcare provider’s professional negligence action to $350,000. The district court denied the motion, concluding (1) section 41A.035 is unconstitutional, as it violates a plaintiff’s constitutional right to trial by jury; (2) the statutory cap does not apply to the case as a whole, but a separate cap applies to each plaintiff for each of the defendants; and (3) the statutory cap does not apply to medical malpractice claims. Dr. Tam subsequently petitioned for a writ of mandamus compelling the district court to vacate its order denying his motion in limine. The Supreme Court granted the petition, holding that the district court erred in (1) finding the statute unconstitutional; (2) finding the statutory cap applies per plaintiff and per defendant; and (3) finding the statute only applies to professional negligence and not to medical malpractice. View "Tam v. Eighth Judicial Dist. Court" on Justia Law

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Plaintiff filed a medical malpractice action against Defendants-medical providers. Before filing suit, Plaintiff consulted with a medical expert from whom he obtained a supporting declaration required by Nev. Rev. Stat. 41A.071. Plaintiff, however, did not attach the declaration to the complaint but instead filed the complaint by itself and filed the separately captioned declaration the following morning. Plaintiff’s complaint incorporated the medical expert’s declaration by reference and both were served together on Defendants before the statute of limitations ran. The district court dismissed the malpractice action on the grounds that Plaintiff’s action was defective because it was filed without the expert affidavit supporting its allegations required by section 41A.071. The Supreme Court reversed, holding that section 41A.071 did not require dismissal under the circumstances of this case. View "Baxter v. Dignity Health" on Justia Law

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A former patient of Dr. Ryan Mitchell, through his guardian ad litem, sued Mitchell for medical malpractice, alleging that Mitchell’s misadministration of anesthesia during a tonsillectomy caused the seven-year-old patient’s heart to fail. Mitchell admitted that at the time he operated on the patient he was addicted to Ketamine and Valium. During discovery, Plaintiff subpoenaed Mitchell’s counseling and substance abuse treatment records. Mitchell objected, citing the doctor-patient and family therapist-client privileges. The district court overruled Mitchell’s claims. Mitchell sought an extraordinary writ directing the district court to protect as privileged the records relating to his substance abuse. The Supreme Court conditionally granted the writ, holding (1) Mitchell’s family and marital therapy records were privileged; and (2) Mitchell’s doctor-patient records, though subject to the statutory patient-litigant exception, should have been reviewed in camera by the district court and appropriate limitations placed on their use before discovery of them was allowed. View "Mitchell v. Eighth Judicial Dist. Court" on Justia Law