http://www.nevadainjuriesblog.com/ en-us Copyright 2010 Thu, 11 Mar 2010 14:17:32 -0800 http://www.sixapart.com/movabletype/ http://blogs.law.harvard.edu/tech/rss Cromer v. Wilson, 126 Nev. Adv. Op. No. 11 (March 11, 2010), the Nevada Supreme Court addressed the effect of this conclusive evidence of liability on the issues of comparative negligence and damages. The defendant was convicted of felony DUI and felony reckless driving in an accident that severely injured the plaintiff. The district court had allowed the jury to decide the issue of liability instead of granting the plaintiff's motion for summary judgment. The jury found the defendant liable. In determining liability, the jury was allowed to consider comparative negligence, and it found the plaintiff 25% at fault and the defendant 75% at fault. The jury returned a verdict in favor of the plaintiff and awarded $4,530,785.50 in damages. On appeal, the Nevada Supreme Court held that NRS 41.133 establishes a conclusive presumption of liability when an offender has been convicted of the crime that resulted in the injury to the victim. Thus, the district court should have granted the plaintiff's motion for summary judgment on the issue of liability, and the trial should have resolved only the issue of damages. However, the Court also held that NRS 41.133 does not abrogate the law regarding comparative negligence or damages. Therefore, while NRS 41.133 establishes a conclusive presumption of liability, a defendant may argue comparative negligence pursuant to NRS 41.141 to reduce an award of damages at a trial as to damages only.]]> http://www.nevadainjuriesblog.com/2010/03/nrs_41133_liability_does_not_a.html http://www.nevadainjuriesblog.com/2010/03/nrs_41133_liability_does_not_a.html Nevada Law March 11, 2010 2:17 PM Reno Gazette Journal, the Reno Police are relaunching a $36,000 campaign to increase traffic safety. Under the campaign, pedestrians and bicyclists may receive citations for violating safety laws. Reno Wheelmen official Spencer Ericksen estimates that 25 percent of bicyclists regularly break traffic laws. Common problem areas are bicyclists failing to stop at stop signs, riding against traffic, and riding on sidewalks. Bicyclists are not allowed to ride on sidewalks in downtown Reno, but they can ride on sidewalks elsewhere as long as they yield to pedestrians. The Reno Police Dept. offers tips to bicyclists and motorists: Bicyclist safety tips:

• Ride with traffic, not against it.
• Make turns the same way drivers do, using the same turn lanes.
• Signal turns.
• Maintain bicycles, including checking brakes and tires.
• In darkness, use good reflectors and wear bright clothing.
• Wear helmets.
• Use a rear view mirror attached to a helmet, glasses or handle bars.

Motorist Safety Tips

• Look for bicyclists before opening car doors when parked on the street.
• Do not overtake a bicyclist and make a right turn in front of the bicyclist.

