White & Wetherall

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.

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.