Articles Posted in Medical Malpractice

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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

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The mother of sixteen-month-old Max Zohar (collectively, the Zohars), filed a medical malpractice complaint against multiple defendants, including a physician, a nurse, and several EmCare entities (collectively, Respondents), asserting claims of medical malpractice, professional negligence and vicarious liability after Max’s finger was amputated. The Zohars attached an expert affidavit specifying the allegedly negligent activities of several individuals, but the affidavit did not identify Respondents by name. The district court granted Respondents’ motions to dismiss, concluding that the expert affidavit was deficient because it did not specifically name Respondents as negligent parties. The Supreme Court reversed, holding (1) a court should read a medical malpractice complaint and affidavit of merit together when determining whether the affidavit meets the requirements of Nev. Rev. Stat. 41A.071; and (2) in this case, the expert affidavit, while it failed to specifically name allegedly negligent defendants, adequately supported the allegations of medical malpractice against Respondents and provided adequate notice to Respondents of the claims against them, and therefore the district court erred in finding that the expert affidavit was inadequate to support the Zohars’ allegations of medical malpractice against Respondents. View "Zohar v. Zbiegien" on Justia Law

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Plaintiff underwent Lasik corrective surgery on her eyes and subsequently developed ocular complications. Plaintiff sued Dr. John L. Siems, who performed the surgery, and Siems Advanced Lasik, asserting claims for medical malpractice and professional negligence. During trial, the defense argued that Plaintiff’s condition was consistent with eye drop abuse. The jury returned a verdict for Defendants. The Supreme Court affirmed, holding (1) the district court did not abuse its discretion in admitting certain expert testimony because the testimony met the standard for expert testimony set forth in Williams v. Eighth Judicial District Court, which clarified existing law on medical expert testimony; and (2) the defense counsel’s direct, unauthorized communications with Plaintiff’s treating physician were improper, but because Plaintiff did not demonstrate prejudice, a new trial was not warranted. View "Leavitt v. Siems" on Justia Law

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In 2005, Dr. Eugene Libby, an orthopedic surgeon, performed surgery on Megan Hamilton’s left knee. In an effort to combat a serious infection that had developed in the knee, Dr. Libby performed another surgery on Hamilton’s knee in 2006. The infection persisted. In 2010, Hamilton brought a claim for injury against Dr. Libby. Dr. Libby filed a motion for summary judgment on the grounds that Hamilton’s claims were barred by the three-year medical malpractice statute of limitations. The district court denied the motion. Dr. Libby subsequently filed a petition for extraordinary relief. The Supreme Court granted the petition for writ of mandamus, holding (1) Nev. Rev. Stat. 41A.097(2)’s three-year limitation period begins to run when there is an appreciable manifestation of the plaintiff’s injury, regardless of whether the plaintiff was aware of the injury’s cause; and (2) because Hamilton suffered appreciable harm to her knee more than three years before she filed her complaint, the district court was required to grant summary judgment in Dr. Libby’s favor. View "Libby v. Eighth Judicial Dist. Cout" on Justia Law