]]> http://www.nevadainjuriesblog.com/2010/03/reno_traffic_safety_campaign_f.html http://www.nevadainjuriesblog.com/2010/03/reno_traffic_safety_campaign_f.html Safe Living March 9, 2010 1:51 PM Saylor v. Arcotta, 126 Nev. Adv. Op. No. 9 (March 4, 2010), a taxicab passenger was injured when his cab was in an accident. The passenger died during surgery after being hospitalized for a heart attack two weeks after the taxicab accident. The passenger's heirs sued Jack Saylor, the taxicab driver, and the cab company, Deluxe Taxi Cab Service. Saylor and the Deluxe Taxi learned through discovery that medical malpractice may have been the cause of the passenger's death. Saylor and Deluxe Taxi filed a third-party complaint against the passenger's treating physicians, respondents Dr. Karen Arcotta, Dr. Muhammad Bhatti, and Dr. Nancy Donahoe, for equitable indemnity and contribution. The one year statute of limitations for medical malpractice imposed by NRS 41A.097 had already passed. The issues presented to the Court were what limitations period applied to the third-party actions for equitable indemnity and contribution. Equitable Indemnity The Court held that "equitable indemnity claims that arise out of medical malpractice allegations are not subject to NRS 41A.097(2)'s limitations period for medical malpractice claims, but are instead subject to NRS 11.190(2)(c)'s limitations period for actions on implied contracts." Contribution The Court explained that "a contribution claim arises 'where a judgment has been entered in an action against two or more tortfeasors for the same . . . wrongful death.' " Pursuant to NRS 17.285(3), a contribution claim must be filed within 1 year after the judgment has become final by lapse of time for appeal or after appellate review. Thus, the Court concluded that "once a contribution claim arises, it is subject to a one-year statute of limitations." Click here for the Advanced Opinion]]> http://www.nevadainjuriesblog.com/2010/03/equitable_indemnity_and_contri.html http://www.nevadainjuriesblog.com/2010/03/equitable_indemnity_and_contri.html Nevada Law March 4, 2010 12:48 PM Law Vegas Review Journal reports that Nevada fines its motorists $250 for driving while uninsured and $500 for driving without valid registration, but the offenders are difficult to catch. According to the journal, "critics raised the privacy issue, although a spokesman for InsureNet said any information collected by the company would go into a national law enforcement computer network, and the company itself would not retain the information." No other state currently uses InsureNet to verify the insurance status of motorists. ]]> http://www.nevadainjuriesblog.com/2010/02/nevada_assembly_rejects_propos.html http://www.nevadainjuriesblog.com/2010/02/nevada_assembly_rejects_propos.html Nevada Law February 25, 2010 11:32 AM Senate report released Saturday. Among the report's finding was that "The totality of evidence suggests that GSK was aware of the possible cardiac risks associated with Avandia years before such evidence became public." The report concluded that "GSK had a duty to sufficiently warn patients and the FDA of its concerns in a timely manner." The report concluded that GSK failed to do so: "GSK executives intimidated independent physicians, focused on strategies to minimize findings that Avandia may increase cardiovascular risk, and sought ways to downplay findings that the rival drug ACTOS (pioglitazone) might reduce cardiovascular risk." According to the Associated Press, the FDA had "ordered a warning to be included on Avandia's label in 2007, saying that it might increase the risk of heart attacks, though the data on those risk was inconclusive." The Senate Report asks the FDA "why it allowed a clinical trial of Avandia to continue even after the agency estimated that the drug caused 83,000 heart attacks between 1999 and 2007." The FDA has issued a statement that review of Avandia is "ongoing," but has offered the following advice for patients who take rosiglitazone (Avandia):

• Don't stop taking your medication without talking with your health care professional.
• Discuss any questions or concerns you have about rosiglitazone with your health care professional.
