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Steven J. Klearman
Steven J. Klearman
Attorney • (800) 880-5297

Proving a Medical Malpractice Claim in Nevada – Part I

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Last blog, I listed an excerpt from my new book that included many fact situations that give rise to medical malpractice claims in Nevada.

This blog I will concentrate on those cases that discuss proving medical malpractice claims in Nevada and in the next two blogs I will finish this discussion of proof.

The following case selections are listed in chronological order starting with some of the most recent cases to touch upon proving medical malpractice. The reader should note that the law of medical malpractice is closely related to the law of negligence. As such, Nevada legal decisions that pertain to negligence sometimes come into play in medical malpractice litigation:

The district court’s refusal to allow evidence of the fact that the surgical procedure performed had not been approved by the FDA was within its discretion. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).

Exclusion of SIIS survey, which consisted of brief descriptions of numerous other cases in which Dr. Thalgott performed surgery, was appropriate. The district court could properly find that injecting these other cases into trial would prolong the trial, confuse the issues and divert the jury to collateral matters. Hansen v. Universal Health Services of Nevada, Inc., 115 Nev. 24, 974 P.2d 1158 (1999).

A prior court case describing similar surgical events was admissible in support of the expert’s opinion that patient’s condition was medically possible. Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998).

Under NRS 41A.100, Nevada’s medical malpractice res ipsa loquitur statute, the presumption of negligence automatically applies where any of the enumerated factual circumstances are present. All plaintiff need do is present some evidence of the existence of one or more of the factual predicates enumerated in the statute. If the trier of fact then finds that one or more of the factual predicates exist, the presumption must be applied. NRS 41A.100 provides 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. NRS 41A.100; Born v. Eisenman, 114 Nev. 854, 962 P.2d 1227 (1998); Johnson v. Egtedar, 112 Nev. 428, 915 P.2d 271 (1996).