The Utah bus crash that killed nine and injured 43 others in January of 2008, was followed by an investigation into the cause of the accident. The National Transportation Safety Board (NTSB) concluded recently that driver fatigue was a contributing factor to the crash. More importantly, however, the Board concluded that the National Highway Traffic Safety Administration (NHTSA) failed to implement motorcoach passenger safety recommendations made by the NTSB in 1999 and that this failure was a contributing factor in the severity of the accident.

The recommendations made by the NTSB included on-board electronic recorders to monitor a driver's hours of operation and prevent fatigue, seatbelts to prevent passengers from being ejected in rollovers, stronger roofs and easy-to-open windows that don't shatter. Members of the NTSB are frustrated that the NHTSA has been so slow in implementing these safety standards. More recent accidents elicit the same concerns.

In January of this year a tour bus accident in Arizona killed 7 people and injured at least 10 others. It was reported that all but one of the passengers who died at the scene were ejected from the bus during the accident. It was also reported that the bus rolled at least once before stopping.

The bus accident that occurred just recently on April 29 in California killed 5 and injured dozens. Four of the passengers were ejected from the bus and fell over a guardrail some 60-70 feet onto a set of railroad tracks.

Both accidents call into question several of the proposed safety standards yet to be implemented by the NHTSA. Given that passengers were thrown from the bus in both accidents, it seems likely that the severity of the injuries sustained could have been mitigated if the NHTSA had implemented, at a minimum, the seatbelt regulations recommended by the NTSB a decade ago.

A nonprofit Consumer's Union issued a report April 27, 2009, stating that over a one year period, almost 100,000 patients were subject to increased risks of infection following surgical procedures because of hospitals' failure to follow proven prevention practices.

According to the CDC (Centers for Disease Control), surgical infections account for 20% of all hospital-acquired infections and 8,205 patients die from surgical infections annually.

The Consumer's Union found that 445 hospitals across the country were in low compliance for administering antibiotics before surgery, a procedure "known for nearly 50 years" to be critical for the prevention of infection.

Nevada made the list of states with the highest percentage of low compliance for the practice of administering antibiotics within one hour before surgery to prevent infection and the practice of stopping antibiotics within 24 hours after surgery to prevent complications that contribute to antibiotic resistance. With regard to the practice of administering antibiotics pre-surgery, 30% of Nevada's hospitals were in low compliance, and 57% of Nevada's hospitals were in low compliance of the requirement to stop antibiotics within 24 hours after surgery.

It is difficult to place these numbers into context because not all states require hospitals to report infection rates. According to the Union's report, twenty-five states now require hospitals to report these statistics but Nevada is not one of them.

According to an article published on RGJ.com, Renown Regional Medical Center and Renown South Meadows Medical Center both made the list of low-complying hospitals. Gayle Hurd, who is the administrator for best practices at Renown Health reported that the health system has increased its compliance percentages by 30 points over the last six months.

According to the Union's report, 40-60 percent of all surgical infections could be prevented by following simple infection prevention procedures.

A nonprofit Consumer's Union issued a report April 27, 2009, stating that over a one year period, almost 100,000 patients were subject to increased risks of infection following surgical procedures because of hospitals' failure to follow proven prevention practices.

According to the CDC (Centers for Disease Control), surgical infections account for 20% of all hospital-acquired infections and 8,205 patients die from surgical infections annually.

The Consumer's Union found that 445 hospitals across the country were in low compliance for administering antibiotics before surgery, a procedure "known for nearly 50 years" to be critical for the prevention of infection.

Nevada made the list of states with the highest percentage of low compliance for the practice of administering antibiotics within one hour before surgery to prevent infection and the practice of stopping antibiotics within 24 hours after surgery to prevent complications that contribute to antibiotic resistance. With regard to the practice of administering antibiotics pre-surgery, 30% of Nevada's hospitals were in low compliance, and 57% of Nevada's hospitals were in low compliance of the requirement to stop antibiotics within 24 hours after surgery.

