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.

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.

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.

Our firm has participated in blogging before, but I’m pleased to report that we are now able to blog directly from our web-site.  For my part, my postings will include social commentary as well as (hopefully) useful information about Nevada law and our firm’s involvement in it.  The challenge will be to fit this blogging effort into our busy practice, but I’ll certainly try my best to keep the posts frequent, fresh, and informative.  Wish me luck!  PCW

Welcome to White & Wetherall blog pages.

Hopefully, we can provide you with informative news and stories here.