2005 Nevada Revised Statutes - Chapter 41A — Actions for Medical or Dental Malpractice

CHAPTER 41A - ACTIONS FOR MEDICAL ORDENTAL MALPRACTICE

NRS 41A.003 Definitions.

NRS 41A.004 Dentalmalpractice defined.

NRS 41A.007 Economicdamages defined.

NRS 41A.009 Medicalmalpractice defined.

NRS 41A.011 Noneconomicdamages defined.

NRS 41A.013 Physiciandefined.

NRS 41A.015 Professionalnegligence defined. [This section was proposed by an initiative petition andapproved by the voters at the 2004 General Election and therefore is notsubject to legislative amendment or repeal until after November 23, 2007.]

NRS 41A.017 Providerof health care defined. [This section was proposed by an initiative petitionand approved by the voters at the 2004 General Election and therefore is notsubject to legislative amendment or repeal until after November 23, 2007.]

NRS 41A.035 Limitationon amount of award for noneconomic damages. [This section was proposed by aninitiative petition and approved by the voters at the 2004 General Election andtherefore is not subject to legislative amendment or repeal until afterNovember 23, 2007.]

NRS 41A.045 Severalliability of defendants for damages; abrogation of joint and several liability.[This section was proposed by an initiative petition and approved by the votersat the 2004 General Election and therefore is not subject to legislative amendmentor repeal until after November 23, 2007.]

NRS 41A.061 Dismissalof action for failure to bring to trial; effect of dismissal; adoption of courtrules to expedite resolution of actions.

NRS 41A.071 Dismissalof action filed without affidavit of medical expert supporting allegations.

NRS 41A.081 Settlementconference: Persons required to participate; powers and duties of judge;failure to participate.

NRS 41A.085 Recommendationof settlement for amount of limits of policy of insurance: When authorized;insurer to pay for opinion of independent counsel upon request.

NRS 41A.097 Limitationof actions; tolling of limitation.

NRS 41A.100 Requiredevidence; exceptions; rebuttable presumption of negligence.

NRS 41A.110 Consentof patient: When conclusively established.

NRS 41A.120 Consentof patient: When implied.

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NRS 41A.003 Definitions. As used in this chapter, unless the context otherwiserequires, the words and terms defined in NRS41A.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 SpecialSession, 8; 2004 initiative petition, Ballot Question No. 3)

NRS 41A.004 Dentalmalpractice defined. Dental malpractice hasthe meaning ascribed to the term malpractice in NRS 631.075.

(Added to NRS by 1995, 2344; A 1999, 5)

NRS 41A.007 Economicdamages defined. Economic damages includesdamages for medical treatment, care or custody, loss of earnings and loss ofearning capacity.

(Added to NRS by 2002 Special Session, 6)

NRS 41A.009 Medicalmalpractice defined. Medical malpracticemeans the failure of a physician, hospital or employee of a hospital, inrendering services, to use the reasonable care, skill or knowledge ordinarilyused under similar circumstances.

(Added to NRS by 1985, 2006; A 1989, 425)

NRS 41A.011 Noneconomicdamages defined. Noneconomic damagesincludes damages to compensate for pain, suffering, inconvenience, physical impairment,disfigurement and other nonpecuniary damages.

(Added to NRS by 2002 Special Session, 6)

NRS 41A.013 Physiciandefined. Physician means a person licensedpursuant to chapter 630 or 633 of NRS.

(Added to NRS by 1985, 2006; A 1989, 425)

NRS 41A.015 Professionalnegligence defined. [This section was proposed by an initiative petition andapproved by the voters at the 2004 General Election and therefore is notsubject to legislative amendment or repeal until after November 23, 2007.] Professional negligence means a negligent act oromission to act by a provider of health care in the rendering of professionalservices, which act or omission is the proximate cause of a personal injury orwrongful death. The term does not include services that are outside the scope ofservices for which the provider of health care is licensed or services forwhich any restriction has been imposed by the applicable regulatory board orhealth care facility.

(Added to NRS by 2004 initiative petition, BallotQuestion No. 3)

NRS 41A.017 Providerof health care defined. [This section was proposed by an initiative petitionand approved by the voters at the 2004 General Election and therefore is notsubject to legislative amendment or repeal until after November 23, 2007.] Provider of health care means a physician licensed underchapter 630 or 633of NRS, dentist, licensed nurse, dispensing optician, optometrist, registeredphysical therapist, podiatric physician, licensed psychologist, chiropractor,doctor of Oriental medicine, medical laboratory director or technician, or alicensed hospital and its employees.

