Preface: Introduction to the American Legal System
SOURCES OF LAW: THE FEDERAL AND STATE
THE CIVIL SUIT
Initiation and Filing
The Pretrial Phase
ALTERNATIVES TO LITIGATION
The U.S. legal system functions on two interrelated levels: federal and state. Federal law has its source in the U.S. Constitution and rules through federal statutes and regulations. Federal courts interpret these statutes and regulations, and, under English common law origins, establish judge-made (or common law) laws. The federal government is increasingly active in the health-care field.
Each state has its own legal system, but each state’s system of laws is subject to and must be in accord with the U.S. Constitution. States generally promulgate laws which further the health, safety, welfare, and morals of its citizens. Each state has its own Constitution that often gives the state’s citizens additional rights than those provided in the U.S. Constitution. While the federal government preempts and controls the broad issues in health care, such as Medicare, state governments generally regulate providers of health care. State governments regulate licensing of physicians and nurses, regulate the operation of hospitals, and establish the scope and standards of medical practice.
The two-tier legal system extends to the judiciary in both the federal and state government systems. Federal courts and state courts, though distinct entities, function in a similar manner. Although their primary role is to interpret the laws enacted by the legislatures, both levels of courts can also make laws.
The U.S. Constitution is the supreme law of the land, and is the foundation upon which the entire U.S. legal system is based. No federal, state, or municipal body may pass a law which contravene the U.S. Constitution. The U.S. Constitution divides the federal government into three branches: the executive, legislative, and judicial, each of which is granted defined or enumerated powers. Powers not granted to the federal government in the U.S. Constitution are reserved to the states.
The U.S. Constitution provides that each state has the authority to formulate its own system of government in adherence to the principles set forth in the Constitution. Additionally, each state has its own Constitution. Many states have given their citizens and residents rights that are greater than those expressed in the U.S. Constitution. Nevada’s Constitution, for instance, contains a variety of “conscience
clauses” that may allow a health care professional to refuse to be involved with a task or procedure that is against his or her religious or moral beliefs.
The legislative branch of the federal government consists of two houses of Congress, the Senate and the House of Representatives. The federal legislature is responsible for the creation of the laws of the United States, which are approved by the president, the head of the executive branch. These laws, known as statutes, are published in the United States Code (U.S.C. or USC), and take precedence or preempt any state laws that conflict with them. Federal statutes also cover important and diverse health-care areas such as Medicare and emergency care by hospitals. The full text of federal statutes may be found in the UNLV law library, which is open to all Nevadans, and the Clark County Law Library in downtown Las Vegas. A similar law library is available in Washoe county. Librarians there a generally very helpful in assisting the public. More easily accessible, all federal statutes are available through many Internet sites, including the following: http://www.law.cormell.edu/
State legislatures are modeled after the federal government. Each state has a governor who approves and enforces laws enacted by the state legislature. In Nevada, the laws of the state are called the Nevada Revised Statutes (N.R.S. or NRS). Scattered throughout these statutes are laws affecting physicians. The primary source of physician regulatory laws is found in Chapter 630 of the Nevada Revised Statutes. This chapter establishes the State Medical Board, sets out the requirements for licensing in Nevada, and establishes standards for physicians. NRS Chapter 630 also provides the broad authority for the Board to institute disciplinary action against physicians and outlines the procedural requirements for disciplinary action. All NRS chapters, including NRS 630, may be found in the above libraries and on the Internet online at http://www.leg.state.nv.us/
Common law is simply judicially created law. The judicial branch is often the first branch of the government toface controversies and inequities, and is therefore in a unique position to make law. The judiciary also has the authority to review legislative and executive actions to test their constitutionality under the respective federal or state constitutions. In so doing, the judicial branch often creates law, which is just as binding as legislatively enacted law. These judicial laws are in the form of opinions, which must be published in order to be binding or controlling over future similar cases. The precedential level of the decision is dependent upon the court that publishes it. U.S. Supreme Court decisions are binding authority in all courts in the United States when the decision concerns matters of U.S. Constitutional interpretation, whereas Nevada Supreme Court decisions are only binding in Nevada. In states which have appellate courts (not Nevada), binding authority may extend to only a portion of that State falling under that appellate courts’ jurisdiction. Nevada voters have repeatedly refused to authorize an appellate state court system in Nevada. Hence, the only state appellate court of general jurisdiction from our state District Courts is the Nevada Supreme Court. Unlike almost all other states, Nevada citizens have the right to appeal questions of law directly from their District trial court to the highest state court.
