USA Statutes : nevada
Title : Title 03 - REMEDIES; SPECIAL ACTIONS AND PROCEEDINGS
Chapter : CHAPTER 41A - ACTIONS FOR MEDICAL OR DENTAL MALPRACTICE
As used in this chapter, unless the
context otherwise requires, the words and terms defined in NRS 41A.004
to 41A.017 , inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 1985, 2006; A 1989, 419; 1991, 1609; 1995, 2344;
1999, 5 ; 2002 Special Session, 8 ; 2004 initiative petition, Ballot
Question No. 3)
“Dental malpractice”
has the meaning ascribed to the term “malpractice” in NRS 631.075 .
(Added to NRS by 1995, 2344; A 1999, 5 )
“Economic damages”
includes damages for medical treatment, care or custody, loss of earnings
and loss of earning capacity.
(Added to NRS by 2002 Special Session, 6 )
“Medical malpractice”
means the failure of a physician, hospital or employee of a hospital, in
rendering services, to use the reasonable care, skill or knowledge
ordinarily used under similar circumstances.
(Added to NRS by 1985, 2006; A 1989, 425)
“Noneconomic damages”
includes damages to compensate for pain, suffering, inconvenience,
physical impairment, disfigurement and other nonpecuniary damages.
(Added to NRS by 2002 Special Session, 6 )
“Physician” means a person
licensed pursuant to chapter 630 or 633 of NRS.
(Added to NRS by 1985, 2006; A 1989, 425)
[This section was
proposed by an initiative petition and approved by the voters at the 2004
General Election and therefore is not subject to legislative amendment or
repeal until after November 23, 2007.] “Professional negligence” means a
negligent act or omission to act by a provider of health care in the
rendering of professional services, which act or omission is the
proximate cause of a personal injury or wrongful death. The term does not
include services that are outside the scope of services for which the
provider of health care is licensed or services for which any restriction
has been imposed by the applicable regulatory board or health care
facility.
(Added to NRS by 2004 initiative petition, Ballot Question No. 3)
[This section was
proposed by an initiative petition and approved by the voters at the 2004
General Election and therefore is not subject to legislative amendment or
repeal until after November 23, 2007.] “Provider of health care” means a
physician licensed under chapter 630 or 633 of NRS, dentist, licensed nurse, dispensing optician, optometrist,
registered physical therapist, podiatric physician, licensed
psychologist, chiropractor, doctor of Oriental medicine, medical
laboratory director or technician, or a licensed hospital and its
employees.
(Added to NRS by 2004 initiative petition, Ballot Question No. 3)
[This section was proposed by an initiative petition and approved by the
voters at the 2004 General Election and therefore is not subject to
legislative amendment or repeal until after November 23, 2007.] In an
action for injury or death against a provider of health care based upon
professional negligence, the injured plaintiff may recover noneconomic
damages, but the amount of noneconomic damages awarded in such an action
must not exceed $350,000.
(Added to NRS by 2004 initiative petition, Ballot Question No. 3)
[This section was proposed by
an initiative petition and approved by the voters at the 2004 General
Election and therefore is not subject to legislative amendment or repeal
until after November 23, 2007.]
1. In an action for injury or death against a provider of health
care based upon professional negligence, each defendant is liable to the
plaintiff for economic damages and noneconomic damages severally only,
and not jointly, for that portion of the judgment which represents the
percentage of negligence attributable to the defendant.
2. This section is intended to abrogate joint and several
liability of a provider of health care in an action for injury or death
against the provider of health care based upon professional negligence.
(Added to NRS by 2004 initiative petition, Ballot Question No. 3)
1. Upon the motion of any party or upon its own motion, unless
good cause is shown for the delay, the court shall, after due notice to
the parties, dismiss an action involving medical malpractice or dental
malpractice if the action is not brought to trial within:
(a) Three years after the date on which the action is filed, if the
action is filed on or after October 1, 2002, but before October 1, 2005.