It is difficult to place these numbers into context because not all states require hospitals to report infection rates. According to the Union's report, twenty-five states now require hospitals to report these statistics but Nevada is not one of them.

According to an article published on RGJ.com, Renown Regional Medical Center and Renown South Meadows Medical Center both made the list of low-complying hospitals. Gayle Hurd, who is the administrator for best practices at Renown Health reported that the health system has increased its compliance percentages by 30 points over the last six months.

According to the Union's report, 40-60 percent of all surgical infections could be prevented by following simple infection prevention procedures.

Bill AB 495 has made it to the Senate but further support is needed! The bill seeks to repair some of the harm caused by the KODIN (Keep Our Doctors in Nevada) legislation. Among other things, KODIN put a cap of $350,000 on damages for pain and suffering in medical malpractice suits. The Hepititis outbreak that occurred under the watch of Dr. Desai and his colleages has brought into serious question the amount of protection we should afford physicians when they are blatently negligent. Bill AB 495 will remove the cap on damages as well as some other protections that have proven beneficial for doctors like Desai in the past.

I thank those of you who contacted your representatives to urge them to vote yes on this bill. Now I ask that you contact your senators and urge them to do the same.

Dear Senator,
I strongly support Bill AB 495, which seeks to lift some of the obstacles for injured patients in medical malpractice suits. The KODIN legislation, which implemented these obstacles has caused irreputable harm to injured patients and has given unnecessary protections to doctors like Dr. Dipak Desai. I ask that you please vote yes for Bill AB 495.
Sincerely,
[name]

Terry Care, Chair tcare@sen.state.nv.us
Mark Amodei mamodei@sen.state.nv.us
Valerie Weiner vweiner@sen.state.nv.us
Maurice Washington mwashington@sen.state.nv.us
Allison Copening acopening@sen.state.nv.us
David Parks dparks@sen.state.nv.us
Mike McGinness mmcginness@sen.state.nv.us

NRS 41A.097 provides the limitations period for filing lawsuits regarding medical malpractice and wrongful death claims, among others. The statute has gone through a complicated series of amendments.

Statutory History, from NRS 41A.097:

Until 2002, the statute of limitations for medical malpractice and wrongful death was on a 4 year/2 year scheme. A lawsuit must have been filed within 2 years of discovering the injury, but in any event, no later than 4 years after the date of the injury. The statute read, in part:

• 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.

2002 Amendments. In 2002, NRS 41A.097 was amended. The 2002 amendment created a 4/2, 3/2 scheme. If malpractice occurred before Oct 1, 2002, it was under the 4/2 scheme discussed above. If after October 1, 2002, the lawsuit instead was under a 3/2 scheme. For 2 years, the statute read in part:

• 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 injury occurring prior to October 1, 2002

• 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 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs first, for injury occuring on or after October 1, 2002

KODIN Amendments The "Keep Our Doctors in Nevada" initiative led to a further amendment to the statute of limitations in medical malpractice and wrongful death claims. KODIN changed the two year inner limit to one year for injuries accruing after October 1, 2002. So, if malpractice occurred before Oct 1, 2002, it is still 4/2. If after October 1, 2002, it is 3/1. However, in order that the statute not be applied retroactively, the KODIN only applied to actions accruing after KODIN became effective on November 23, 2004. So, if malpractice occurred on November 22, 2004 (so, under section 2, but pre-KODIN), the 3/2 rule applies, not the KODIN 3/1. If malpractice occurred on November 24, 2004, however, the 3/1 rule applies. The statute now reads, in part:

• 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 injury occurring prior to October 1, 2002

• 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 injury occurring on or after October 1, 2002

Check back for more information about statute of limitations in Nevada!

**This blog is not intended and should not be used as a substitute for competent legal advice from a licensed attorney**

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 (2009). To prove medical malpractice, a plaintiff must first establish the applicable standard of care and then must prove that the alleged conduct of the health care provider deviated from that standard and legally caused the injuries complained of. Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992). As a general rule, a plaintiff must use expert testimony to establish medical malpractice. Jain v. McFarland, 109 Nev. 465, 851 P.2d 450 (1993).