• Read the Medication Guide that comes with each rosiglitazone prescription to better understand the risks and benefits of your medication.
• Report any side effects with rosiglitazone to FDA's MedWatch program either online, by regular mail, by fax, or by phone.

]]> http://www.nevadainjuriesblog.com/2010/02/avandia_controversy_senate_rep.html http://www.nevadainjuriesblog.com/2010/02/avandia_controversy_senate_rep.html Defective & Dangerous Products February 23, 2010 12:14 PM Law.com, the lawsuit discusses the "school district's official announcement of the launch of a program to provide every student with a laptop, which billed it as 'an authentic mobile 21st century learning environment' designed to ensure that 'all students have 24/7 access to school based resources.' " The AP reports that the webcams would only be activated by the schools' technology and security departments when a laptop was reported lost or stolen. The suit was filed by student Blake Robbins and his parents after Robbins was confronted by the assistant principal at his high school. The assistant principal allegedly told Robbins that he had been caught doing something inappropriate at home. The lawsuit doesn't indicate whether Robbins' laptop had been reported lost or stolen. The suit alleges violations of the Electronic Communications Privacy Act, the Computer Fraud and Abuse Act, the Stored Communications Act, and Pennsylvania's wiretap statute. It also alleges violations of the Fourth Amendment, and federal civil rights laws.]]> http://www.nevadainjuriesblog.com/2010/02/21st_century_learning_environm.html http://www.nevadainjuriesblog.com/2010/02/21st_century_learning_environm.html Personal Injury Law February 19, 2010 9:01 AM NY Times, "The uncommon prosecution had ignited deep concern among health care workers and advocates for whistle-blowers about a potential chilling effect on the reporting of malpractice." Mitchell was acquitted after jury deliberations of only one hour. The NY Times reports that "Rebecca M. Patton, president of the American Nurses Association, called the verdict 'a resounding win on behalf of patient safety.' Ms. Patton said, 'The message the jury sent is clear: the freedom for nurses to report a physician's unsafe medical practices is non-negotiable.' " Mitchell has filed a civil complaint in federal court against the county and the hospital, seeking redress for violations of her due process rights, freedom of speech, violation of a Texas whistleblower statute, and tortious interference with business, among other things. ]]> http://www.nevadainjuriesblog.com/2010/02/texas_nurse_acquited_at_trial.html http://www.nevadainjuriesblog.com/2010/02/texas_nurse_acquited_at_trial.html Medical Issues February 16, 2010 7:36 AM Chicago Tribune notes, the Court struck down the under the Illinois Constitution because it "violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts." While the parties arguing for upholding the statute cited the several states which have enacted medical malpractice damage caps, the Illinois Supreme Court refused to uphold the statute based on the status quo. According to the Court's opinion, "That 'everybody is doing it," is hardly a litmus test for the constitutionality of the statute." ]]> http://www.nevadainjuriesblog.com/2010/02/illinois_cap_on_medical_malpra.html http://www.nevadainjuriesblog.com/2010/02/illinois_cap_on_medical_malpra.html Medical Issues February 4, 2010 1:22 PM USDOT press release cited the dangers of texting while driving as the motivation for the ban: Federal Motor Carrier Safety Administration (FMCSA) research shows that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every 6 seconds while texting. At 55 miles per hour, this means that the driver is traveling the length of a football field, including the end zones, without looking at the road. Drivers who text while driving are more than 20 times more likely to get in an accident than non-distracted drivers. Because of the safety risks associated with the use of electronic devices while driving, FMCSA is also working on additional regulatory measures that will be announced in the coming months.]]> http://www.nevadainjuriesblog.com/2010/02/commercial_drivers_prohibited.html http://www.nevadainjuriesblog.com/2010/02/commercial_drivers_prohibited.html February 4, 2010 5:49 AM