The legislatures may codify or legislatively overrule (if not in violation of the state or U.S. constitution) common law made in the federal or state courts. Although much of the common law has been codified, especially in the criminal law area (all criminal law is codified in Nevada), common law is still an important source of current Nevada law. Common law remains particularly significant in rapidly evolving fields such as healthcare.
The federal judicial system is divided into three levels. The first level is comprised of trial courts, also known as district courts. In a district court, either a judge or a jury, or both, may decide a case, depending on which issues are being decided and the federal rules of civil procedure . The federal district courts may hear appeals from some administrative agencies and from the federal bankruptcy courts. A
district court decision that is not appealed has no binding effect on other judicial decisions. Federal district court judges are appointed for life after nomination by the President and approval (advise and consent) by the Senate.
An opinion rendered in a federal district court may be appealed to the U.S. Court of Appeals. There are thirteen Courts of Appeals, called federal circuits, each covering a specific geographicarea. Nevada is a part of the Ninth Circuit, which also encompasses the Pacific and Western states, including Alaska, and Hawaii. A published decision by the Ninth Circuit Court of Appeals is law, and is considered binding legal precedent for lower federal courts and judges deciding similar issues in the Ninth Circuit jurisdiction. Any lower court within the Ninth Circuit hearing a case involving similar legal questions must conform its decision to follow the rule or common law set forth in the published case. Opinions published by the Ninth Circuit Court of Appeals are not binding on Nevada state courts unless the Nevada state
court is hearing a federally based controversy.
The highest court in the United States is the Supreme Court. The U.S. Supreme Court has the discretion to grant certiorari (discretionary review, meaning it only has to hear appellate cases it chooses to hear) to parties seeking appeals from decisions of the federal Courts of Appeals or from the state supreme courts. U.S. Supreme Court decisions are binding on all judges in all courts in America when their decision involves an interpretation of federal law or a constitutional challenge to a state law or decision.
Most state court systems follow the federal model, although some use different terminology to label the various levels of courts. Important state court decisions are printed in state and regional “reporters” and become binding law. Nevada has only two levels of courts, and has a body of law that is relatively small compared to most states. Decisions appealed from state district court trials go directly to the Nevada Supreme Court. The decisions of the Nevada Supreme Court may be found in the Pacific Reporter at any law library and in the Nevada Reports in any public law library in Nevada.
Administrative laws, also known as regulations, are probably the most important laws to anyone working in a regulated profession. On the federal level, Congress delegates to federal agencies the authority to make regulations governing the manner in which entire industries function. Examples of federal regulatory agencies promulgating rules are the Health Care Financing Administration (HCFA), the IRS and the Federal Aviation Administration (FAA). HCFA makes regulations regarding Medicarereimbursement, the IRS regarding taxes, and the FAA regulates the aviation industry. Federal agencies also promulgate regulations that affect hospitals, particularly hospitals that provide emergency care and those accepting Medicare patients. Federal regulations are published in the Code of Federal Regulations (C.F.R)
and may be found online at: http://www.law.cornell.edu/
In Nevada, state regulations are published in the Nevada Administrative Code (N.A.C. or NAC). As with the Nevada Revised Statutes (NRS), regulations relevant to physicians are scattered throughout the NAC, but the bulk of the rules affecting physicians are found in NAC Chapter 630 or NAC 630. An NAC chapter may be far more detailed than the corresponding NRS chapter. Whenever one finds an applicable NRS statute, one must look to see if there is a corresponding NAC chapter which may add law in furtherance of the NRS.
