Nevada laws recognize that insurers owe special duties to their insureds and protections are set forth, both in Nevada statutes and in Nevada regulations, to protect insureds from their insurance companies. Nevada law allows for punitive damages to be awarded against an insurer that breaches certain obligations to its insured.

While numerous claims against an insurance company are possible in any given case, Nevada's "bad faith" claim (which is actually called a "breach of the implied covenant of good faith and fair dealing" claim) requires proof of the following elements:

-Plaintiff and defendant entered into a contract;
-Defendant owed a duy of good faith to plaintiff arising from the contract;
-There was a special element of reliance or a fiduciary duty between plaintiff and defendant where defendant was in a superior or entrusted position;
-Defendant breached his duty by engaging in misconduct; and,
-Plaintiff suffered damages as a result of the breach.

An insurance company acts in bad faith when it wrongfully denies coverage to an insured. An insurance policy is considered a contract between you and your insurance carrier. This contract requires that your insurer act in "good faith" toward you.

Insurers frequently attempt to deny claims for any reason they can. Also, even when an insurer acknowledges that a claim or lawsuit is covered by the insurance policy, it often attempts to underpay a claim. To prove bad faith, the insured needs to show that the insurer failed to honor the contract and had no cause not to pay what was due.

Insurers have a duty to deal fairly with insureds. Every insurance contract contains an unwritten covenant or promise of good faith imposed by law upon an insurer to always act fairly toward its insureds in handling their claims.

There are many examples of how an insurer can commit bad faith. These include: failing to promptly and thoroughly investigate a claim; unreasonably delaying payment; unreasonably denying benefits; using unreasonable interpretations in translating policy language; refusing to settle a claim or reimburse you for the entirety of your loss, etc.

Insureds should immediately notify their agents of claims and review their insurance policy as it relates to the claim. Document all events, notes and all contacts and communications made, whether written or verbal, with the insurer. Keep track of the dates and times of communications and the identities of those with whom you spoke.

If you feel like your insurance company has treated you unfairly, please feel free to call or email me and I'll be happy to discuss your case.

The Reno Gazette Journal reports today that dioceses and religious institutions paid almost $400 million in settlements for claims in 2005, according to a survey released Thursday by Roman Catholic officials.

The latest nationwide figures were released by the U.S. Conference of Catholic Bishops, Office of Child and Youth Protection. The figures came from its third annual audit of dioceses across the county to determine how they have complied with the Charter for the Protection of Children and Young People. The charter was developed in 2002 after allegations of sexual abuse of children by priests, deacons and bishops soared. It mandated that all dioceses create safe environments for children and established guidelines for dealing with abuse claims.

The national total for new allegations was down from the 1,092 claims reported in 2004, the study found. Nine of the 783 new claims involved abuse against children that occurred in 2005, the report said, while the remaining 774 new allegations were for abuse that occurred or began between 1960 and 1979.

I like to tell my injury clients that their doctors are the most important witnesses in their cases.

When a case is large or complex, I tell my clients that we can hire expert doctors, but treating doctors tend to have greater credibility with a jury since they 1) are not paid to provide opinions (even though most demand payment to testify); and 2) have actual "hands-on" contact with the client/patient.

Problems arise, though, when doctors do not chart well. Frequently, doctors will leave certain patient comments or complaints uncharted. Often, doctors simply record a statement incorrectly.

I was in a deposition the other day in which defense counsel showed my client a medical record from a treating doctor that indicated that he had been doing stunts on a motorcycle shortly after the accident. In reality, my client, who didn't own a motorcycle, had attended a stunt motorcycle show.

It's almost impossible to ensure that a doctor charts correctly. Similarly, getting a doctor to change a chart entry can be a recipe for an even bigger problem since many doctors will chart that you asked them to change a chart entry. Changed entries always draw suspicion.

When you see your doctor, make sure that you communicate your complaints clearly, repeat yourself and emphasize primary complaints.

Any thoughts on other ways to ensure that a doctor charts accurately are welcome.

Medical malpractice insurance companies pushed hard on tort reform after they lost money (along with everyone else) in the stock market a few years back.

Jordan Margolis, a Chicago personal injury lawyer, recently reported on his blog, that new studies show that we are not in a medical malpractice insurance crisis now.

Magolis notes:

Just as consumer rights organizations predicted, the so-called "Medical Malpractice Insurance Crisis" has ended, not because of tort reform, but because of the cyclical nature of insurance underwriting and investment returns.

According to the American Inusrance Reform study, physician premiums increased 0% in 2005, after a modest 3% increase in 2004. Before that, in 2002, they had skyrocket 63%. The stabilization occurred nationwide, not as a result of any "caps" on victim compensation but, rather, as always occurs every 10 to 15 years, when the "hard" market turned "soft."

http://nashville.injuryboard.com/motor-vehicle-accidents/google-earth-for-auto-accidents.phpMy fellow personal injury law blogger, Ray Runyon, in Nashville, Tennessee, provides a great idea for personal injury attorneys (and their clients) in his blog today.