• Handheld Cell Phone Bans for All Drivers: 6 states (California, Connecticut, New Jersey, New York, Oregon and Washington), the District of Columbia and the Virgin Islands prohibit all drivers from talking on handheld cell phones while driving.
• With the exception of Washington State, these laws are all primary enforcement--an officer may ticket a driver for using a handheld cell phone while driving without any other traffic offense taking place.
• All Cell Phone Bans: No state completely bans all types of cell phone use (handheld and hands-free) for all drivers, but many prohibit cell phone use by certain segments of the population.
• Novice Drivers: 21 states and the District of Columbia ban all cell use by novice drivers.
• School Bus Drivers: In 17 states and the District of Columbia, school bus drivers are prohibited from all cell phone use when passengers are present.
• Text Messaging: 19 states, the District of Columbia and Guam now ban text messaging for all drivers. Fifteen states, D.C., and Guam have primary enforcement. In the other four states, all driver texting bans are secondarily enforced. Some states have limited texting bans.
• Novice Drivers: 9 states prohibit text messaging by novice drivers.
• School Bus Drivers: 1 state restricts school bus drivers from texting while driving.

Nevada, however, is one of six states that has preemption laws that prohibit local jurisdictions from enacting cell phone and/or texting while driving bans.]]> http://www.nevadainjuriesblog.com/2010/02/cell_phone_and_texting_bans_in.html http://www.nevadainjuriesblog.com/2010/02/cell_phone_and_texting_bans_in.html Automobile Accidents February 2, 2010 11:39 AM The National Safety Council and the U.S. Dept. of Transportation announced a new, non-profit advocacy group, FocusDriven. The advocacy group's mission is to "Support victims of cell phone distracted driving and families of victims, and increase public awareness of the dangers of cell phone distracted driving by putting a human face on the disastrous impact of this behavior, in order to promote corresponding public policies, programs and personal responsibility." A U.S. Dept. of Transportation news release states that "FocusDriven is a direct outgrowth of the September 2009 national Distracted Driving Summit in Washington, DC called by Secretary LaHood. Since the two-day meeting that brought together affected families, law enforcement, researchers, public officials and others, family members of distracted driving victims have worked to establish an advocacy organization with support from the Department of Transportation and the National Safety Council (NSC), a nonprofit organization that uses leadership, research, education and advocacy to prevent injuries and save lives. FocusDriven's new website, www.focusdriven.org, hosts information on distracted driving, help for victims and family members, and ways to get involved." For more info on the new group and its vision, visit FocusDriven.org. http://www.nevadainjuriesblog.com/2010/02/focusdriven_to_raise_awareness.html http://www.nevadainjuriesblog.com/2010/02/focusdriven_to_raise_awareness.html Automobile Accidents February 2, 2010 11:33 AM Sanchez v. Wal-Mart Stores, 125 Nev. Adv. Op. No. 60 (December 24, 2009), the Nevada Supreme Court examined the scope of a pharmacy's duty of care. In June 2004, Gregory Sanchez, Jr., stopped on the side of the road to fix a flat tire and was assisted by a co-worker, Robert Martinez. The two men were hit by a vehicle driven by Patricia Copening, who was subsequently arrested for driving under the influence of controlled substances. Sanchez was killed and Martinez seriously injured as a result of the collision. One year prior to the collision, in June 2003, the Prescription Controlled Substance Abuse Prevention Task Force ("Task Force") sent a letter to all of the pharmacies and physicians that had dispensed narcotics to Copening or had written prescriptions for Copening. The letter warned that "from May 2002 to May 2003, Copening had obtained approximately 4,500 hydrocodone pills at 13 different pharmacies." The court was faced with two issues: 1) Whether, in Nevada, pharmacies owe a duty of care to unidentified third parties injured by a pharmacy customer or whether public policy creates a duty of care for pharmacies, which when breached, supports a common-law negligence claim. 2) Whether Nevada's pharmacy statutes and regulations create a statutory duty to support a negligence per se claim against the pharmacies. Duty of care under common-law negligence claim The Court held that pharmacies do not have a duty to act to prevent a pharmacy customer from injuring an unidentified third party. The Court rejected the assertion that pharmacies have a special relationship with a third party. The Court noted that the pharmacy has no direct relationship with a third party injured by a pharmacy customer, and third parties such as Martinez and Sanchez are unidentifiable members of the general public. Accordingly, the pharmacies' dispensing of narcotics to Copening did not create a legal duty to Martinez and Sanchez. Negligence Per Se Claim The Court held that NRS 453.1545(1) does not create a duty to third parties upon which a negligence per se claim could be based. NRS 453.1545(1) calls for a program that tracks prescriptions that are filled by pharmacies. Negligence per se claims are based on breaches of statutory duties. Negligence per se arises when an injured party is in the class of persons whom the statute is intended to protect and the injury is of the type against which the statute is intended to protect. Here, the negligence per se claim failed because "the duty owed under these statutes or regulations is to the person for whom the prescription was written, the pharmacy's customer, if anyone, and not for the general public's protection." ]]> http://www.nevadainjuriesblog.com/2010/01/nevada_supreme_court_addresses_2.html http://www.nevadainjuriesblog.com/2010/01/nevada_supreme_court_addresses_2.html Medical Issues January 26, 2010 9:10 AM National Highway Traffic Safety Administration alerted consumers about Toyota and Lexus vehicles experiencing unintended acceleration due to the accelerator becoming stuck. According to the NHTSA press release, floor mats in certain Toyota and Lexus models have caused the accelerator pedal to catch, causing rapid acceleration after releasing the pedal. Toyota began mailing letters to owners of potentially affected vehicles. For the time being, NHTSA and Toyota urge vehicle owners to take out any removable floor mats. The mats should not be replaced with any other mat. Toyota and Lexus vehicles affected by this consumer alert are:

• 2007-2010 Camry
• 2005-2010 Avalon
• 2004-2009 Prius
• 2005-2010 Tacoma
• 2007-2010 Tundra
• 2007-2010 ES 350
• 2006-2010 IS 250 and IS350

