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Third Leading Cause of Death Is Medical Error. What Are Your Rights in Nevada?

According the Center for Diseases, preventable medical error was the third leading cause of death in the United States with over 440,000 people dying. Accidents were fifth with over 130,000. Medical errors undermine the integrity and reliability of our American medical health care system. Rather than hold those accountable to compensate those affected through damaged bodies or lost loved ones, states continue to protect those that do us harm. Insurers (and medical providers) have successfully lobbied to be granted a status above the law, enjoying partial or total immunity when these medical errors arise.

Politics aside, it is irrefutable that Nevada State citizens have lost significant rights as a result of medical malpractice tort reform. Assembly Bill 1 (AB1) disbanded the med-mal screening panel and in its place came strict filing requirements, damage limitations, and statute of limitation reductions. AB1 took effect October 1, 2002.

Two years later, a majority percentage of those citizens voted for and passed the further restrictive Keep Our Doctors in Nevada Initiative, or KODIN. The airwaves and doctors’ offices bombarded would-be voters with scare tactics, such as a television advertisement depicting physicians lining the highway on their way out of town. The apparent choice to voters was simple: cap your damages for medical malpractice or else lose access to quality medical care for you and your family. Voters chose to give up their rights. The numbers do not bear out Nevada and other states achieved an improved state of quality health care. There was no true crisis. Rather, Nevada was next in line for the med-mal liability insurers to seize a timely opportunity, using their insureds as pawns. The propaganda worked. The Endoscopy fiasco that followed was a sign. Another sign? Medical errors cause more deaths yearly than accidents, car wrecks, falls, and other.

As a result of the medical malpractice tort reform, Nevada law limits a person injured through a health care provider’s negligence to $350,000 in non-economic damages (pain and suffering). A person may recover for economic damages (past and future medical expenses and lost income or opportunity) in excess of that amount.

Consider a case involving a stay-at-home mother who is blinded and paralyzed by her doctor’s negligent act or omission. Without a lost income claim, she would most likely be able to collect up to $350,000. Obviously, this amount would not be her net recovery given the legal fees and costs necessary to prosecute the case. Medical malpractice cases are expert driven and often cost tens of thousands of dollars, at least. Rarely do cases avoid litigation or settle early. Most malpractice liability policies require the alleged negligent party (i.e., doctor) to consent to settlement. There are disincentives to health care providers settling, such as raised insurance rates, stigmas attached to having settled a malpractice claim, investigations by their licensing body, and national reporting requirements. The public scrutiny can easily dissuade a blameworthy medical provider.

In addition to capping an individual’s recovery, claims of malpractice must be filed with the court as early as one-year from the date of injury or death. NRS 41A.097 currently controls. The previous statute of limitations was two years from discovery and no more than four years from date of injury or death. AB1 initially only reduced the four years to three years, leaving the two year discovery deadline alone. The two-year statute of limitations is standard for all other tort actions for injury or death. With the passage of KODIN and NRS 41A.097, the two-year statute of limitations was reduced to one year. The three-year limitation remained. Therefore, from date of discovery, an individual has one year to deal with one’s injury or the grief and loss of a family member, ask questions, decide to investigate, gather records, choose an attorney, convince an attorney to take a case with capped damages and capped attorney’s fees, have one’s attorney complete the record gathering process, review the case, hire an expert, obtain an expert affidavit and file the complaint. Although much more complicated than a simple automobile collision, the statute of limitations period is half.

Unlike in all other cases of negligence, a person claiming injury or death as the result of medical malpractice must first consult and obtain a supporting affidavit from an expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice. The expert must reach an opinion the health care provider both fell below the standard of care and caused injury or death. Failure to meet this expert requirement will result in dismissal. There are few exceptions under NRS 41A.100, like foreign substances unintentionally left within the body, explosion or fire, unintended burns, injuries during treatment to body parts not directly involved, and surgical procedures performed on the wrong patient, organ, limb or part of a patient’s body.

The supposed purpose behind NRS 41A.071 was to minimize or otherwise avoid the filing of frivolous lawsuits. The affidavit must be attached to the lawsuit, or else the court will dismiss the case. Conversely, the defendant need not disclose an expert for nearly a year from the case filing. Expert disclosure deadline, conversely, is due near the end of discovery, pursuant to NRCP 16.1.

Obtaining an expert review and affidavit for medical malpractice cases most often requires the obtaining a copy of the medical records, finding an expert who is usually out-of-state for political reasons, and payment of the expert’s fee, which is customarily $500-$1500 an hour depending upon specialty and experience. Often, multiple experts must be retained when cases involve different disciplines. A surgery gone wrong in a hospital setting may have occurred as the result of a nursing error, surgical error, and/or anesthesia error, not to mention the pre-op and follow up care that could have been below the standard and contributed to the damages claimed. A cardiologist, internist, infectious disease specialist, and critical care specialist may have to be consulted and possibly author an affidavit. It is not uncommon with this kind of complexity that potential defendants only become obvious after the case has begun.

Our Nevada Supreme Court has ruled the cap on damages in medical malpractice cases is constitutional. We are, therefore, forced to prosecute cases under the law, as it currently exists. Sadly, the costs and risks eliminate the viability of many cases in a court of law. A person may still file a Complaint with licensing boards who can investigate claims. For those cases where a civil claim or lawsuit for damages is not only justified, but potentially worthwhile to those who have been tragically affected, the right thing may be to plow doggedly forward for the right reasons. Our former President Theodore Roosevelt once said, “No man is above the law and no man is below it.” While Nevada’s law no longer makes this statement true in the context of medical malpractice, we as a community can hold medical providers accountable for their errors and improve the state of medicine.

