I spend a fair portion of my life in doctor depositions. Most depositions in an attorney's world take place in law firm conference rooms where we can spread out our papers and our notebooks and look a deponent in the eye from across the table.

Doctor's depositions are different, though. Unless a doctor is a defendant in a malpractice action, most doctor depositions take place at the doctor's office. And most doctor's offices aren't particularly big or particularly nice.

I found myself in one such deposition a few days ago. My client (the plaintiff) was present, the defense attorney was there, a court reporter was there, the treating doctor was there. I had a huge notebook with over 1000 pages of medical records, my client, a senior citizen, had her walker, the court reporter had her notebook computer, her stengraphy machine and the rest of her court reporter parapheralia, and there we were, all crammed into some wealthy doctor's hot, messy, crowded space.

And then something mystical occured: the doctor realized that we couldn't all fit and moved the entire show up to his medical group's lavish board room. We all spread out, leaned back, pivoted around in plush leather chairs and the depositon proceeded to conclusion in the inner sanctum.

The surprises, however, weren't finished, because when the deposition ended, and I thanked the doctor (diplomatically) for moving us out of his tiny space, he confessed to me why we were ever crammed together in the first place.

"Doctors," he said, "don't like depositions and they don't want to spend their time with lawyers. The more uncomfortable a lawyer is, the sooner a deposition is likely to end. And that's why we hold depositions in our offices."

As I walked out I wondered why I hadn't realized this perfectly logical fact years ago.

This will be the first in a series of thoughts about the role that doctors play in injury cases.

Doctors can be treating doctors, or expert witnesses, or either but not both, or both. This is a subject of some complexity that I will delve into more in the future; for now, though, let's talk about treating doctors.

I was recently in a deposition in a case in which my partially disabled client was on a motorized scooter when she was hit in a crosswalk by a young man driving a truck. She required extensive medical treatment, saw numerous orthopedic doctors and surgeons, and had to undergo knee replacement.

One of those surgeons, a joint replacement specialist, was the subject of the deposition. Under questioning by the
defense, he stated that he could not, to a reasonable degree of medical certainty (the phrase that many lawyers

use to describe the standard for burden of proof) relate my client's need for knee replacement surgery to the fact that she had been hit by a truck in a crosswalk, had been thrown a substantial distance, and had extensive pain complaints relating to her knee after the accident. In fact, and worse, he testified, to a reasonable degree of medical certainty, that her knee replacement was not due to the accident.

My client's medical chart reflected some prior knee complaints, but not nearly the same type and number of complaints as she had after the accident. After the defense was finished, I asked the doctor whether subjective complaints of pain were a potential factor in determining whether knee replacement was necessary. He stated that this was a major factor in this type of determination. I then asked him to tell me the frequency and character of my client's knee complaints prior to the accident as opposed to the frequency and character of my client's knee complaints after the accident. He then stated that he had not had time to review the entire chart, despite the fact that I had offered to pay him to do so.

At the end of the deposition we were left with a witness who had "neutralized" the value of his testimony for either side by virtue of his lack of preparation. My client, who truly had many more serious pain complaints after the accident than she had before it, lost a potentially valuable witness.

The moral of this story, to the extent that there is one, is that treating doctors are often dangerous witnesses for their patients. I tell my clients that treating doctors may "trump" hired experts at trial since juries tend to believe a doctor who examined and cared for a patient as opposed to a doctor who is paid for the sole purpose of testimony.

Many treating doctors, however, are alarmingly unaware of their own patient's medical history and find deposition testimony tiresome and annoying, even though they are invariably paid $500.00 to $1000.00 an hour by one attorney or another.

The role of treating doctors in the outcome of injury cases cannot be overstressed, and I will discuss other aspects of this important subject in the future.

Although medical malpractice is really a form of negligence, it must be proven through the use of expert witnesses. Doctors are usually needed to evaluate cases and to testify against other doctors. Similarly, nurses are frequently required to testify against other nurses. Defense lawyers hire their own experts in an effort to defeat the plaintiff's case. In medical malpractice trials, the jury is usually left to decide which side's experts offered a more credible explanation of a health care provider's conduct and whether such conduct fell below the standard of care required under the circumstances. It is a frightening aspect of modern medicine that lawyers for both sides can generally find well-credentialed doctors to support their positions.

Relatively recent changes to Nevada's medical malpractice statutes now require that all medical malpractice cases filed in Nevada's courts contain an expert affidavit.

