[Rev. 11/21/2013 9:02:25 AM--2013]

CHAPTER 41A - ACTIONS FOR MEDICAL OR DENTAL MALPRACTICE

NRS 41A.003          Definitions.

NRS 41A.004          “Dental malpractice” defined.

NRS 41A.007          “Economic damages” defined.

NRS 41A.009          “Medical malpractice” defined.

NRS 41A.011          “Noneconomic damages” defined.

NRS 41A.013          “Physician” defined.

NRS 41A.015          “Professional negligence” defined.

NRS 41A.017          “Provider of health care” defined.

NRS 41A.035          Limitation on amount of award for noneconomic damages.

NRS 41A.045          Several liability of defendants for damages; abrogation of joint and several liability.

NRS 41A.061          Dismissal of action for failure to bring to trial; effect of dismissal; adoption of court rules to expedite resolution of actions.

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

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

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

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

NRS 41A.100          Required evidence; exceptions; rebuttable presumption of negligence.

NRS 41A.110          Consent of patient: When conclusively established.

NRS 41A.120          Consent of patient: When implied.

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      NRS 41A.003  Definitions.  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)

      NRS 41A.004  “Dental malpractice” defined.  “Dental malpractice” has the meaning ascribed to the term “malpractice” in NRS 631.075.

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

      NRS 41A.007  “Economic damages” defined.  “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)

      NRS 41A.009  “Medical malpractice” defined.  “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)

      NRS 41A.011  “Noneconomic damages” defined.  “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)

      NRS 41A.013  “Physician” defined.  “Physician” means a person licensed pursuant to chapter 630 or 633 of NRS.

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

      NRS 41A.015  “Professional negligence” defined.  “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)

      NRS 41A.017  “Provider of health care” defined.  “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, licensed dietitian or a licensed hospital and its employees.

      (Added to NRS by 2004 initiative petition, Ballot Question No. 3; A 2011, 1511)

      NRS 41A.035  Limitation on amount of award for noneconomic damages.  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)

      NRS 41A.045  Several liability of defendants for damages; abrogation of joint and several liability.

      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)

      NRS 41A.061  Dismissal of action for failure to bring to trial; effect of dismissal; adoption of court rules to expedite resolution of actions.

      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)

      NRS 41A.071  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 engaged in at the time of the alleged malpractice.

      (Added to NRS by 2002 Special Session, 8)

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

      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, the party’s insurer or the party’s attorney to participate in good faith in the settlement conference is grounds for sanctions, including, without limitation, monetary sanctions, against the party or the party’s 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)

      NRS 41A.085  Recommendation of 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 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 the defendant’s 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)

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

      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 the provider of health care.

      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 the child’s 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)

      NRS 41A.100  Required evidence; exceptions; rebuttable presumption of negligence.

      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)

      NRS 41A.110  Consent of patient: When conclusively established.  A physician licensed to practice medicine under the provisions of chapter 630 or 633 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 the physician or dentist 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; 2007, 273)

      NRS 41A.120  Consent of patient: When implied.  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)