White & Wetherall

As of July 1 of this year, provoked by the Endoscopy Center catastrophe here in Las Vegas, Nevada lawmakers decided to bolster current laws prohibiting retaliation against nurses and other employees of medical facilities who reveal the commission of unsafe policies or procedures.  Now, the jobs of whistle-blowing employees cannot end, detrimentally change, or inconveniently move; and their ability to receive promotions cannot be adversely affected by their actions in reporting dangerous or illegal activities.  See, NRS 449.205.  Further, if retaliation DOES occur, a whistle-blower can pursue compensatory damages, reimbursement of wages, costs, attorney’s fees, and punitive damages.  See, NRS 449.207.

For some patients, this change has come too late.  For others, maybe it will do some good.  Time will tell if care providers actually break the typical code of silence and respond to these new protections with a greater willingness to report unsafe practices than was the case at the Endoscopy Centers.  We can only hope.  For those brave souls that do report wrongdoing and suffer retaliation or discrimination as a result, White & Wetherall stands ready to pursue a remedy in court on their behalf.  In other words, you Nevada whistle-blowers do your part, and we’ll do ours.

For more information on recent changes to Nevada’s medical whistle-blower laws, see the revisions at http://www.leg.state.nv.us/75th2009/Bills/AB/AB10_EN.pdf.

A busy doctor strolls into your examination room and haphazardly reads your file.  He briefly listens to your description of the ailments that have brought you to him, and without missing a beat, distractedly prescribes a generic round of antibiotics that ultimately fail to fix the problem.  Perhaps the visit with your doctor was so brief and cursory that it left you wondering, “was that actually my doctor, or an assistant?”  Unfortunately, this scenario is not that uncommon, and it’s one of many contexts in which a “failure to diagnose” claim may arise.

In Nevada, “medical malpractice” is defined at NRS 41A.009 as “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.”   “Professional negligence” is defined at NRS 41A.015 as “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 bottom line is, a malpractice claim can be premised on an omission just as readily as a overt negligent act.  In other words, a failure to diagnose is just as bad in the eyes of the law as a negligent (i.e., wrong) diagnosis, and both create viable claims for damages when either causes injury or death.

The Nevada Supreme Court has addressed failure to diagnose claims on at least six occasions.  The most recent case, Prabhu v. Levine, 112 Nev. 1538, 930 P.2d 103 (1996), involved a physician’s failure to timely diagnose a benign brain tumor which, when removed at the time it was ultimately discovered, caused multiple impairments and disfigurements to the plaintiff.  Among other things, the Court in Prabhu confirmed that 1) it is the jury’s province to weigh competing experts’ testimony as to whether or not a physician breached the requisite standard of care in failing to diagnose a condition; and 2) circumstantial evidence as well as expert testimony may be used to establish that a physician’s violation of the standard of care caused a plaintiff’s loss of chance for a more favorable recovery.

If you or a loved one has incurred a failure to diagnose, or a mis-diagnosis that you perceive caused harm that wouldn’t have otherwise occurred, you may have a viable claim for money damages against the offending physician, and should consult experienced and competent medical malpractice attorneys like us here at White & Wetherall regarding the merits of your claim.

Relatively speaking, collisions involving trucks happen as frequently on Nevada highways and roadways as anywhere else in the country.  Injury cases arising out of truck accidents must be handled differently than the ordinary auto accident case.  Trucking companies and their insurance defense lawyers have “rapid response teams” that rush to truck accident scenes, conduct their own investigations, and generally attempt “damage control” at the scene to the extent they can.  This damage control done on behalf of the trucking company is not always done ethically or impartially, but more with an eye towards limiting or avoiding liability, all at a time when advocates for any injured parties (including truck drivers themselves) are absent, incapacitated, or dead.

Unlike an ordinary auto accident case, a plaintiff begins their truck accident injury case with the deck stacked against him or her, and must therefore play “catch up” in order to compete with the immense resources directed against them at the outset.  If White & Wetherall gets called promptly after a truck collision case (occurring anywhere in Nevada), we have the ability to dispatch a “rapid response” team of our own, to insure evidence is obtained and preserved that might otherwise be inadvertently degraded, lost, or concealed on purpose.  Of course, we are only able to mobilize this type of response if a friend or loved one contacts us ASAP after such an accident.  Of course, that’s not always possible.  Fortunately, even if weeks or months go by before we are contacted, there are still mechanisms and litigation techniques at our disposal to prevent the loss of valuable evidence.

Nevada law enforcement typically does a pretty good job of taking measurements and preserving evidence at truck accident scenes, but their investigation is not always as thorough as is required in an injury case.  The moral of this message is, if at all possible, involve competent attorneys as quickly as possible after an accident involving a truck.

This past weekend, I was in Atlanta attending the Advanced Trial Advocacy College for litigating truck collision cases. I’m a member of the American Association for Justice’s Interstate Trucking Litigation Group, and routinely attend these specialized education seminars to update and improve my skill set. This Advocacy College was particularly intensive, and reinforced what I already knew about the handling of truck collision cases - regular auto accident attorneys shouldn’t be “dabbling” in truck collision cases.

Why do I say this? I mean no disrespect. There’s a number of reasons. First, the standards to which commercial vehicles are held are a matter of federal law, namely, the Federal Motor Carrier Safety Act (FMCSA), and most regular auto attorneys have little or no familiarity with these standards. Second, accidents involving trucks typically result in catastrophic injuries (given the forces, weights and speeds involved), and require a higher degree of medical knowledge (about traumatic brain injury, severe back injury, and paralysis) than the run-of-the-mill auto accident case. Third, understanding issues pertaining to insurance, multi-party liability, accident reconstruction, truck characteristics, trucking culture, and behaviors of the trucking industry is absolutely critical in order to attain a full and fair recovery in a trucking case. Trucking companies and their insurance carriers do not pony up millions of dollars for catastrophic injuries (or death) lightly, or easily. They often fight you to the bitter end.

The attorney and firm you choose to represent you in an truck collision must have specialized knowledge, financial resources, and experience to handle these cases competently. Keep this in mind if you or a loved one suffer the misfortune of being in a collision involving a truck. This advice extends to the thousands of safe and courteous truckers out there who are also injured in collisions or loading accidents, despite their best efforts to keep our highways safe. Most truck drivers are good people, but a lot of them work for reckless companies who put profits over safety.

Can your choice of attorney for your auto accident case make a difference in the money you recover?  Think about it - don’t people in every profession have varying skill sets that dictate how well they do their work?  Attorneys are no different.  Should you care how experienced, knowledgeable, or involved a particular attorney will be in the handling of your case?  The answer depends on how important your case is to you.  If you don’t care how much money you recover as compensation for your injuries, then I suppose there’s no reason to care who handles your case.  If you do care how much compensation you receive -  if your hope is to maximize the money received by you at the end of your case -  then you should care about your choice of attorney.  The better or best accident attorneys don’t charge any more than the average ones, so why settle for average effort or ability?

So how do you find the attorney that’s best for you and your case?  That’s easy – ask attorneys about their experience, knowledge, and what their personal level of involvement in your case will be if you hire them.  Here are some other questions you can ask that will help you distinguish between the better attorneys from the merely adequate:

1)         Who will be my primary contact in your office (should be the attorney);

2)         What’s the range of value you perceive for my case;

3)         What’s the range of recovery I can expect to receive “in-pocket” after deducting fees, costs, and medical liens on my case;

4)         When was the last time you personally (or the attorney you intend to assign me) actually tried a case?

A skilled and dedicated injury attorney will take no offense to your asking these and other questions until you’re satisfied and comfortable, because he or she has nothing to fear by answering them.