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Steven J. Klearman
Steven J. Klearman
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Proving a Medical Malpractice Case in Nevada – Part IV

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Here is the final installment of cases that deal with proving medical malpractice claims in Nevada:

In an informed consent case, plaintiff’s assertion that he or she would have refused treatment must be reasonable under the circumstances. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

In determining reasonableness, the court may consider testimony of the patient as well as medical evidence regarding the risks of remaining untreated, the possible alternative treatment and the risks and expected benefits of alternative treatments. No single type of evidence is to be conclusive; rather, all evidence must be considered by the fact-finder in determining whether, had the full extent of the risk been known, plaintiff would have reasonably refused treatment. Smith v. Cotter, 107 Nev. 267, 810 P.2d 1204 (1991).

A qualified nurse may testify regarding the national standard of care for a hospital. Oehler v. Humana Inc., 105 Nev. 348, 775 P.2d 1271 (1989).

When establishing standard of care to be applied in a medical malpractice case, plaintiff must use testimony of expert witnesses with knowledge of the prevailing standards. There is no requirement that the expert medical witness be from the same specialty as defendant; the issue is simply one of the witness’ actual knowledge. Rees v. Roderiques, 101 Nev. 302, 701 P.2d 1017 (1985).

In order to recover in a medical malpractice case against a board certified specialist, the patient must demonstrate that the defendant specialist failed to meet the standard of skill and care expected of a reasonably competent practitioner in the same specialty, wherever practicing. Wickliffe v. Sunrise Hospital Inc., 101 Nev. 542, 706 P.2d 1383 (1985); Orcutt v. Miller, 95 Nev. 408. 595 P.2d 1141 (1979).