(Added to NRS by 2004 initiative petition, BallotQuestion No. 3)

NRS 41A.035 Limitationon amount of award for noneconomic damages. [This section was proposed by aninitiative petition and approved by the voters at the 2004 General Election andtherefore is not subject to legislative amendment or repeal until afterNovember 23, 2007.] In an action for injury ordeath against a provider of health care based upon professional negligence, theinjured plaintiff may recover noneconomic damages, but the amount ofnoneconomic damages awarded in such an action must not exceed $350,000.

(Added to NRS by 2004 initiative petition, BallotQuestion No. 3)

NRS 41A.045 Severalliability of defendants for damages; abrogation of joint and several liability.[This section was proposed by an initiative petition and approved by the votersat the 2004 General Election and therefore is not subject to legislativeamendment or repeal until after November 23, 2007.]

1. In an action for injury or death against a providerof health care based upon professional negligence, each defendant is liable tothe plaintiff for economic damages and noneconomic damages severally only, andnot jointly, for that portion of the judgment which represents the percentageof negligence attributable to the defendant.

2. This section is intended to abrogate joint andseveral liability of a provider of health care in an action for injury or deathagainst the provider of health care based upon professional negligence.

(Added to NRS by 2004 initiative petition, BallotQuestion No. 3)

NRS 41A.061 Dismissalof action for failure to bring to trial; effect of dismissal; adoption of courtrules to expedite resolution of actions.

1. Upon the motion of any party or upon its ownmotion, unless good cause is shown for the delay, the court shall, after duenotice to the parties, dismiss an action involving medical malpractice ordental malpractice if the action is not brought to trial within:

(a) Three years after the date on which the action isfiled, if the action is filed on or after October 1, 2002, but before October1, 2005.

(b) Two years after the date on which the action isfiled, if the action is filed on or after October 1, 2005.

2. Dismissal of an action pursuant to subsection 1 isa bar to the filing of another action upon the same claim for relief againstthe same defendants.

3. Each district court shall adopt court rules toexpedite the resolution of an action involving medical malpractice or dentalmalpractice.

(Added to NRS by 2002 Special Session, 7)

NRS 41A.071 Dismissalof action filed without affidavit of medical expert supporting allegations. If an action for medical malpractice or dental malpracticeis filed in the district court, the district court shall dismiss the action,without prejudice, if the action is filed without an affidavit, supporting theallegations contained in the action, submitted by a medical expert whopractices or has practiced in an area that is substantially similar to the typeof practice engaged in at the time of the alleged malpractice.

(Added to NRS by 2002 Special Session, 8)

NRS 41A.081 Settlementconference: Persons required to participate; powers and duties of judge;failure to participate.

1. In an action for medical malpractice or dentalmalpractice, all the parties to the action, the insurers of the respectiveparties and the attorneys of the respective parties shall attend andparticipate in a settlement conference before a district judge, other than thejudge assigned to the action, to ascertain whether the action may be settled bythe parties before trial.

2. The judge before whom the settlement conference isheld:

(a) May, for good cause shown, waive the attendance ofany party.

(b) Shall decide what information the parties maysubmit at the settlement conference.

3. The judge shall notify the parties of the time andplace of the settlement conference.

4. The failure of any party, his insurer or hisattorney to participate in good faith in the settlement conference is groundsfor sanctions, including, without limitation, monetary sanctions, against theparty or his attorney, or both. The judges of the district courts shallliberally construe the provisions of this subsection in favor of imposingsanctions in all appropriate situations. It is the intent of the Legislaturethat the judges of the district courts impose sanctions pursuant to thissubsection in all appropriate situations to punish for and deter conduct whichis not undertaken in good faith because such conduct overburdens limitedjudicial resources, hinders the timely resolution of meritorious claims andincreases the costs of engaging in business and providing professional servicesto the public.

(Added to NRS by 2002 Special Session, 8;A 2003, 3478)

NRS 41A.085 Recommendationof settlement for amount of limits of policy of insurance: When authorized;insurer to pay for opinion of independent counsel upon request.

1. In an action for damages for medical malpractice ordental malpractice in which the defendant is insured pursuant to a policy ofinsurance covering the liability of the defendant for a breach of hisprofessional duty toward a patient:

(a) At any settlement conference, the judge mayrecommend that the action be settled for the limits of the policy of insurance.

(b) If the judge makes the recommendation described inparagraph (a), the defendant is entitled to obtain from independent counsel anopinion letter explaining the rights of, obligations of and potentialconsequences to the defendant with regard to the recommendation. The insurershall pay the independent counsel to provide the opinion letter described inthis paragraph, except that the insurer is not required to pay more than $1,500to the independent counsel to provide the opinion letter.

2. The section does not:

(a) Prohibit the plaintiff from making any offer ofsettlement.

(b) Require an insurer to provide or pay forindependent counsel for a defendant except as expressly provided in thissection.