Despite the importance and accepted use of expert testimony in medical malpractice actions, there appears to be a growing trend of national medical associations creating ethics complaint procedures meant to scrutinize experts' testimony. An article in Lawyers USA reported that plaintiff's experts feel they are being singled out and the growing number of ethics complaints may have the "chilling effect" of reducing the number of experts willing to testify in malpractice cases. In response to ethics complaints, some medical experts are filing lawsuits alleging witness intimidation, defamation, and interference with business contracts. According to John Vail, the plaintiff's attorney in a recent defamation case, doctors receive very little money for testifying as an expert witness but could be subject to upwards of $50,000 in costs to defend an ethics complaint. Some doctors, such as Vail's client, Dr. Charles Yancey, are fighting back and are winning.

An article in Nevada Supreme Court News announced recently that the Nevada Supreme Court will be conducting a settlement program to resolve the crisis of backlogged medical malpractice claims in Clark County. The recent influx of 430 claims stemming from the Hepatitis C outbreak at the Endoscopy Centers of Nevada has made it a critical objective of the Supreme Court to settle the more than 400 medical malpractice claims already pending in Clark County.
Through this program, which is referred to as the "medical malpractice settlement marathon," two-member teams of senior judges will conduct settlement hearings during the month of May. The goal is to conduct eighteen or more conferences each week. Thus far, the response from plaintiffs willing to participate in the program has been great and the Court plans to extend the program into June if enough cases are added to the program.
If the program is successful, the long-term goal will be to conduct such marathons twice a year.

In 2004, voters approved Question 3, known as the "Keep Our Doctors in Nevada" (KODIN) initiative. The legislation cut the statute of limitations for filing a medical malpractice suit from two years to one, and set a cap on damages for pain and suffering at $350,000. Given the complicated nature of many malpractice claims, the $350,000 cap on damages makes it financially unsound for lawyers to represent patients on these complicated claims.

The outbreak of Hepatitis C at the Endoscopy Center of Nevada in February 2008, has forced legislators to revisit the protections that the Question 3 initiative gave to health care professionals.

Bill AB 495 seeks to remove this safety net for doctors so that injured patients can once again be adequately compensated for their injuries. I have seen many death and serious injury cases since the passage of KODIN in which injured Nevada residents were deprived of meaningful compensation because of the restrictions imposed by this legislation.

While proponents of KODIN argue that it provides for greater and less costly access to health care, the legislation does nothing to deter medical errors or adequately compensate victims of malpractice.

I strongly encourage you to send a letter similar to the one below, urging your representatives to say "YES" to AB 495.

Dear [Assemblyman/woman]:
I am strongly in support of Bill AB495, which takes unnecessary and dangerous protections away from the healthcare industry.
The so-called KODIN legislation that became effective in 2004 has been a travesty for the citizens of Nevada. There have been too many deaths and serious injuries suffered by insured Nevadans; the pain and suffering for which is grossly under-compensated, if compensated at all.
It is time for us to return to a system where insurance companies and healthcare institutions accept responsibility for their actions!
AB495 is an important bill. Please give it full consideration and please vote for AB495.
Sincerely,
[Your Name]

Representatives:
Bernie Anderson, Chairman banderson@asm.state.nv.us
Tick Segerblom, Vice Chair tsegerblom@asm.state.nv.us
Marilyn Dondero Loop mdonderoloop@asm.state.nv.us
William Horne whorne@asm.state.nv.us
Ruben Kihuen rkihuen@asm.state.nv.us
Mark Mandeno mmanendo@asm.state.nv.us
Harry Mortenson hmortenson@asm.state.nv.us
James Ohrenschall johrenschall@asm.state.nv.us
Bonnie Parnell bparnell@asm.state.nv.us
Barbara Buckley, Speaker bbuckley@asm.state.nv.us
John Oceguera, Majority Leader (Assembly) joceguera@asm.state.nv.us
Stephen Horsford, Majority Leader (Senate) shorsford@sen.state.nv.us