NAC 630 regulations are extensive and important to the daily practice of medicine in Nevada. Every physician should be familiar with both NRS 630 and the NAC 630 regulations which have been adopted by the Nevada State Board of Medical Examiners. NAC regulations are
adopted using procedures detailed in the Nevada Administrative Procedures Act, NRS 233B and in NAC 233B. Find these, as well as all NRS statutes and NAC rules and regulations, online through: http://www.leg.state.nv.us/
THE CIVIL SUIT
This section outlines the basic elements of a civil suit filed against a healthcare practitioner. It is necessarily cursory but may serve as a useful guide for a physician unfamiliar with the legal process who finds himself or herself a defendant in a typical malpractice action after a Medical-Legal Screening Panel decision which the plaintiff decides to pursue into the district trial court. Detailed information on the operation of the Medical Legal Screening Panel and procedures subsequent to the Panel’s findings can be found in detail at NRS 41A. [The complaint must be timely filed . NRS 41A.097 provides that an action for injury or death against a provider may not be commenced more than 4 years after the date of injury or two years after the plaintiff discovers or through reasonable diligence should have discovered the injury unless knew of the injury and concealed the injury. This period is “tolled” or put on hold until thirty days after the claimant is notified of the Medical Legal Screening Panel’s findings when it begins to run again. The exception for children is found in NRS 41A.097(3).]
Initiation and Filing
When a person believes that he had been harmed by the actions, or lack of action, of a physician, often the first step is a complaint filed with the Medical Legal Screening Panel. A number of malpractice actions can be prevented if the persons involved, without admitting liability, communicate with the patient and/or the patient’s family expressing concern, sorrow, or apology for the bad outcome in the case. Many patients and family members understand that medical care can never be perfect, but they wish to express their anger and sorrow about the event. By simply offering the appropriate caring words and allowing the patient and his family to vent their frustrations, a healthcare professional can often stop a retaliatory lawsuit before it begins. In some cases, an offer to pay the medical bills of the injured patient (and to waive billing for past services) will placate the patient enough to prevent the filing of a suit. Offering to pay for or waive medical bills is not an admission of liability or negligence and cannot be usedin a court of law to imply physician liability. Nevada law is consistent with almost all other state laws providing that a offer to pay medical bills is a humanitarian gesture, and as long as not ccompanied by an admission of liability or fault, the offer or payment of a patient’s medical bills cannot be introduced in court as evidence of negligence.
There are many plaintiff attorneys who specialize in medical malpractice actions, most often on a (percentage) contingency basis, in which the patient pays nothing or very little (perhaps costs, although Nevada attorneys can advance costs) unless there is a recovery. Often an attorney’s request for a patient’s medical records is the first indication that a potential lawsuit is being considered.
If the attorney determines that the case is likely to succeed, he will draft a complaint directed to the Medical Legal Screening Panel which alleges the cause of action, usually negligence, and makes a demand for damages (money, usually in the form of “greater than $10,000”). The complaint must be verified (attested and signed) by the patient-plaintiff. Once filed a summons and complaint must then be served upon the physician, usually through personal service, although alternative means, including service by mail or service to a resident corporate agent, are possible. If the physician has not contacted his or her malpractice insurance carrier before this, formal notification of a complaint filed with the Medical Legal Screening Panel mandates contacting the insurance carrier.
The attorney assigned by the carrier will shepherd the complaint through the Screening Panel process. Should the plaintiff choose to litigate his or her case by demanding a trial, the course of the case will generally follow the described format below.
The Pretrial Phase
The pretrial phase of the civil suit may be quite short, or may drag on up to five (5) years. This phase consists primarily of “discovery,” in which each party attempts to learn as many applicable facts about the case as possible, and may also consist of conferences with the judge assigned to the case and the opposing party. In Nevada, the pretrial phase of a malpractice action includes the presentation of
the potential case to a screening panel although the actual lawsuit is not formally filed until the Screening Panel has made its findings (“probable malpractice,” “no probable malpractice,” or there is neither of those decisions).
Discovery generally consists of written interrogatories, depositions, requests for admissions from the other party, and requests for documents and other tangible things. Additional expert witnesses may be chosen and deposed also during this phase, and settlement negotiations may occur. Written interrogatories are usually multi-paged documents containing questions about both background nformation, such as information about the accreditation of the physician, and questions specific to the litigation, such as a request
for information about the events at issue. These questions must be answered truthfully and completely, but, as with all phases of discovery, an attorney should review the answers before they are returned, as privileged information is not discoverable.
