Reno Personal Injury Lawyer

Nevada Supreme Court Rejects Application of Anti-Stacking Rules for Concurrent Negligence

Steve Klearman — Thu, 05 Nov 2009 15:16:39 GMT

In Delgado v. American Family Ins. Group, 125 Nev. Adv. Op. No. 44 (October 1, 2009), the Nevada Supreme Court was faced with the question of whether the passenger in an automobile who is injured by the concurrent negligence of the drivers in a two-car accident "may recover under the permissive driver's insurance policy both liability benefits based on the policyholder's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The plaintiff passenger had made a claim against both at-fault drivers' insurance policies and recovered the liability limits under those policies. She then made a claim against the permissive driver's underinsured motorist policy, alleging that the at-fault policies did not cover the extent of her damages.

The Court rejected the application of the anti-stacking rules under the Nevada case law. In Nevada, once a passenger has recovered under the vehicle owner's liability policy--whether that policy is the permissive driver's policy or the passenger's own policy--the passenger may not also recover under the owner's uninsured/underinsured motorist policy, although the guest passenger may stack their own UM/UIM coverage with the benefits they receive from the owner's policy. Baker v. Criterion Insurance, 107 Nev. 25, 805 P.2d 599 (1991).

Distinguishing the anti-stacking situation, the Court concluded that "a passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and underinsured motorist benefits based on the other driver's underinsured status."

The Court clarified that the antistacking rule under Nevada law was not implicated by this case. Thus, a passenger whose injuries are attributable to two jointly negligent drivers and who exhausts the liability limits of the permissive driver's policy without satisfying his damages may seek recovery under the permissive driver's underinsured motorist policy based on the other driver's underinsured status.

Originally posted at InjuryBoard by Steve Klearman

H1N1 Preventative Measures

Steve Klearman — Thu, 05 Nov 2009 14:01:45 GMT

With the death toll from H1N1 rising in Nevada, we should all be taking everyday precautions to stay healthy.

The Center for Disease Control and Prevention suggests everyday steps to protect your health:

Cover your nose and mouth with a tissue when you cough or sneeze. Throw the tissue in the trash after you use it.
Wash your hands often with soap and water. If soap and water are not available, use an alcohol-based hand rub.
Avoid touching your eyes, nose or mouth. Germs spread this way.
Try to avoid close contact with sick people. If you are sick with flu-like illness, CDC recommends that you stay home for at least 24 hours after your fever is gone except to get medical care or for other necessities. (Your fever should be gone without the use of a fever-reducing medicine.) Keep away from others as much as possible to keep from making others sick.

Other important actions that you can take are:

Follow public health advice regarding school closures, avoiding crowds and other social distancing measures.
Be prepared in case you get sick and need to stay home for a week or so; a supply of over-the-counter medicines, alcohol-based hand rubs * (for when soap and water are not available), tissues and other related items could help you to avoid the need to make trips out in public while you are sick and contagious.

More on Handwashing from CDC: Washing your hands often will help protect you from germs. CDC recommends that when you wash your hands -- with soap and warm water -- that you wash for 15 to 20 seconds. When soap and water are not available, alcohol-based disposable hand wipes or gel sanitizers may be used.* You can find them in most supermarkets and drugstores. If using gel, rub your hands until the gel is dry. The gel doesn't need water to work; the alcohol in it kills the germs on your hands.

Originally posted at InjuryBoard by Steve Klearman

District Judge Bars Injection Regulations

Steve Klearman — Thu, 01 Oct 2009 11:55:16 GMT

Two weeks ago, the Nevada Board of Medical Examiners issued an emergency regulation to restrict the ability of medical assistants to perform certain injections, such as Botox.

As reported by the Las Vegas Sun, the regulations prohibited doctors from allowing medical assistants to inject "cosmetic fillers, chemotherapy, anesthetics or inflammatory drugs," stemming from "a controversy in Las Vegas about unlicensed medical assistants performing certain procedures that some argued should be left to a doctor."

However, on Tuesday, District Judge Kathleen Delaney issued an injunction to prevent the regulation from going into effect, based on the Nevada Board of Medical Examiners' procedures used to adopt the regulations. The Board violated Nevada's open meeting laws by not hearing all public comments before voting on the regulation.

The regulation was not to affect the administration of flu shots.

Originally posted at InjuryBoard by Steve Klearman

Nevada Supreme Court addresses business defamation actions

Steve Klearman — Fri, 25 Sep 2009 18:32:55 GMT

The Nevada Supreme Court clarified business defamation in Clark County Sch. Dist. v. Virtual Educ., 125 Nev. Adv. Op. No. 31 (August 6, 2009).

The case presented the issues to the Court of whether "the absolute privilege applies to defamatory communications made by a nonlawyer in anticipation of a judicial proceeding," and "whether allegedly defamatory statements made about a business's product provide a basis for defamation per se or for business disparagement."

The Court concluded that in a business defamation action under Nevada law, "the absolute privilege affords parties to litigation the same protection from liability that exists for an attorney for defamatory statements made during, or in anticipation of, judicial proceedings."

