Although medical malpractice is really a form of negligence, it must be proven through the use of expert witnesses. Doctors are usually needed to evaluate cases and to testify against other doctors. Similarly, nurses are frequently required to testify against other nurses. Defense lawyers hire their own experts in an effort to defeat the plaintiff’s case. In medical malpractice trials, the jury is usually left to decide which side’s experts offered a more credible explanation of a health care provider’s conduct and whether such conduct fell below the standard of care required under the circumstances. It is a frightening aspect of modern medicine that lawyers for both sides can generally find well-credentialed doctors to support their positions.
Relatively recent changes to Nevada’s medical malpractice statutes now require that all medical malpractice cases filed in Nevada’s courts contain an expert affidavit.
Nevada statute NRS 41A.071 provides:
Dismissal of action filed without affidavit of medical expert supporting allegations. 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
What this means, in effect, is that victims of malpractice must find an expert witness before a case is first filed. The defense, by contrast, is not required to submit an affidavit with their answer.
Nevada medical malpractice plaintiffs are at a significant disadvantage from the start of a case: first, because our new one-year statute of limitations (thanks to the insurance and medical industry lobbies) makes it extremely difficult to gather records and gain a review in this length of time; and second, because plaintiffs divulge a great deal about their case from the start while defendants can wait until close to trial to reveal their expert theories.
Steve is the Managing Shareholder of Steven J. Klearman & Associates, a civil litigation law firm located in Reno, Nevada. He practices primarily in the areas of civil litigation and injury law, and has authored one of the definitive guides to Nevada civil law that is widely used by Nevada judges and attorneys, his book entitled Elements of Nevada Legal Theories.