Google Earth http://earth.google.com/ allows a user to input an address anywhere in the world and then "zoom in" to get a closer view and a real photograph of an accident scene. It can also be used, like Mapquest, to get directions.

This service is free, so the cost of obtaining an aerial photograph, even for a small case, is no longer an issue.

We'll be using those here at my firm in our next arbitration... Who, after all, would question the admissibility of anything Google?

Who would have thought it? The insurance companies lobbied ferociously and spent millions lying to voters about the necessity of medical malpractice reform (the so-called "Keep Out Doctors in Nevada" initiative), and over a year later, medical malpractice premiums have not gone down in any meaningful way.

In a story two weeks ago by the Reno-Gazette Journal and other newspapers, we learned what many already knew; namely, that changes to Nevada law designed to lower doctors' medical malpractice insurance premiums have yet to do so. Instead, fewer attorneys are taking cases and victims of medical malpractice have fewer rights.

"The biggest effect of the law has been a dramatic cut in malpractice lawsuits. Before the law changed, courts in Las Vegas were averaging a little more than 330 new medical malpractice cases a year. Last year, the number was 160.

Trial attorneys say that with the new law it's not worth pursuing a lawsuit in most cases. Pain-and-suffering judgments are now capped at $350,000, which attorneys say isn't much given the cost of hiring experts and preparing for a malpractice trial.

'I have not accepted a case for investigation because of the initiative,' said Bill Bradley of Reno, who was a spokesman for trial attorneys campaigning against the changes to the law. 'It treats victims so unfair.'

The law was changed by the Legislature in 2002 and voters in 2004 after doctors said skyrocketing insurance premiums were forcing many of them from the state. The law capped the judgment amounts in hopes of reducing premiums, the thinking being that insurers would lower premiums because their liability would be lessened."

But insurance companies haven't significantly lowered their rates and probably never will. When does an insurance company ever pass up the opportunity to make money?

The subject of collateral source evidence arises in every medical malpractice lawsuit. Basically, and in this context, collateral source evidence relates to any payment made for medical bills (or any bills) by someone other than the person who brings the suit. The most common type of collateral source payment is that made by an insurance company. Attorneys throughout the country like to argue about whether collateral source evidence is admissible and, if so, whether the amount paid, or the amount billed, constitutes the measure of damages that goes to a jury.

Here in Nevada we have a relatively new and unfortunately restrictive collateral source statute in medical malpractice cases. This statute is lengthy and can be found at http://www.leg.state.nv.us/NRS/NRS-042.html#NRS042Sec021 .

While this provision is the rightful subject of legal analysis for years to come, basically it does the following:

First, it allows a defendant to introduce collateral source evidence.

Second, a plaintiff may introduce evidence of whatever the plaintiff has paid.

Third, and controversially, it states that collateral benefit sources introduced by the defendant may not recover against the plaintiff.

Fourth, and problematically, it allows for periodic payments after a judgment.

While the entire subject may seem a little dry, the collateral source evidence that is introduced is often key to the amount of the judgment that is obtained.

More on this in future columns.

The Reno Gazette Journal http://rgj.com reports today that residents are encouraged by our local government to go out and tie one on for St. Patrick's Day.

Well, more specifically, and with good intent: the Northern Nevada DUI Task Force and the Regional Transportation Commission are sponsoring free rides on Citifare to help reduce alcohol-related traffic accidents among St. Patrick's Day revelers tonight.

Servers and bartenders at the following businesses in Reno will provide bus passes at customer request:

Corrigan's Bit O' Ireland, 1526 S. Wells Avenue; Murphy's of Reno, 3127 S. Virginia St.; 50 Yard Line Bar & Grill, 400 S. Rock Blvd.; Fitzgeralds Casino-Hotel, 255 N. Virginia St.; Foley's Irish Pub, 2780 S. Virginia St.; Harrah's Reno, 219 N. Center St.; Lucke's Saloon, 1455 S. Wells Avenue; Mr. O's, 1495 S. Virginia St.; Napper Tandy's Irish Pub, 541 E. Moana Lane, Ryan's Saloon, 924 S. Wells Avenue; Shea's Tavern, 715 S. Virginia St.; Silver Peak Restaurant, 124 Wonder St. and 135 N. Sierra St. and 1099 Club, 1099 S. Virginia St.

Sparks establishments taking part are as follows:

Great Basin Brewing Co., 846 Victorian Avenue; O'Ski's Pub & Grille, 840 Victorian Avenue and Paddy & Irene's Irish Pub, 1218 Victorian Avenue.

Additionally, some streets will be closed to motorists today through Sunday for St. Patrick's Day celebrations, city officials said.

North Virginia Street between Second and Plaza streets and Commercial Row between Center and North Virginia streets are scheduled for closure through 8 p.m. Sunday. Fitzgeralds Casino-Hotel will have music, an arts and crafts fair and other activities.

Vesta Street from South Wells to Holcomb avenues also will be closed Friday afternoon for festivities at Rapscallion Seafood House & Bar.

