Chapter 31 Professional Liability

INTRODUCTION…… 31:1

SOURCES OF LIABILITY………….. 31:2

SUBMISSION OF CLAIMS 31:5

THE SETTLEMENT CONFERENCE…….. 31:6

STANDARDS OF PROOF………….. 31:7

DAMAGES………… 31:10

CONCLUSION……… 31:10

ALTERNATE DISPUTE RESOLUTION (ADR)………… 31:10

APPENDIX A – MODEL CONTRACTUAL ARBITRATION AGREEMENT……… 31:11

INTRODUCTION

Physicians today face the real potential for civil liability. Whenever someone undertakes to render assistance based on licensed, professional expertise, the likelihood exists that one or more recipients will seek legal restitution for supposed wrongs. In Nevada, the procedure for prosecuting a malpractice claim against a physician is specified in the Nevada Revised Statutes, Chapter 41A. The standards of proof required and the exceptions to a finding of negligence are also codified. The statutes, and the case law interpretations, are designed to protect both the plaintiff as well as the physician. There is also, in Nevada, the possibility of criminal prosecution for criminal neglect of patients. In addition to facing civil liability for malpractice, a physician providing unacceptable care by industry standards, runs the risk of a felony conviction.

This chapter touches briefly on the sources of liability (and criminal prosecution) found in the Nevada Revised Statutes. Once a decision has been made to initiate a malpractice action against a physician, there are very specific steps that must be followed in order for the plaintiff to maintain a viable claim. The sections entitled Sources of Liability and Claim Submission outline the procedures usually required of the plaintiff in a malpractice. Even if the proper procedures are followed by the plaintiff, and the case were to proceed to trial, the standards of proof required for a finding of liability are fairly high, and should be understood by any physician looking to defend against a malpractice action. The Settlement Conference section discusses the requirements for expert witnesses and other sources of technical testimony and standards of proof. (The requirements for expert witnesses are covered in more detail in the Expert Witness Testimony chapter). Finally, while significant damage awards are possible in medical malpractice actions, there are limitations and protections which are detailed in the final section, Standards of Proof.

SOURCES OF LIABILITY

The most frequently source of liability in the medical profession is malpractice. In Nevada, medical malpractice is defined 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. NRS 41A.009. It is interesting to note that malpractice, like many other threshold standards of conduct in the medical profession, is based on the reasonable caregiver standard. It is not a matter of simply assessing the actions of the physician or hospital, but comparing those actions to how a reasonable physician or hospital would act under similar circumstances. Thus, even if a physician believes that he has done all that is necessary to treat a patient, if the plaintiff can prove, usually through expert witnesses, that the standard of reasonable care required additional treatment steps, the physician may be found liable for malpractice. On the other hand, depending on the circumstances, the flexible reasonable care standard can be fairly lax, such as in emergency situations, thereby imposing a difficult barrier for the plaintiff. As we will see in Section 5.3, this reasonable caregiver standard is the principal reason Nevada requires review and recommendations by a screening panel before a medical malpractice action can proceed to trial..

Unfortunately for the physician, malpractice or negligence is not the only source of liability in Nevada. In fact, if a cause of action for malpractice is not available, or fails for any number of reasons, the physician may be sued under the legal theory that he committed an intentional tort. For instance, in Jones v. Wilkin, 111 Nev.1335, 905 P.2d. 166 (1995), plaintiff failed to have her claims reviewed by a medical screening board, as required for malpractice claims. Despite this administrative oversight, the Supreme Court of Nevada ruled that since the allegations sounded in tort (intentional tort), not malpractice, the plaintiff was not required to submit the claim to a screening board, and was not, therefore, precluded from seeking restitution. Thus, NRS 41.130, Liability for Personal Injury, is applicable in cases involving medical treatment, and may be a source of liability for the physician, even if the legal standard and administrative requirements for malpractice are not met.

Perhaps the most frightening and threatening source of liability is the criminal code. Under NRS 200.495, a physician or professional caretaker may be guilty of criminal neglect if:

The caretakers acts, or omissions, are more than simply negligent, but are aggravated, reckless or gross;
The conduct is such a departure from ordinarily prudent conduct that it constitutes disregard for danger to human life or indifference to the possible consequences;
The consequences were foreseeable; and,
The resulting danger to human life stems not from inattention, mistaken judgment or misadventure, but from aggravated, reckless or grossly negligent act or omission.

Depending on the extent of the patients injuries, including death, a verdict of guilty may bring a felony or misdemeanor conviction, with up to 20 years in prison (or less if the patient does not die, or if there is no substantial bodily harm). There are exceptions identified in the statute for patients who request no medical treatment other than spiritual prayer, as well as for those with a valid declaration to withhold life-sustaining treatment. In these cases, a patient is not considered neglected unless other circumstances exist beyond these exceptions.

The Nevada code does offer protection to those who attempt to render emergency medical assistance. Under NRS 41.500, in the absence of gross negligence, volunteers and other medical emergency personnel are insulated from civil liability if they fall into one of the following categories: a good Samaritan rendering aid gratuitously and in good faith; a volunteer ambulance driver or attendant who renders emergency care in good faith; an appointed member of a volunteer ambulance service performing services in good faith; a member of a search and rescue team under the direction of the county sheriff, acting in good faith; an employee or volunteer of a public fire fighting agency; a person trained in CPR, or rendering CPR under the direction of a dispatcher, in other than his or her normal employment capacity, to include those rendering care on public school grounds or during the transporting of pupils to and from public school grounds. This statute also provides protection, in the absence of gross negligence, for those trained in the use of automatic external defibrillators.

A similar degree of protection is available for medical personnel under NRS 41.505. Physicians and registered nurses, giving direction to emergency medical personnel at the scene of an emergency, as well as the emergency personnel themselves, are not liable for civil damages in the absence of gross negligence. However, licensed medical caregivers, licensed under NRS 630, 632 or 633, rendering care in a medical facility,