A request for admissions asks the party to admit or deny certain facts. Once admitted or denied, these admissions are conclusive, so extreme care needs to be taken in answering these. Generally, facts which are fairly indisputable, such as the dates of the patient’s admission, are mixed in with facts that are in dispute, such as a statement concerning the care of the patient. A typical example would be: “Admit that at 4:00 p.m. on June 1, 1999, Defendant failed to observe Plaintiff’s vital statistics, as required by the post-operative protocol.” Because these requests are often framed in the negative, are often complex, and most important, are often critical to the plaintiff’s case, a physician must carefully verify his or her answers with her attorney before submitting the responses.
Depositions generally take place after a substantial amount of written discovery has occurred. In a deposition, the opposing counsel will ask the physician questions concerning the case, under oath. The physician’s attorney is present, and the plaintiff may choose to be present also. The questions and answers are recorded by a court reporter. The person being deposed is often required to bring supporting documents to the deposition so that they may be examined.
Depositions can seem intimidating, but they are “usually” fairly cordial events in Nevada. During the deposition, the opposing attorney will ask many of the same questions asked in the interrogatories in an attempt to get an inconsistent answer. The details of the disputed events are examined in great detail. Although a person being deposed will have to answer many questions that could not be asked in trial,
your attorney will nonetheless object to these questions, so that the objections are preserved for trial. In any case, the physician’s attorney will be by his or her side throughout the deposition, and can answer any questions the physician may have about the procedure.
Depositions serve the additional purpose of allowing each side to examine the strength of the witness, and his or her ability to relate to the jury. Answer the questions posed to the best of your ability, and take as much time as is necessary to think before answering a question. The court reporter does not record pauses, although the court reporter will record every word. Therefore, always think before responding.
Because almost all professional malpractice cases require that an expert witness explain to the jury the appropriate standard of care and whether or how it was breached, experts are generally hired by both sides. The expert will be deposed by the opposing party, and will testify as to his or her opinion at the trial. Because juries place a great deal of weight on the opinions of experts, the careful choice of an expert can mean the difference between being found liable for the patient’s injury or being absolved of liability.
Relatively few of the cases that are filed actually go to trial once each party realizes the strengths and weaknesses of the case; settlement is often the most viable option. It is your attorney’s duty to report to you any significant or written settlement offers he receives. Carefully evaluate these. Even if you feel pressure from your malpractice insurer, your professional career may possibly be affected by accepting a settlement offer. Reports will be made to the National Practitioner Database and the Board of Medical Examiners will be informed. In cases in which multiple defendants are initially named, the physician may be able to prove through discovery that (s)he was not responsible for the patient’s injury. If so, (s)he may be dismissed from the case.
After discovery is completed, the opposing attorneys, attend a pretrial conference with the judge who will hear the case. During the pretrial conference, the issues that will be tried aredetermined, and issues on which there is no dispute are recognized (stipulated). Final witness lists are exchanged, and disputes (motions) regarding the evidence to be presented are settled. The judge may make a final attempt to settle the case before the trial.
A typical malpractice trial is divided into some distinct phases: jury selection; opening statements by both parties; testimony from witnesses; and closing statements. Of these, the defendant-physician will be most importantly involved in the testimony stage, as the physician’s attorney will conduct almost all of the rest of the trial, with the physician’s approval as to critical decisions.
Each potential juror is asked a series of questions to expose any biases they may have toward either party. Those with biases are excused “for cause.” Attorneys may also exercise up to four (4) “preemptory” dismissals of jurors, in effect a dismissal that can be for any reason, except race. The plaintiff’s attorney will then give his opening statement, laying out his version of the evidence that the jury will see. The defendant-physician’sattorney will follow suit. It is important to note that the plaintiff in a civil suit bears the burden of proving his case by a “preponderance of the evidence,” a standard that is difficult to specifically define, but can be thought of as “more likely than not,” or “about fifty-one percent.”