Just watch yourself getting on the bus...

The issue of informed consent frequently arises in the context of medical malpractice cases.

I'm used to sitting in depositions in which a medical malpractice defense attorney will hand my client's informed consent over to my client and then proceed with a series of questions intended to confuse. Malpractice victims obviously do not consent to allow a doctor to commit malpractice, but defense attorneys like to use informed consents against a plaintiff in any way possible.

In Nevada, our Supreme Court recently clarified several informed consent issues in the context of a chiropractic malpractice case.

In Bronneke v. Rutherford, 120 Nev. 230, 89 P.3d 40 (2004), the Court held that consent to treatment may
be express or implied. By seeking chiropractic treatment, a plaintiff's consent to the particular technique may be

implied because as a practical matter, health professionals cannot be required to obtain express consent before each touch or test they perform on a patient.

If you are a malpractice victim, ensure that you are properly prepared by counsel with respect to questions that may arise at deposition, and at trial, regarding informed consent.

I am an injury lawyer. Areas of law overlap, though, and I try to make it a habit to understand, generally, employment law in Nevada.

Nevada has always been an employer-oriented state in the view of the Nevada Supreme Court. This held true once again in a noteworthy case that arose from a disgruntled professor's denial of tenure.

There, the Court held that tenure is a multidimensional, subjective, decision-making process where numerous traits and work habits of a professor are considered. The Court went on to say that the University of Nevada, Reno's denial of tenure was discretionary under the contract and not a breach of contract. Faculty appointment at the university level, said the Court, is an area poorly suited for judicial supervision, and thus one where judicial restraint must be exercised. This judicial reluctance to intrude upon university decisions is imbedded in the deeply rooted principles of academic freedom. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. University of Nevada, Reno v. Stacey, 116 Nev. 428, 997 P.2d 812 (2000).

This case makes clear that professors need to think twice before challenging tenure decisions in Nevada.

Florida attorney Bob Carroll notes that a Florida newspaper recently posed questions to consider in the context of whether to impose damage caps:

How much is the lifetime use of a right arm worth?

What is fair compensation for spending 60 years blind because of a doctor's error?

If a surgeon makes a mistake and cuts a nerve during routine surgery, forcing you to eat and drink through a tube for the rest of your life, how much do you deserve in return?

A district court judge mentioned to me yesterday that our Supreme Court was asking for statistics on how quickly medical malpractice cases were taking to get to trial.

Here are a few personal observations.

First, the Vegas backlog is not the Reno backlog. There is not a court-caused backlog in Reno (or in Northern Nevada) of which I am aware.

We do have a related problem, though, and that has to do with defense attorneys who will not set cases within a reasonable period (12-14 months, for instance).

There's a simple solution to this problem:

NRS 41A.061 states as follows:

Dismissal of action for failure to bring to trial; effect of dismissal; adoption of court rules to expedite resolution of actions.

1. Upon the motion of any party or upon its own motion, unless good cause is shown for the delay, the court shall, after due notice to the parties, dismiss an action involving medical malpractice or dental malpractice if the action is not brought to trial within:

(a) Three years after the date on which the action is filed, if the action is filed on or after October 1, 2002, but before October 1, 2005.

(b) Two years after the date on which the action is filed, if the action is filed on or after October 1, 2005.

2. Dismissal of an action pursuant to subsection 1 is a bar to the filing of another action upon the same claim for relief against the same defendants.

3. Each district court shall adopt court rules to expedite the resolution of an action involving medical malpractice or dental malpractice.

Nevada plaintiffs should not be left to the whims of a defense attorney's preferences when it comes to scheduling. Similarly, plaintiff's attorneys should not have to argue for a fair setting in every case. Rather, district court judges should require the parties to set within a reasonable number of months based upon the court's calendar and the court's availability.

Did you know that many insurance companies use computers to evaluate your pain and suffering after an auto accident?

That's right: insurance adjusters review your medical records for various key pieces of information (information that they think is key) and plug that information into a computer program that calculates the value of your injuries.

While the distastefulness of this can be expounded upon all day, insurance companies were never known for their good taste or their compassion. Insurance companies are in the business of making money and to do that they have to keep as much of their money as they can.

Here are some helpful things to keep in mind when it comes to impressing an insurance company's computer.

Most companies look at the number of visits you make to a physical therapist or chiropractor. Additionally, most companies note and input various types of data regarding the following:

Delays or gaps in treatment.

How often medications were used and which medications were used.

Preexisting injuries.

Subjective complaints.

Objective findings.

Permanent impairment issues and whether they are supported by the medical chart.

Charting by your doctors and whether there are supportive entries.

Your prognosis upon completion of treatment.

Type of treatment: medical doctor, chiropractor, alternative care provider, etc.

Diagnostic test results.

Whether your pain radiated or radiates to other parts of your body (radiculopathy).

Plaintiffs attorneys work to humanize you to both insurance companies and to juries. It may not be clear whether anyone can feel your pain but you. One thing's for sure, though: a computer doesn't.