Doctors are human, and they make mistakes just like other humans do. When a medical doctor makes an error, however, the consequences can be catastrophic. A medical malpractice lawsuit alleges substandard health care against a doctor or other healthcare provider.
What Is Medical Malpractice?
“Medical malpractice” is the failure of a healthcare provider to exercise reasonable care in providing medical services. “Reasonable care” means the care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced health care providers.
An undesirable medical result doesn’t necessarily mean malpractice, and neither does a medical error. Sometimes, however, they do amount to medical malpractice.
What Are the Elements of a Medical Malpractice Claim in Nevada?
To win a Nevada medical malpractice claim, you must prove the following facts (“elements”):
- The existence of a doctor-patient relationship, which generates a professional duty of care. You might lack this element if the doctor simply stumbled upon the scene of your car accident and rendered first aid as a “Good Samaritan” bystander.
- Medical treatment that fails to meet the standards of the professional duty of care. As stated above, not every medical mistake constitutes medical malpractice-–the doctor’s failure must amount to medical negligence.
- You suffered medical harm. A “good scare” caused by a false cancer diagnosis is not enough.
- The doctor’s medical negligence was the factual cause of the harm you suffered. In other words, but for the doctor’s negligence, you would not have suffered the harm.
- The harm you suffered was a foreseeable consequence of the doctor’s medical negligence, not a freak accident.
The defendant in a medical malpractice case need not be a doctor; they can be a hospital, for example. No matter what, however, you must prove all five of the foregoing assertions to win your claim.
Common Types of Medical Malpractice
Following are some of the most common types of medical malpractice:
- Anesthesia errors,
- Childbirth injuries,
- Emergency room errors,
- Failure to follow up,
- Failure to monitor,
- Failure to order proper testing,
- Failure to take your medical history,
- Hospital-acquired infections,
- Ignoring or misreading laboratory results,
- Failure to seek and obtain informed consent,
- Leaving a surgical instrument inside the patient’s body after surgery,
- Medication errors,
- Nursing home abuse and neglect (by a medical professional);
- Premature discharge from the hospital,
- Radiology errors, and
- Wrong site surgery (operating on the wrong kidney, for example),
This is far from a complete list. Additionally, some medical harm might not constitute medical malpractice. Harm arising from defective medical equipment, for example, might qualify as a product liability claim (against a product manufacturer) rather than a medical malpractice claim (against a doctor).
Preparing the Affidavit of Merit
Nevada medical malpractice law requires you to submit an affidavit of merit with your initial lawsuit complaint. The affidavit of merit must:
- Be issued by an expert who practices in or has practiced in a field of medicine that is similar or identical to the type of medicine for which the malpractice claim arose;
- Agree with your assertions against the defendant;
- Identify by name or describe by conduct each health care provider against whom your complaint alleges medical negligence; and
- Clearly describe the negligent acts or omissions of each defendant.
If you fail to submit an affidavit or merit, or if your submission is inadequate, the court will dismiss your lawsuit “without prejudice.” “Without prejudice” means you can fix the problem and refile the lawsuit.
Filing a Lawsuit
Even if you are committed to settling your medical malpractice claim, there are still several possible reasons to file a lawsuit:
- To pressure the defendant into settling;
- To beat the statute of limitations deadline; and
- To gain actress to the pretrial discovery process (see below).
Remember, you can always agree to withdraw your lawsuit in exchange for a reasonable settlement.
How the Pretrial Discovery Process Can Help You Gather Evidence
The pretrial discovery process is available only to parties to an ongoing lawsuit. Each side can demand access to evidence that is in the possession of the other side. You can ask the court to sanction the other side if they refuse to cooperate.
Pretrial discovery can allow you to:
- Obtain your medical records,
- Take depositions of medical staff,
- Take depositions of expert witnesses,
- Send written questions (interrogatories) to the defendant,
- Demand Inspection of physical evidence,
- Copy of documents such as emails, financial records, and X-rays; and
- Collect evidence from third parties, such as banks.
There are many other forms of evidence that you might be able to collect. Remember, however, that the other side has the same right to demand evidence from you.
Seeking Damages
Nevada allows you to seek economic damages, non-economic damages, and (in rare cases) punitive damages. See below for a brief explanation.
Economic Damages
Economic damages are easily countable losses such as medical bills, lost earnings, child care while you were in the hospital, and other reasonable and necessary expenses. You can use an expert witness to estimate your future medical expenses and diminished earning capacity, if any.
Non-Economic Damages
Non-economic damages are real, but difficult to account. They include losses such as emotional distress, pain and suffering, and loss of enjoyment of life.
Punitive Damages
You can seek punitive damages if the defendant’s conduct was outrageous (performing surgery while intoxicated, for example). However, punitive damages are not usually awarded and require a stronger showing of evidence.
Note that in Nevada, both non-economic damages and punitive damages are capped in medical malpractice cases.
Can You Negotiate a Medical Malpractice Claim?
Yes, you can negotiate a medical malpractice claim. Indeed, negotiation is how most medical malpractice claims get resolved.
The defendant is likely going to want to negotiate your claim if, by doing so, they can keep the allegations against them confidential. Even an unjustified medical malpractice claim can greatly damage a healthcare provider’s reputation.
The Statute of Limitations
Nevada’s general medical malpractice statute of limitations is three years after the malpractice occurred or two years after you either discover, or should have discovered, the malpractice.
If you are filing a wrongful death lawsuit on behalf of someone who died as a result of medical malpractice, the statute of limitations is two years after the victim’s date of death.
State law pauses the statute of limitations countdown under certain circumstances, giving you more time to file a lawsuit. This might happen, for example, if the victim is under 18, or if a defendant doctor deliberately concealed evidence of malpractice.
It’s not always easy to determine the statute of limitations for a medical malpractice case. It’s best to contact a lawyer as soon as you can to confirm the time limit for your specific circumstances.
Trial
Your case probably won’t go all the way to trial. If it does, medical malpractice trials are the same as the procedure for other kinds of personal injury trials, with the following exceptions:
- The use of expert witnesses is nearly universal,
- The issues at stake tend to be scientifically complex,
- It can be difficult to determine the applicable standard of care,
- Proving causation can be challenging, and
- Damages tend to be high.
Even complex medical malpractice trials typically last for only a day, or sometimes two or three days.
Consult With an Experienced Las Vegas Medical Malpractice Attorney
Medical malpractice lawsuits tend to be complex and difficult to win. Compensation tends to be high, however, if you do manage to succeed. In most cases, your chances of winning if you represent yourself are almost zero.
Hire an experienced Las Vegas medical malpractice lawyer from De Castroverde Accident & Injury Lawyers to handle your claim. Since medical malpractice attorneys usually charge based on a contingency fee arrangement, you only pay attorney’s fees if you get compensation. Contact us today at (702) 222-9999 to get started.