Nevada statute NRS 41A.071 provides:

Dismissal of action filed without affidavit of medical expert supporting allegations. If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a
medical expert who practices or has practiced in an area that is substantially similar to the type of practice

What this means, in effect, is that victims of malpractice must find an expert witness before a case is first filed. The defense, by contrast, is not required to submit an affidavit with their answer.

Nevada medical malpractice plaintiffs are at a significant disadvantage from the start of a case: first, because our new one-year statute of limitations (thanks to the insurance and medical industry lobbies) makes it extremely difficult to gather records and gain a review in this length of time; and second, because plaintiffs divulge a great deal about their case from the start while defendants can wait until close to trial to reveal their expert theories.

Nevada's 2004 ballot initiative, concieved and created by the U.S. medical malpractice insurance lobby, and naively passed by Nevada's voters (who thought that they were voting to "keep doctors from moving out of Nevada"),contains a new one-year statute of limitations that severely curtails the rights of Nevada's medical malpractice victims.

Nevada statute 41A.097 provides:

1. Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:

(a) Injury to or the wrongful death of a person occurring before October 1, 2002, based upon alleged professional negligence of the provider of health care;

(b) Injury to or the wrongful death of a person occurring before October 1, 2002, from professional services rendered without consent; or

(c) Injury to or the wrongful death of a person occurring before October 1, 2002, from error or omission in practice by the provider of health care.

2. Except as otherwise provided in subsection 3, an action for injury or death against a provider of health care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for:

(a) Injury to or the wrongful death of a person occurring on or after October 1, 2002, based upon alleged professional negligence of the provider of health care;

(b) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from professional services rendered without consent; or

(c) Injury to or the wrongful death of a person occurring on or after October 1, 2002, from error or omission in practice by the provider of health care.

3. This time limitation is tolled for any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to him.

4. For the purposes of this section, the parent, guardian or legal custodian of any minor child is responsible for exercising reasonable judgment in determining whether to prosecute any cause of action limited by subsection 1 or 2. If the parent, guardian or custodian fails to commence an action on behalf of that child within the prescribed period of limitations, the child may not bring an action based on the same alleged injury against any provider of health care upon the removal of his disability, except that in the case of:

(a) Brain damage or birth defect, the period of limitation is extended until the child attains 10 years of age.

(b) Sterility, the period of limitation is extended until 2 years after the child discovers the injury.

This statute, which purports to affect cases retroactively, will no doubt be the subject of legal challenges. In the meantime, Nevada's medical malpractice victims must act quickly to obtain counsel and have their cases evaluated. Delay is no longer an option.

There are numerous types of courts in Nevada, but injury cases are generally handled in the Nevada district court system.

Generally speaking, there are two phases to most cases: 1) the settlement phase, and 2) the litigation phase.

The litigation phase of a case can be divided into three distinct stages: 1) the complaint and answer stage, 2) the discovery stage, and 3) the trial stage.

This is the second of a series of articles that pertains to the stages of litigation in Nevada district courts cases. This article will focus on the discovery stage.

Discovery Stage

"Discovery" is the broad term used to characterize the various tools a lawyer can employ to gain information that may be valuable to the prosecution or the defense of a case.

In most cases, the parties must meet for the purpose of an early case conference within a certain period of time after an answer is filed. The parties must exchange, at this conference, lists of potential witnesses and lists of documents with copies of those documents. Often, a trial or arbitration date is established at the early case conference. Injured litigants should note that a hearing date is important to the progress of a case. Defense lawyers often wait until a case is close to arbitration or trial to make meaningful settlement offers.

After an early case conference other types of discovery are possible. These include:

- Depositions, at which witnesses are sworn and their testimony is recorded.
- Interrogatories, or written questions to the other side.
- Requests for production of documents to a party.
- Requests for party admissions.
- Requests to inspect or to test.
- Records subpeonas, to obtain records from nonparties.

Although most lawyers do not copy their clients with all of the discovery obtained in course of a case, clients should feel free to sit down and discuss the progress of discovery with their counsel. Cases are often won or lost in the discovery stage.

Sometimes an understanding of the law can help to prevent an automobile or motorcycle accident. Ever wonder about the law that pertains to vehicles approaching crosswalks? In Nevada, there are both statutes and ordinances that apply.

For instance, Nevada state law provides the following:

NRS 484.325 Right-of-way in crosswalk; obedience to signals and other devices for control of traffic. Except as otherwise provided in NRS 484.327, 484.328 and 484.356:

1. When official traffic-control devices are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be so to yield, to a pedestrian crossing the highway within a crosswalk when the pedestrian is upon the half of the highway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the highway as to be in danger.