Furthermore, "when allegedly defamatory statements concern a business's product and the plaintiff seeks to redress injury to economic interest, the claim is one for business disparagement, not defamation per se."

See the Court's opinion here.

Originally posted at InjuryBoard by Steve Klearman

Nevada Supreme Court Says Smoking Ban Constitutional

Steve Klearman — Fri, 25 Sep 2009 18:27:11 GMT

The Las Vegas Sun reported that the Nevada Supreme Court denied a challenge to the civil enforcement of Nevada's indoor smoking ban.

The criminal enforcement of the smoking ban had already been held unconstitutional, and the statutory basis for criminal enforcement has been removed from the statute.

However, civil enforcement of the smoking ban is constitutional, despite the challenge from Las Vegas businesses. The businesses challenged the provisions under the equal protection clause, as the statute exempts gambling areas in large casinos, certain taverns, and certain strip clubs.

In rejecting the challenge, the Supreme Court reasoned that the exemptions did not violate equal protection because they are justified by the fact that "minors are prohibited from gambling areas in casinos, unlike in smaller bars and restaurants where slot machines are "incidental" to their overall business."

Originally posted at InjuryBoard by Steve Klearman

Insurer's Have Duty to Inform Insured's About Settlement Offers

Steve Klearman — Fri, 25 Sep 2009 18:08:46 GMT

The Nevada Supreme Court addressed the scope of an insurer's duty to defend under the implied covenant of good faith and fair dealing in Allstate Insurance Co. v. Miller, 125 Nev. Adv. Op. No. 28 (July 30, 2009).

The opinion considered when an insurer has a duty to inform its insured about settlement opportunities.

The Court held that an insurer's duty to defend includes a duty to "adequately inform the insured of settlement offers," including reasonable offers that exceed policy limits. An insured's failure to so inform its insured can be used as a factor in bad faith claims. The failure to inform can also serve as a proximate cause of damages to the insured.

See the entire opinion here.

Originally posted at InjuryBoard by Steve Klearman

AAJ Clarifies: MMSEA's Section 111 Does Not Require Set-Asides in Liability Cases

Steve Klearman — Thu, 13 Aug 2009 16:43:53 GMT

The Medicare, Medicaid and SCHIP Extension Act of 2007, or MMSEA, affects judgments and settlements involving Medicare liens. Plaintiffs and Defendant attorneys should be aware of the changes. The AAJ released a clarification about the MMSEA:

In cases involving Medicare beneficiaries, attorneys for both the plaintiff and defendant are required to report certain information to the Centers for Medicare and Medicaid Services (CMS). In addition, any case settlement or judgment must reimburse Medicare where the Trust Fund has made conditional payments for medical costs. Under the Medicare Secondary Payer Act, attorneys have been settling cases involving liability claims without completing a Medicare Set Aside (MSAs) to account for future medical costs. However, attorneys representing claimants in workers' compensation cases have been preparing MSAs on a case-by-case basis.

It has come to our attention that some defense firms and insurance providers are now claiming that CMS requires MSAs in liability cases pursuant to Section 111 reporting requirements included in the Medicare, Medicaid & SCHIP Act of 2007 (MMSEA), Public Law No. 110-173. This is false.

Section 111 contains reporting requirements for responsible reporting entities (RREs) only. Section 111 does not impact or change the requirements for plaintiffs' attorneys.

Moreover, statements from CMS, and other federal entities, make clear that the agency does not require set-asides for liability claims. Since the MMSEA's passage, CMS has held several Town Hall teleconferences to discuss the Section 111 requirements. During the March 24, 2009 call, Barbara Wright, CMS' Acting Director of the Division of Medicare Debt Management, made several statements reiterating that Section 111 has no impact on liability MSAs. For example:
- In response to a question as to whether liability set-asides will be required under Section 111, she said "the point is the set-aside process is totally separate from the Section 111 reporting process. As we've said in more than one call we don't anticipate changing our routine recovery process." (Transcript, pg. 24)
- When explaining that worker's compensation agreements use a formal review process which makes set-asides recommended, she said that was in contrast to liability agreements. Liability "does not have the same formal review process although our regional offices will consider review of proposed liability set-aside amounts depending on their particular work load and whether or not they believe significant dollars are at issue." (Transcript, pg. 24).

In addition, CMS also has released several Alerts explaining Section 111, which do not indicate any intent to require MSAs for liability claims. For example:
- "Unless you are a business entity which qualifies as [a required reporting entity (RRE) for purposes of Section 111, you do not need to initiate any specific actions in connection with Section 111." (CMS Alert, 2/23/09).
- "The new Section 111 requirements do not change or eliminate any existing obligations under the MSP statutory provisions or regulations." (CMS Alert, 2/23/09).

Moreover, the Congressional Research Service (CRS) provided Congress with an "objective and non-partisan analysis" analysis of the MMSEA. As there was no legislative history regarding the bill, the CRS research report is the most reliable analysis of the MMSEA, including the Section 111 reporting requirements.

