White & Wetherall

Each year, thousands of people around the country are seriously injured or killed as a result of harm from a defective product.  A rung on a ladder fails, a fan malfunctions, a pool drain disembowels a youngster, and the list of incidents goes on and on.  Many times these types of injuries are “embedded” in a case of another type.  For example, an auto accident may be the fault of one or other driver, but the extent of injury may also be due to crashworthiness defects in the cars involved.  A worker may fall from a construction site due in whole or in part to a defectively designed scaffolding. 

In Nevada, a plaintiff in a products liability case has the burden of proving that: 1) the product had a defect which rendered it unreasonably dangerous, 2) the defect existed at the time the product left the manufacturer, and 3) the defect caused the plaintiff’s injury.  See, Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970).  A defective product is dangerous if it fails to perform in the manner reasonably to be expected in the light of its nature and intended function.  Id.

We are fortunate here in Nevada to have strong protections for consumers injured by defective products.  For example, pursuant to NRS 42.005, a punitive damages award in Nevada is typically limited to three times the amount of a compensatory damages awarded, but this punitive damages “cap” does not apply to “a manufacturer, distributor or seller of a defective product.”  See, NRS 42.005(2)(a).  Next, Nevada law provides for the imposition of joint and several liability upon defendants in cases involving “an injury to any person or property resulting from a product which is manufactured, distributed, sold or used in this State.”  See, NRS 41.141(5)(e).  What this means is that each defendant in a products liability case is legally responsible for the entire amount of the verdict against all liable defendants, regardless of each defendant’s percentage of fault.  The imposition of joint and several liability upon products manufacturers sued in Nevada puts greater pressure on them (than would otherwise exist) to meaningfully consider settlement in cases where they have arguable responsibility to any extent.

So why is it that we have these consumer-friendly rules in products liability cases?  The answer is rooted in the public policy of the State of Nevada, as interpreted by our Nevada Supreme Court.  In Allison v. Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994), a case involving catastrophic injury to a child following a vaccination, the Nevada Supreme Court summed it up as follows: 

The public policy considerations that support holding the defendants liable in this case (if plaintiffs can prove that the vaccine caused his injuries) were put well by Professor Prosser in the noted law review article, “The Fall of the Citadel”:

The public interest in human safety requires the maximum possible protection for the user of the product, and those best able to afford it are the suppliers of the chattel. By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising and otherwise, they do everything they can to induce that belief….(citing) 50 Minn.L.Rev. 791, 799 (1966). This concept of “public interest” is the guiding principle of our present opinion.

We are fortunate that the Nevada Supreme Court continues to adhere and espouse this principal.  In doing so, the Court meaningfully protects the rights of Nevada families who suffer catastrophic harm from defective products.  Having a good, experienced products liability attorney representing you doesn’t hurt either.

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.

It’s our civic duty to fight corruption and fraud, particularly when perpetrated against our government.  In a “qui tam” action, whistle-blowers can be rewarded with a healthy share of money recovered by the government from unscrupulous government contractors who over-charged, including physicians who steal from the government by trumping up “treatment” charges paid for by us taxpayers via medicaid or medicare.  Think it doesn’t happen in Nevada, by Nevada doctors of all people?  Think again and see below.  If you’re aware of fraud which has been or is being committed against our government, against all of us, contact White & Wetherall about pursuing a qui tam action on your behalf, and potentially obtain a reward just for doing the right thing.

Medicare fraud suspected in Las Vegas.

In an article entitled, “The Allegation: Driven by greed, physicians charge Medicare, government insurance plans for patient exams that never happened,” the Las Vegas Sun (3/29, Allen) reported, “Allegations about doctors fraudulently billing Medicare and insurance companies are whispered throughout the Las Vegas medical community, and for good reason.” According to a study, “Medicare…spends more per patient in the Las Vegas region than in 90 percent of the regions nationwide.” While “the high level of billing could suggest better care… it is more likely, according to experts, that the government is paying for unnecessary services or ones that weren’t even rendered.” Pat Burns, spokesman for the national advocacy group Taxpayers Against Fraud, said, “Fraud is the ‘logical choice’ for unscrupulous doctors because the chance of getting caught is slight and the penalties for getting caught are weak.

The Las Vegas Review-Journal reported today that there’s medical malpractice legislation in the works at the Nevada legislature.  The bill, in its present form would apparently 1) lift the $350K non-economic damages cap on medical malpractice cases, 2) lengthen the time available to file suit, and 3) lengthen the time available to get a case to trial.

We won’t know for awhile if any of this will happen, but it’s an interesting response to the wide-spread outrage over the Endoscopy catastrophe that occurred around this time last year.  While I’m thankful the aforementioned reforms are being considered, I feel bad for the countless victims of medical malpractice whose cases have been and continue to be resolved under the old statute.  At present, with the “one size fits all” ham-fisted solution attained by the insurance industry (assisted by misguided Nevada physicians), a brain-injured victim of medical malpractice resigned to a lifetime of pain, impairment, and loss of quality of life is subject to the same $350K damages cap regardless of whether they are injured as a baby (with a 50 years left to live) as a 75 year-old with 5 years left to live.  Makes no sense, but then again, it was the diminishment/elimination of malpractice claims that was the purpose of our present statutory scheme, not common sense or fairness to victims.

We have some fantastic, caring and skilled physicians in this state - a lot of them.  The same can be said of law enforcement officers, attorneys, and people in all sorts of professions, so that’s not really the point.  The point is, when a doctor causes negligent (or intentional) injury, they should be held accountable for the consequences of that harm.  That’s what malpractice insurance is for.  That’s what accountability is all about.

We have mechanisms for suing attorneys, peace officers, and everyone else for negligence that don’t involve caps on damages.  Negligent doctors should be treated no better, no worse.  PCW