The plaintiff will then call his witnesses, including the plaintiff himself and his expert(s), to give their version of the facts. These witnesses will be cross-examined by the physician’s attorney. The defendant then calls his or her witnesses, and they are subject to cross examination by the plaintiff. If the defendant physician is called, (s)he will be sworn in by the court clerk, and then questioned. Although testifying in court can be a nerve-wracking experience, it is important to calmly and clearly relate the facts as you remember them and as you previously indicated in your interrogatories and deposition.
In Nevada, before closing arguments, the judge will read the jury a set of jury instructions. Each attorney will then give a closing argument. This will be the first opportunity that your attorney will have to actually argue the evidence presented. The jury deliberates in secret, and then delivers its verdict. In Nevada civil trials, the jury consists of eight jurors and one or two alternates. When six of the eight jurors agree on a verdict, the jury has completed its deliberations. The jury foreman hands the written verdict to the bailiff, who hands it to the judge (who looks at it but does not speak), who hands it to the court clerk. The court clerk reads the verdict. If the jury is unable to reach a verdict, the judge may send them back for further deliberations with fresh instructions. If the (“hung”) jury remains unable to reach a verdict, the plaintiff will have the option of pursuing another trial, if the plaintiff wishes.
The parties are able to appeal an objectionable verdict within a limited period of time. Appellate practice is specialized. Occasionally, an additional attorney may be retained if a case is appealed. If the time for taking an appeal runs without an appeal being filed, the decision is final. If the physician was found negligent, his or her malpractice insurer must pay the damages found by the jury, up to the limits of the policy.
At anytime before the jury reaches a verdict, the opposing sides may settle the case and end the trial. If one party (party A, for example) makes the other party (party B, for example) a firm offer of settlement, in good faith, prior to ten (10) days before the commencement of the trial, and party B refuses that offer of settlement, party B will be liable for legal costs (exclusive of attorney fees) of party A if the
jury finds party B at fault, or finds in favor of party B but awards less than the amount of the settlement offer.
ALTERNATIVES TO LITIGATION
Litigation is an expensive, time consuming process. Some plaintiffs will opt for resolution of their disputes by alternative means, and many who sue in court can be encouraged or convinced to resolve their disputes through other means, such as mediation or arbitration. Some states, including Nevada, a health care provider may contractually agree with a patient to resolve malpractice disputes through arbitration, rather than litigation. (Managed care organizations commonly have a standard arbitration clause as part of their contracts).
Mediation is an informal process through which parties attempt to work out their dispute, including a settlement amount, if any, with the help of a trained mediator. Parties may seek mediation through private agreement, or it may be ordered by the court, particularly when the parties’ dispute is not significant, or involves extremely sensitive issues not particularly suited for litigation.
However, the more commonly used alternative is arbitration. Arbitration is more formal than mediation, but usually less so than litigation, although many of the rules of evidence and procedure may apply to arbitration. Parties usually contractually agree to use rules of American Arbitration Association. Usually each party selects one of the three arbitrators. The third “neutral” arbitrator is then chosen by
the two selected arbitrators. The parties may choose to use only the third neutral arbitrator, or may employ the entire panel of three persons to hear their case. Depending on the agreement between the parties, arbitration is usually binding and has the same weight as a court decision.
Some attorneys and insurers feel it is almost always to the healthcare provider’s advantage to seek alternative dispute resolution whenever possible. Court cases are adversarial by nature, and the time and expense of defending even a winning case can be substantial. In addition, the possibility exists that a sympathetic jury may decide to compensate a plaintiff simply because (s)he is tragically injured, rather than because the physician caused the injury. Arbitration panels tend to be composed of retired judges and experienced attorneys, who are often better able to apply the law, rather than emotion, when reaching a decision.
Ideally, of course, a practicing physician will never have to face a trial, arbitration, or a settlement dilemma. The odds, however, do not favor that ideal. Nevada now has both a medical school and a law school. The law school produces approximately three times as many
lawyers and the medical school does doctors. That ratio portends an increasing incidence of litigation for Nevada physicians.