In the medical malpractice arena, the Nevada Supreme Court has confirmed the Legislature’s speed bump to consumers trying to recover damages from Nevada doctors or dentists for injuries caused by their professional negligence. Since this is the first time the Court has looked at the new legislation passed to keep doctors from fleeing Nevada, it had to define its terms. First, it ruled that claims for “professional negligence” fall under the “medical malpractice” definition of the Nevada Revised Statutes. Second, it ruled that a medical corporation is covered under the “medical malpractice” requirements against “providers of health care” to establish a claim. Third, the Court visited the new regulation, N.R.S. 41A.071, which requires a doctor’s sworn statement to be filed with any new complaint alleging medical malpractice, or the complaint must be dismissed without prejudice. Fourth, the Court ruled a claim cannot be saved by filing an amended complaint with the required affidavit, as the complaint is void from the beginning. Why that was important in the Fierle v. Perez case, is that the amended complaint was filed after the new one-year medical malpractice statute of limitation (from actual knowledge of the claim) had passed, so the claim was now barred.
Factually, a cancer patient was severely burned when the chemotherapy she was receiving was misapplied. Instead of injecting the chemical into her vein through an implanted catheter, it was injected into her tissue by a nurse. When she experienced redness and swelling, an ultrasound was done which showed the catheter coiled in the tissues. Within two weeks, she was treating with other doctors, who agreed that medical malpractice had occurred. The patient suffered scarring
Almost a year after the ultrasound, the cancer patient’s attorneys filed a medical malpractice complaint against the doctor, the nurse, and the medical facility. Upon realizing they had failed to attach the required affidavit, the attorneys filed an amended complaint with the affidavit of the new treating physician. The defendants moved to dismiss the case entirely, and the court struck the amended complaint and dismissed the original complaint on the procedural basis of NRS 41A.071. Because the dismissal was done past the one-year statute of limitations, the patient was unable to file a new complaint with the required affidavit.
However, as a small bone to the claimant, the Supreme Court recognized that one of the original causes of action for res ipsa loquitor (latin for “the thing speaks for itself”) is a negligence claim which does not amount to medical malpractice, and therefore is an exception to the requirements of NRS 41A.071. Thus, the court ruled, only the patient’s claim against the nurse (who actually administered the therapy) would survive the dismissal.
Steven R. Bartell, Esq.
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