Kurt Niland, of Beasley Allen Legal News offers more information on the recall and Toyota's remedial measures: The recall is the largest ever for Toyota and the fifth largest recall of a consumer product in the United States. Toyota formally notified the NHTSA of the recall in a letter on October 5. Owners of the recalled vehicles, which include eight Toyota models manufactured in the last six years, are being notified by first-class mail in a mailing that was sent out on Friday, October 30th. This first mailing will alert owners to the potential dangers posed by the floor mats but will not announce a fix. When Toyota decides on a solution, it will contact owners about the availability of a free remedy in a second mailing. Some early reports indicated that rather than focusing on the floor mats, Toyota was researching on-vehicle countermeasures such as a "smart pedal" that would tell the vehicle to ignore the gas pedal if the brakes were applied simultaneously. Such a measure, which is standard in most German-made vehicles and Chryslers, would enable drivers to regain control of their vehicles easily and instantly despite the cause of unintended acceleration. However, retrofitting 3.8 million vehicles with smart pedal technology would be extremely costly. A modification to the pedal in the affected vehicles would cost as much as $440 million, according to a Tokyo Shimbun report cited by Reuters. A recall involving redesigned floor mats, on the other hand, would cost about $100 million. New reports say that the latest Toyota recall will indeed be a floor mat fix of some kind. Toyota's largest recall comes during its toughest financial time. The company expects to lose $4.7 billion for the year ending March 31 -- its second consecutive annual loss. The economic downturn and a poor exchange rate are obvious culprits, but according to Toyota President Akio Toyoda, the troubles run even deeper. "Toyota has become too big and distant from its customers," President Akio Toyoda, he told journalists in Tokyo last month. "We are grasping for salvation," he added, after apologizing for an accident that occurred in San Diego last August, which investigators say was caused when a floor mat jammed the accelerator pedal in a Lexus ES 350. The horrific accident claimed the lives of a California Highway Patrol officer and three of his family members, finally prompting the massive recall. ]]> http://www.nevadainjuriesblog.com/2009/11/nhtsa_urges_toyota_and_lexus_o.html http://www.nevadainjuriesblog.com/2009/11/nhtsa_urges_toyota_and_lexus_o.html November 24, 2009 10:56 AM Safe Use Initiative," an effort to collaborate with the health care field to reduce the preventable harm resulting from medication use and misuse. The Initiative is in response to the millions of consumers who are harmed each year because of the misuse of medications. The inappropriate use of medications can be a result of several factors, including (1) incomplete access to information, (2) unintentional misuse of medications, medication abuse, and attempts by people to harm themselves with medications, or (3) taking prescription drugs prescribed for other people. Taking prescription drugs prescribed for other people is a serious abuse, as even one single dose of certain medications, such as opioid drugs, can cause severe harm or death to the person not prescribed the medication. Through the Initiative, the FDA will work alongside health care professionals to identify drugs that are linked to preventable harm. The FDA intends to collaborate with health care professionals to (1) evaluate consumer medication information, (2) communicate about the risk of inadvertent overexposure to acetaminophen, (3) apply safeguards against surgery fires caused by alcohol-based surgical preparations, and (4) avoid contamination of multiple-use medication vials. ]]> http://www.nevadainjuriesblog.com/2009/11/fda_announces_safe_use_initiat.html http://www.nevadainjuriesblog.com/2009/11/fda_announces_safe_use_initiat.html Safe Living November 18, 2009 8:00 AM "All the facts and evidence show that tort law changes will do practically nothing to lower costs or cover the uninsured," said AAJ President Anthony Tarricone. "It's no wonder the tort reformers, insurance lobby, and other corporate front groups have to gin up lies and phony stats, since no legitimate data or research supports their claims. Our focus should be on reducing the 98,000 deaths by medical error that occurs every year, not limiting patients' legal rights." The AAJ takes a look at the misconceptions behind the most common positions of health care reform opponents in its Five Myths About Medical Negligence:

• Myth #1: There are too many "frivolous" malpractice lawsuits.

Fact: There's an epidemic of medical negligence, not lawsuits. Only one in eight people injured by medical negligence ever file suit. Civil filings have declined eight percent over the last decade, and are less than one percent of the whole civil docket. A 2006 Harvard study found that 97 percent of claims were meritorious, stating, "portraits of a malpractice system that is stricken with frivolous litigation are overblown."

• Myth #2: Malpractice claims drive up health care costs.

Fact: According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims of medical negligence was just 0.3% of health care costs, and the Congressional Budget Office and Government Accountability Office have made similar findings.

• Myth #3: Doctors are fleeing.

Fact: Then where are they going? According to the American Medical Association's own data, the number of practicing physicians in the United States has been growing steadily for decades. Not only are there more doctors, but the number of doctors is increasing faster than population growth. Despite the cries of physicians fleeing multiple states, the number of physicians increased in every state, and only four states saw growth slower than population growth; these four states all have medical malpractice caps.

• Myth #4: Malpractice claims drive up doctors' premiums

. Fact: Empirical research has found that there is little correlation between malpractice payouts and malpractice premiums paid by doctors. A study of the leading medical malpractice insurance companies' financial statements by former Missouri Insurance Commissioner Jay Angoff found that these insurers artificially raised doctors' premiums and misled the public about the nature of medical negligence claims. A previous AAJ report on malpractice insurers found they had earnings higher than 99% of Fortune 500 companies.

• Myth #5: Tort reform will lower insurance rates.

Fact: Tort reforms are passed under the guise that they will lower physicians' liability premiums. This does not happen. While insurers do pay out less money when damages awards are capped, they do not pass the savings along to doctors by lowering premiums. Even the most ardent tort reformers have been caught stating that tort reform will have no effect on insurance rates. For Five Myths About Medical Negligence in its entirety, click here ]]> http://www.nevadainjuriesblog.com/2009/11/exposing_myths_about_medical_m.html http://www.nevadainjuriesblog.com/2009/11/exposing_myths_about_medical_m.html Medical Issues November 17, 2009 8:35 AM