(Added to NRS by 2003, 3372)

NRS 41A.097 Limitationof actions; tolling of limitation.

1. Except as otherwise provided in subsection 3, anaction for injury or death against a provider of health care may not becommenced more than 4 years after the date of injury or 2 years after theplaintiff discovers or through the use of reasonable diligence should havediscovered the injury, whichever occurs first, for:

(a) Injury to or the wrongful death of a person occurringbefore October 1, 2002, based upon alleged professional negligence of theprovider of health care;

(b) Injury to or the wrongful death of a personoccurring before October 1, 2002, from professional services rendered withoutconsent; or

(c) Injury to or the wrongful death of a personoccurring before October 1, 2002, from error or omission in practice by theprovider of health care.

2. Except as otherwise provided in subsection 3, anaction for injury or death against a provider of health care may not becommenced more than 3 years after the date of injury or 1 year after theplaintiff discovers or through the use of reasonable diligence should havediscovered the injury, whichever occurs first, for:

(a) Injury to or the wrongful death of a personoccurring on or after October 1, 2002, based upon alleged professionalnegligence of the provider of health care;

(b) Injury to or the wrongful death of a personoccurring on or after October 1, 2002, from professional services renderedwithout consent; or

(c) Injury to or the wrongful death of a personoccurring on or after October 1, 2002, from error or omission in practice bythe provider of health care.

3. This time limitation is tolled for any periodduring which the provider of health care has concealed any act, error oromission upon which the action is based and which is known or through the useof 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 exercisingreasonable judgment in determining whether to prosecute any cause of actionlimited by subsection 1 or 2. If the parent, guardian or custodian fails tocommence an action on behalf of that child within the prescribed period oflimitations, the child may not bring an action based on the same alleged injuryagainst any provider of health care upon the removal of his disability, exceptthat in the case of:

(a) Brain damage or birth defect, the period oflimitation is extended until the child attains 10 years of age.

(b) Sterility, the period of limitation is extendeduntil 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)

NRS 41A.100 Requiredevidence; exceptions; rebuttable presumption of negligence.

1. Liability for personal injury or death is notimposed upon any provider of medical care based on alleged negligence in theperformance of that care unless evidence consisting of expert medicaltestimony, material from recognized medical texts or treatises or theregulations of the licensed medical facility wherein the alleged negligenceoccurred is presented to demonstrate the alleged deviation from the acceptedstandard of care in the specific circumstances of the case and to prove causationof the alleged personal injury or death, except that such evidence is not requiredand a rebuttable presumption that the personal injury or death was caused bynegligence arises where evidence is presented that the personal injury or deathoccurred in any one or more of the following circumstances:

(a) A foreign substance other than medication or aprosthetic device was unintentionally left within the body of a patientfollowing surgery;

(b) An explosion or fire originating in a substanceused in treatment occurred in the course of treatment;

(c) An unintended burn caused by heat, radiation orchemicals was suffered in the course of medical care;

(d) An injury was suffered during the course oftreatment to a part of the body not directly involved in the treatment orproximate thereto; or

(e) A surgical procedure was performed on the wrongpatient or the wrong organ, limb or part of a patients body.

2. Expert medical testimony provided pursuant tosubsection 1 may only be given by a provider of medical care who practices orhas practiced in an area that is substantially similar to the type of practiceengaged in at the time of the alleged negligence.

3. As used in this section, provider of medical caremeans a physician, dentist, registered nurse or a licensed hospital as theemployer of any such person.

(Added to NRS by 1975, 406; A 1977, 955; 1985, 1754;1997, 1219; 1999, 5;2002 SpecialSession, 9)

NRS 41A.110 Consentof patient: When conclusively established. Aphysician licensed to practice medicine under the provisions of chapter 630 of NRS, or a dentist licensed topractice dentistry under the provisions of chapter631 of NRS, has conclusively obtained the consent of a patient for amedical, surgical or dental procedure, as appropriate, if he has done thefollowing:

1. Explained to the patient in general terms withoutspecific details, the procedure to be undertaken;

2. Explained to the patient alternative methods oftreatment, 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, withoutenumerating such risks; and

4. Obtained the signature of the patient to astatement containing an explanation of the procedure, alternative methods oftreatment and risks involved, as provided in this section.

(Added to NRS by 1975, 408; A 1997, 1219; 1999, 5)

NRS 41A.120 Consentof patient: When implied. In addition to theprovisions of chapter 129 of NRS and any otherinstances in which a consent is implied or excused by law, a consent to anymedical, surgical or dental procedure will be implied if:

1. In competent medical judgment, the proposedmedical, surgical or dental procedure is reasonably necessary and any delay inperforming 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)

 

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