Health Care Quarterly:

Suing a doctor for malpractice isn’t the get-rich plan TV shows make it out to be

As a health care attorney, I represent practitioners primarily, serving their compliance and corporate law needs. However, I consistently get inquiries on medical malpractice. The stories I hear are heartbreaking. And because the fictional attorneys on TV are often seen embroiled in multimillion-dollar lawsuits, expectations may be high.

That’s not the way it really works. When it comes to a lawsuit for medical malpractice, there are limits to what can be awarded and elements that must be in place for legal action to proceed.

At the heart of the matter? Nevada has a $350,000 cap on damages for pain and suffering in all medical malpractice cases. Also, Nevada law limits punitive damages (damages for the sake of example and a way of punishing the defendant) to $300,000 if the compensatory damages total less than $100,000, or three times the amount of compensatory damages if these damages total $100,000 or more.

In 2004, Nevadans overwhelmingly voted to approve the medical malpractice damages cap. In Tam v. 8th Judicial District Court of Nevada, et al. (2015), the Nevada Supreme Court upheld this cap as constitutional.

Nevada’s statutes have imperative elements that a plaintiff must meet before a case can proceed. These elements include an assertion of negligence; a sworn affidavit from a qualified expert medical witness; a mandatory settlement conference; evidence of causation; the statute of limitations; and then, of course, the damages limitation.

If you do not meet these elements, you cannot even begin filing a claim. One point of note is that a sworn affidavit from a qualified expert medical witness who states that the case has merit is a very expensive endeavor, sometimes costing thousands of dollars.

Also, Nevada has a strict statute of limitations on the time you have to pursue your lawsuit. An action for injury or death against a practitioner may not start more than three years after the date of injury or one year after the plaintiff discovers — or, through the use of reasonable diligence, should have discovered — the injury, whichever occurs first.

This has one exception: when the practitioner has concealed any act, error or omission. But, if you sue after the statute of limitations has passed, your case likely will be dismissed.

The theory behind these stipulations is that capping medical malpractice damages improves health care by shielding doctors and lowering costs associated with “defensive” treatment. However, it also means that anyone who can work despite injury is out of luck, because there would be no loss of future earnings.

In Nevada, we have attracted physicians because of our tort reform. Limiting exposure to malpractice damages improves access to health care by encouraging doctors to stay in the state. Caps also provide predictability, reduce insurance risk and allow insurers to charge lower malpractice premiums.

Patients benefit because doctors are not alarmed into ordering unnecessary tests and procedures merely to protect themselves. But those same limits may keep patients from properly pursuing deserved justice.

Ayesha Mehdi is principal attorney at Frontier Health Law.

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