Like the U. S. Constitution, Nevada’s Constitution contains a guarantee of equal protection, access to courts and a right to a jury. See Barnes v. 8th Judicial Dist. Court of State of Nev., 103 Nev. 679, 748 P.2d 483 (1987). Article 4, Section 21 of the Nevada Constitution requires that all laws be “general and of uniform operation throughout the State.” “Legislative classifications must apply uniformly to all who are similarly situated, and the distinctions which separate those who are included within a classification from those who are not must be reasonable, not arbitrary.” Barnes, 103 Nev. at 683, 748 P.2d at 486-487 (citation omitted). Section 3 of Article I of the Nevada Constitution provides, “The right of trial by Jury shall be secured to all and remain inviolate forever…”

In addition to the $350,000 non-economic cap on damages, as mentioned earlier, Nevada requires a plaintiff to first obtain an affidavit of merit before filing a complaint. In Barnes, the Court struck down as unconstitutional a statute requiring an indigent litigant, as a precondition to obtaining a waiver of filing fees, to obtain a certificate of an attorney that the indigent’s cause of action or defense had merit. Justice Shearing, the respondent, argued that the legislative purpose was to spare the state the burden of financing frivolous lawsuits and that filing fees would also assist in offsetting the operating expenses of the court system. Id., 103 Nev. at 683, 748 P.2d at 486. The court agreed that these are legitimate state interests; however, it pointed out that the statute may also operate to screen out meritorious actions that would otherwise be filed by persons who cannot afford, or are otherwise precluded from obtaining, the required certificate of an attorney. Id., 103 Nev. at 684, 748 P.2d at 486. The Court explained in conclusion:

Because NRS 12.015 may operate to preclude the filing of meritorious actions by indigent persons, we conclude that the classification scheme created by the statute is arbitrary and irrational. The statute is too broad in its sweep. We conclude, therefore, that by conditioning the waiver of filing fees on an indigent’s ability to obtain the certificate of an attorney that the indigent’s cause of action or defense has merit, NRS 12.015 violates the equal protection guarantees contained in the Nevada and United States Constitutions. See Lindsey, 405 U.S. at 79, 92 S.Ct. at 877.

Minimizing or otherwise avoiding frivolous lawsuits was one intention of the legislature when passing the affidavit requirement portion of Nevada’s med mal reform. Barnes appears to be clearly applicable precedent in which to judge the rational basis and, therefore, constitutionality of these laws. The affidavit of merit requirement in Barnes could not survive the lowest level of scrutiny—the “rational basis” test.

California does not require a certificate of merit or expert affidavit upon filing of the complaint. The state does require that a plaintiff put a medical defendant on notice of a claim 90 days before filing suit. The court can rule on the viability of the case at the appropriate time.

In Putman, the Washington State Supreme Court struck down Washington’s Certificate of Merit requirement in medical malpractice cases as unconstitutional. Several other state supreme courts have invalidated certificate and affidavit requirements for medical malpractice litigation, holding that they conflict with court rules regarding the procedures for filing lawsuits and therefore violate the separation of powers. See Summerville v. Thrower, 369 Ark. 231, 239, 253 S.W.3d 415 (2007) (invalidating a statute that required medical malpractice plaintiffs to submit an affidavit of reasonable cause from a medical expert within 30 days of filing); Wimley v. Reid, 991 So.2d 135, 138 (Miss.2008) (invalidating a statute that required the plaintiff’s attorney to submit a certificate that he or she has consulted a medical expert prior to filing); and Hiatt v. S. Health Facilities, Inc., 68 Ohio St.3d 236, 237-238, 626 N.E.2d 71 (1994) (invalidating a statute requiring the plaintiff’s attorney in a medical malpractice action to submit an affidavit attesting that he or she had requested a copy of the medical records).

Nevada’s med mal reform laws could also be declared unconstitutional by preventing a person’s right to court access and conflicting with court rules, a violation of the separation of powers. By enacting NRS 41A.071, the legislature has legislated procedural issues that are within the domain of the judiciary. The statute’s provisions are procedural and do appear to conflict with the court’s rules. When such a situation occurs, the courts need to determine whether the separation of powers between the legislative and judicial branches has been violated.

Procedural rules found in NRCP 3 (“notice” pleading), NRCP 9 (“special matters”), and NRCP 16, 16.1 and other court rules grant and manage the ability of litigants to conduct discovery and provide for expert disclosure requirements. If the affidavit requirement of NRS 41A.071 is determined to irreconcilably conflict with the procedural court rules, then the statute may violate the separation of powers. Unduly burdening the right of medical malpractice plaintiffs to conduct discovery may violate their right to access the courts. So too, imposing a one-year statute a one-year statute of limitation may be just as difficult a burden.

In the end, a jury will reach a verdict. Verdict means to speak the truth. Jurors will determine the extent and amount of damages of most medical malpractice cases. Like so many other states, this determination will not control if the amount decided by our peers exceeds the imposed caps on damages. Many states have chosen to leave this decision within the province of the jury. The Nevada Supreme Court will undoubtedly one day decide whether one or more of these medical malpractice reform laws violate our rights to a jury, access to the courts, due process, and equal protection. Until that time, eight people get charged several times a day across our Silver State with the duty of reaching a fair and impartial decision. Like it or not, “fair and impartial” has a limit, at least for now.

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