(b) Two years after the date on which the action is filed, if the
action is filed on or after October 1, 2005.
2. Dismissal of an action pursuant to subsection 1 is a bar to the
filing of another action upon the same claim for relief against the same
defendants.
3. Each district court shall adopt court rules to expedite the
resolution of an action involving medical malpractice or dental
malpractice.
(Added to NRS by 2002 Special Session, 7 )
If an action for medical malpractice or
dental malpractice is filed in the district court, the district court
shall dismiss the action, without prejudice, if the action is filed
without an affidavit, supporting the allegations contained in the action,
submitted by a medical 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.
(Added to NRS by 2002 Special Session, 8 )
1. In an action for medical malpractice or dental malpractice, all
the parties to the action, the insurers of the respective parties and the
attorneys of the respective parties shall attend and participate in a
settlement conference before a district judge, other than the judge
assigned to the action, to ascertain whether the action may be settled by
the parties before trial.
2. The judge before whom the settlement conference is held:
(a) May, for good cause shown, waive the attendance of any party.
(b) Shall decide what information the parties may submit at the
settlement conference.
3. The judge shall notify the parties of the time and place of the
settlement conference.
4. The failure of any party, his insurer or his attorney to
participate in good faith in the settlement conference is grounds for
sanctions, including, without limitation, monetary sanctions, against the
party or his attorney, or both. The judges of the district courts shall
liberally construe the provisions of this subsection in favor of imposing
sanctions in all appropriate situations. It is the intent of the
Legislature that the judges of the district courts impose sanctions
pursuant to this subsection in all appropriate situations to punish for
and deter conduct which is not undertaken in good faith because such
conduct overburdens limited judicial resources, hinders the timely
resolution of meritorious claims and increases the costs of engaging in
business and providing professional services to the public.
(Added to NRS by 2002 Special Session, 8 ; A 2003, 3478 )
1. In an action for damages for medical malpractice or dental
malpractice in which the defendant is insured pursuant to a policy of
insurance covering the liability of the defendant for a breach of his
professional duty toward a patient:
(a) At any settlement conference, the judge may recommend that the
action be settled for the limits of the policy of insurance.
(b) If the judge makes the recommendation described in paragraph
(a), the defendant is entitled to obtain from independent counsel an
opinion letter explaining the rights of, obligations of and potential
consequences to the defendant with regard to the recommendation. The
insurer shall pay the independent counsel to provide the opinion letter
described in this paragraph, except that the insurer is not required to
pay more than $1,500 to the independent counsel to provide the opinion
letter.
2. The section does not:
(a) Prohibit the plaintiff from making any offer of settlement.
(b) Require an insurer to provide or pay for independent counsel
for a defendant except as expressly provided in this section.
(Added to NRS by 2003, 3372 )
1. Except as otherwise provided in subsection 3, an action for
injury or death against a provider of health care may not be commenced
more than 4 years after the date of injury or 2 years after the plaintiff
discovers or through the use of reasonable diligence should have
discovered the injury, whichever occurs first, for:
(a) Injury to or the wrongful death of a person occurring before
October 1, 2002, based upon alleged professional negligence of the
provider of health care;
(b) Injury to or the wrongful death of a person occurring before
October 1, 2002, from professional services rendered without consent; or
(c) Injury to or the wrongful death of a person occurring before
October 1, 2002, from error or omission in practice by the provider of
health care.
2. Except as otherwise provided in subsection 3, an action for
injury or death against a provider of health care may not be commenced
more than 3 years after the date of injury or 1 year after the plaintiff
discovers or through the use of reasonable diligence should have
discovered the injury, whichever occurs first, for:
(a) Injury to or the wrongful death of a person occurring on or
after October 1, 2002, based upon alleged professional negligence of the
provider of health care;
(b) Injury to or the wrongful death of a person occurring on or
after October 1, 2002, from professional services rendered without
consent; or
(c) Injury to or the wrongful death of a person occurring on or
after October 1, 2002, from error or omission in practice by the provider
of health care.
