Ever wonder how easy it is for just anyone to access your healthcare records? That's a complex subject that we'll explore more of here at this blog.

Here's an initial observation. I received an email today from a national litigation support service informing me that for a price I could discover a 5-year list of all prescription information with respect to a given client or defendant.

Of course, one assumes that releases are necessary. And any such information could have important ramifications on the manner in which a case was handled.

But it's still worth thinking about how your pharmaceutical history is becoming increasingly electronic and widely discoverable.

This will be an ongoing topic starting today. As a technology-obsessed attorney, our privacy as healthcare consumers interests (distresses) me.

A recent example: I had a small, simple auto accident case in which my client was the passenger in a vehcle that was hit. Clear liability any way you look at it. My client broke bones. Her only medical claim related to those broken bones.

Nevertheless, opposing counsel felt the need to make her entire medical history (my client was in her 40's) part of an inquiry. That's routine enough for defense counsel, but what wasn't so routine was that opposing counsel obtained 10 years of my client's medical records and then sent them to her client/insured.

Now why does her client, the defendant driver in an ordinary auto accident, need a stack of my client's medical records?

More thoughts on this issue next blog.

Last blog we looked at the definition of attorney/client privilege in Nevada.

This blog we examine the definitions within the definition.

For instance, under Nevada law, the term "client" is defined as follows:

49.045. "Client" defined

"Client" means a person, including a public officer,
corporation, association or other organization or entity, either public
or private, who is rendered professional legal services by a lawyer,
or who consults a lawyer with a view to obtaining professional legal
services from him.

Interestingly, there is always an argument that you become a "client" of an attorney, at least for the purpose of obtaining privilege, as soon as you talk to an attorney about your case and regardless of whether you retain him or pay him.

Let's look at a few other definitions:

49.055. "Confidential" defined

A communication is "confidential" if it is not intended to
be disclosed to third persons other than those to whom disclosure
is in furtherance of the rendition of professional legal services to
the client or those reasonably necessary for the transmission of the
communication.

49.065. "Lawyer" defined

"Lawyer" means a person authorized, or reasonably believed
by the client to be authorized, to practice law in any state or nation.

*Note here that the lawyer may not even be licensed to practice in Nevada, but if you think he is, privilege may apply.

49.075. "Representative of the client" defined

"Representative of the client" means a person having
authority to obtain professional legal services, or to act on advice
rendered pursuant thereto, on behalf of the client.

49.085. "Representative of the lawyer" defined

"Representative of the lawyer" means a person employed by
the lawyer to assist in the rendition of professional legal services.

Next blog I'll set out the legal list of who may claim this privilege and what exceptions exist.

One of the most common privileges we hear about is the attorney/client privilege.

The general scope of this privilege is set out in NRS 49.095 and provides:

49.095. General rule of privilege

A client has a privilege to refuse to disclose, and to prevent
any other person from disclosing, confidential communications:

1. Between himself or his representative and his lawyer or

his lawyer's representative.

2. Between his lawyer and the lawyer's representative.

3. Made for the purpose of facilitating the rendition of
professional legal services to the client, by him or his lawyer to a
lawyer representing another in a matter of common interest.

Lawyers are fond of defining things and the Nevada statutes contain numerous definitions and qualifications that effect this privilege. More on those next blog.

This is one of a number of articles that deal with basic legal concepts when you're in an accident in Nevada.

Accidents, like the challenges of life, aren't always straightforward, and defense attorneys are adept at making the most of complexity.

So what happens when you're in an accident and you may have some fault, too?

Nevada law is generally clear on this issue. N.R.S. 41.141 provides, in part, as follows:

41.141. When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants

1. In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or his decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

2. In those cases, the judge shall instruct the jury that:

(a) The plaintiff may not recover if his comparative negligence or that of his decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.

(b) If the jury determines the plaintiff is entitled to recover, it shall return:

(1) By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to his comparative negligence; and
(2) A special verdict indicating the percentage of negligence attributable to each party remaining in the action.

Basically, this means that if your case ends up at an arbitration or a trial, you will be barred from recovery only if you are determined to be more than 50% at fault.

If you are determined to be 50% or less at fault, then whatever award you receive will be reduced by your percentage of fault.

The full text of this statute and others can be found at http://www.leg.state.nv.us/law1.cfm

Many victims of medical malpractice who see an attorney may wonder whether a proposed fee agreement is fair.

Across the country, standard attorney's fee contingencies in medical malpractice cases range from 33% to 40% of gross or net recovery, and higher contingency fees are not uncommon. Plaintiff's attorneys have long reasoned that medical malpractice cases are especially expensive and particularly risky. Additionally, medical malpractice cases often involve complex issues and require an attorney to have a background in medical issues and an ability to find and work with medical experts.

In Nevada, the medical malpractice insurance industry recently took matters into its own hands and managed to push a broad ballot initiative into law that slashed attorney's fees in all Nevada medical malpractice cases. While arguably of benefit to medical malpractice plaintiffs, the law has had the intended consequence of forcing many attorneys into other areas of practice. Hence, there are now fewer medical malpractice attorneys in Nevada than there were two years ago, and in many parts of Nevada there weren't an abundance of medical malpractice attorneys to begin with.

So what does the new law do to attorney's fees?

N.R.S. 7.095 now provides a convoluted scheme for attorney compensation in medical malpractice cases and provides:

7.095. Limitations on contingent fees for representation of persons in certain actions against providers of health care

1. An attorney shall not contract for or collect a fee contingent on the amount of recovery for representing a person seeking damages in connection with an action for injury or death against a provider of health care based upon professional negligence in excess of:

(a) Forty percent of the first $50,000 recovered;
(b) Thirty-three and one-third percent of the next $50,000 recovered;
(c) Twenty-five percent of the next $500,000 recovered; and
(d) Fifteen percent of the amount of recovery that exceeds $600,000.

2. The limitations set forth in subsection 1 apply to all forms of recovery, including, without limitation, settlement, arbitration and judgment.

3. For the purposes of this section, "recovered" means the net sum recovered by the plaintiff after deducting any disbursements or costs incurred in connection with the prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and general and administrative expenses incurred by the office of the attorney are not deductible disbursements or costs.

4. As used in this section:

(a) "Professional negligence" means 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 term does not include services that are outside the scope of services for which the provider of health care is licensed or services for which any restriction has been imposed by the applicable regulatory board or health care facility.
(b) "Provider of health care" means a physician licensed under chapter 630 or 633 of NRS, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, medical laboratory director or technician, or a licensed hospital and its employees.

Prospective medical malpractice clients often ask me about attorney's fees and my answer is always the same: attorneys in Nevada are now regulated by law and all attorneys are limited, by statute, with respect to what they can charge.

You can find other statutes of interest at http://www.leg.state.nv.us/law1.cfm