2. A pedestrian shall not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

3. Whenever a vehicle is stopped at a marked crosswalk or at an unmarked crosswalk at an intersection, the driver of any other vehicle approaching from the rear shall not overtake and pass the stopped vehicle until the driver has determined that the vehicle being overtaken was not stopped for the purpose of permitting a pedestrian to cross the highway.

4. Whenever signals exhibiting the words "Walk" or "Don't Walk" are in place, such signals indicate as follows:

(a) While the "Walk" indication is illuminated, pedestrians facing the signal may proceed across the highway in the direction of the signal and must be given the right-of-way by the drivers of all vehicles.

(b) While the "Don't Walk" indication is illuminated, either steady or flashing, a pedestrian shall not start to cross the highway in the direction of the signal, but any pedestrian who has partially completed his crossing during the "Walk" indication shall proceed to a sidewalk, or to a safety zone if one is provided.

(c) Whenever the word "Wait" still appears in a signal, the indication has the same meaning as assigned in this section to the "Don't Walk" indication.

(d) Whenever a signal system provides a signal phase for the stopping of all vehicular traffic and the exclusive movement of pedestrians, and "Walk" and "Don't Walk" indications control pedestrian movement, pedestrians may cross in any direction between corners of the intersection offering the shortest route within the boundaries of the intersection when the "Walk" indication is exhibited, and when signals and other official traffic-control devices direct pedestrian movement in the manner provided in this section and in NRS 484.283.

The Las Vegas Municipal Code adds the following:

11.30.020 Right-of-way--Darting before vehicles.

When traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite one-half of the roadway as to be in danger, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield. A pedestrian's right-of-way in a crosswalk is modified under the condition and as stated in Section 11.30.060.

11.30.030 Passing vehicle stopped at crosswalk.

Whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

11.30.040 Right half of crosswalks.

Pedestrians shall move, whenever practicable, upon the right one-half of crosswalks.

11.30.050 Route of crossing roadway.

No pedestrian shall cross a roadway at any place other than by a route at right angles to the curb or by the shortest route to the opposite curb except in a crosswalk.

11.30.060 Crossing outside crosswalk.

(A) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

(B) Any pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles upon the roadway.

(C) The foregoing rules in this Section shall have no application under the conditions stated in Section 11.30.070 when pedestrians are prohibited from crossing at certain designated places.

11.30.070 Crosswalk use required when.

(A) Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a crosswalk.

(B) No pedestrian shall cross a roadway other than in a marked crosswalk or within an unmarked crosswalk in a central traffic district or in any business district.

Similarly, the Reno Municipal Code states:

Sec. 6.06.350. Right-of-way in crosswalks.

(a) Except as provided in section 6.06.365, when official traffic-control devices are not in place or not in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be so to yield, to a pedestrian crossing the highway within a crosswalk when the pedestrian is upon the half of the highway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the highway as to be in danger.
(b) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
(c) Whenever a vehicle is stopped at a marked crosswalk or at an unmarked crosswalk at an intersection, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle until such driver has determined that the vehicle being overtaken was not stopped for the purpose of permitting a pedestrian to cross the highway.
(d) Whenever signals exhibiting the words "Walk" or "Don't walk" are in place, such signals shall indicate as follows:
(1) While the "Walk" indication is illuminated, pedestrians facing the signal may proceed across the highway in the direction of the signal and shall be given the right-of-way by the drivers of all vehicles.
(2) While the "Don't walk" indication is illuminated, either steady or flashing, a pedestrian shall not start to cross the highway in the direction of the signal, but any pedestrian who has partially completed his crossing during the "Walk" indication shall proceed to a sidewalk, or to a safety zone if one is provided.
(3) Whenever the word "Wait" still appears in a signal, such indication has the same meaning as assigned in this section to the "Don't walk" indication.
(4) Whenever a signal systems provides a signal phase for the stopping of all vehicular traffic and the exclusive movement of pedestrians, and "Walk" and "Don't walk" indications control such pedestrian movement, pedestrians may cross in any direction between corners of the intersection offering the shortest route within the boundaries of the intersection when the "Walk" indication is exhibited, and when signals and other official traffic control devices direct pedestrian movement in such manner as provided in this section and in section 6.06.075.

Sec. 6.06.355. Use of right half of crosswalks.

Pedestrians shall move, whenever practicable, upon the right-half of crosswalks.