3. This time limitation is tolled for any period during which the
provider of health care has concealed any act, error or omission upon
which the action is based and which is known or through the use of
reasonable diligence should have been known to him.
4. For the purposes of this section, the parent, guardian or legal
custodian of any minor child is responsible for exercising reasonable
judgment in determining whether to prosecute any cause of action limited
by subsection 1 or 2. If the parent, guardian or custodian fails to
commence an action on behalf of that child within the prescribed period
of limitations, the child may not bring an action based on the same
alleged injury against any provider of health care upon the removal of
his disability, except that in the case of:
(a) Brain damage or birth defect, the period of limitation is
extended until the child attains 10 years of age.
(b) Sterility, the period of limitation is extended until 2 years
after the child discovers the injury.
(Added to NRS by 1971, 366; A 1975, 407; 1977, 857, 954, 1082;
1985, 2011; 1989, 424; 1991, 1131; 1993, 2224; 1995, 2350; 1999, 5 ; 2001, 1107 ; 2002 Special Session, 8 ; 2004 initiative petition, Ballot
Question No. 3)
1. Liability for personal injury or death is not imposed upon any
provider of medical care based on alleged negligence in the performance
of that care unless evidence consisting of expert medical testimony,
material from recognized medical texts or treatises or the regulations of
the licensed medical facility wherein the alleged negligence occurred is
presented to demonstrate the alleged deviation from the accepted standard
of care in the specific circumstances of the case and to prove causation
of the alleged personal injury or death, except that such evidence is not
required and a rebuttable presumption that the personal injury or death
was caused by negligence arises where evidence is presented that the
personal injury or death occurred in any one or more of the following
circumstances:
(a) A foreign substance other than medication or a prosthetic
device was unintentionally left within the body of a patient following
surgery;
(b) An explosion or fire originating in a substance used in
treatment occurred in the course of treatment;
(c) An unintended burn caused by heat, radiation or chemicals was
suffered in the course of medical care;
(d) An injury was suffered during the course of treatment to a part
of the body not directly involved in the treatment or proximate thereto;
or
(e) A surgical procedure was performed on the wrong patient or the
wrong organ, limb or part of a patient’s body.
2. Expert medical testimony provided pursuant to subsection 1 may
only be given by a provider of medical care 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 negligence.
3. As used in this section, “provider of medical care” means a
physician, dentist, registered nurse or a licensed hospital as the
employer of any such person.
(Added to NRS by 1975, 406; A 1977, 955; 1985, 1754; 1997, 1219;
1999, 5 ; 2002 Special Session, 9 )
A
physician licensed to practice medicine under the provisions of chapter
630 of NRS, or a dentist licensed to practice dentistry under the
provisions of chapter 631 of NRS, has conclusively obtained the consent of a patient for a
medical, surgical or dental procedure, as appropriate, if he has done the
following:
1. Explained to the patient in general terms without specific
details, the procedure to be undertaken;
2. Explained to the patient alternative methods of treatment, if
any, and their general nature;
3. Explained to the patient that there may be risks, together with
the general nature and extent of the risks involved, without enumerating
such risks; and
4. Obtained the signature of the patient to a statement containing
an explanation of the procedure, alternative methods of treatment and
risks involved, as provided in this section.
(Added to NRS by 1975, 408; A 1997, 1219; 1999, 5 )
In addition to the
provisions of chapter 129 of NRS and any
other instances in which a consent is implied or excused by law, a
consent to any medical, surgical or dental procedure will be implied if:
1. In competent medical judgment, the proposed medical, surgical
or dental procedure is reasonably necessary and any delay in performing
such a procedure could reasonably be expected to result in death,
disfigurement, impairment of faculties or serious bodily harm; and
2. A person authorized to consent is not readily available.
(Added to NRS by 1975, 408; A 1997, 1220; 1999, 5 )