CRS' analysis of the Section 111 reiterates that it is a reporting requirement, and makes no mention of the need for set-asides in liability cases. The Section 111 analysis states, in part: This provision requires an insurer or third-party administrator for a group health plan (and in the case of a group health plan that is self-insured and self-administered, a plan administrator or fiduciary) to (1) secure from the plan sponsor and participants information required by the Secretary for the purpose of identifying situations where the group health plan is or has been a primary plan to Medicare, and (2) submit information specified by the Secretary. If an insurer or third-party administrator for a group health plan fails to comply, then a $1,000 per day civil monetary penalty will be imposed for each individual for which information should have been submitted.

If CRS believed that the legislative language implies any Congressional endorsement of liability setasides, it would have been included in this analysis.

More information on the MMSEA can be found at the Centers for Medicaid and Medicare website

Originally posted at InjuryBoard by Steve Klearman

More on the Medical Device Safety Act from the AAJ

Steve Klearman — Mon, 10 Aug 2009 16:28:59 GMT

The American Association for Justice reports about the hearing on the Medical Device Safety Act held last week:

Two years ago, Michael Mulvihill of Bettendorf, Iowa, was driving with his wife across the Midwest to visit his son, daughter-in-law, and grandchildren when he saw a blue light flash before his eyes. He felt his body shaking and thought it was from hitting road debris. He soon realized his heart defibrillator was malfunctioning and sending electrical shocks throughout his body while he was driving on the interstate.

His nightmare continues because he cannot hold the manufacturer of his faulty medical device accountable for their faulty product because of a U.S. Supreme Court decision last year that gave the manufacturer complete immunity. Today, Mulvihill will testify before the U.S. Senate Health, Education, Labor, and Pensions Committee, asking for Congress to pass the Medical Device Safety Act (MDSA), legislation that would restore the right of patients to hold manufacturers of medical devices accountable in court when their devices have malfunctioned.

Mulvihill had an irregular heartbeat, and was implanted with a defibrillator in 2006 to control his heart rhythm and pulse. The device intended to save his life nearly killed him and his wife when it malfunctioned while he was driving. The anxiety from the episode led Mulvihill into taking early retirement because his job required so much interstate travel.

A representative from Medtronic confirmed the device had shocked Mulvihill 22 times in 53 minutes. The wire that connects the defibrillator to the heart was recalled four months later after over a hundred reports of the lead malfunctioning had been reported to the Food and Drug Administration (FDA). However, because of a U.S. Supreme Court ruling last year, Mulvihill does not have any recourse to hold the manufacturer accountable.

In February 2008, the U.S. Supreme Court ruled in Riegel v. Medtronic that because the Food and Drug Administration (FDA) had approved a medical device through the pre-market approval process, patients injured by medical devices do not have any recourse to hold the manufacturers accountable. The Supreme Court ruled earlier this year in Wyeth v. Levine that patients harmed by prescription drugs can hold manufacturers accountable in state courts, creating a double standard between prescription drugs and medical devices.

"I relied on this medical device to save my life. Instead, the trauma I experienced because the device was not safe cost me my career and crippled my lifestyle," said Mulvihill. "Medical device companies should be held accountable for the safety of the products they produce and profit from. I am asking Congress to restore my right to seek justice for myself and medical device patients everywhere."

"Medtronic put profits ahead of patient safety. They were aware the device was failing at abnormally high rates but continued to market it, as alleged in lawsuits filed against the company," according to Wendy Fleishman, Mulvihill's attorney with Lieff Cabraser Heimann & Bernstein, LLP. "Medtronic should not receive the benefit of a judicial doctrine granting the company immunity."

Medtronic's Sprint Fidelis' lead, like Mulvihill's, is the subject of multidistrict litigation in U.S. District Court in Minnesota. In January, U.S. District Court Judge Richard Kyle dismissed over 1,400 patients' cases, citing the Supreme Court decision in Riegel v. Medtronic. The ruling stated, "The Court recognizes that at least some Plaintiffs have suffered injuries from using Sprint Fidelis leads, and the Court is not unsympathetic to their plight. ... Plaintiffs' remedy, therefore, lies with Congress, and not with this Court."

MDSA, sponsored by Sen. Edward Kennedy (D-MA), Rep. Frank Pallone (D-NJ) and House Energy and Commerce Committee Chairman Henry Waxman (D-CA), would restore the right to seek justice in state courts for victims of faulty medical devices like heart defibrillators, prosthetic knees, and hips.

"The Medical Device Safety Act is necessary to protect patients from defective devices and make sure manufacturers are held accountable," said Linda Lipsen, Senior Vice President of Public Affairs at the American Association for Justice. "The Supreme Court has affirmed that state law offers an important layer of consumer protection, and Congress should make clear that this applies not just in cases of pharmaceutical drugs, but also medical devices approved by the FDA that are later faulty or malfunction."

Originally posted at InjuryBoard by Steve Klearman

Senate Holds Hearing on Medical Device Safety Act

Steve Klearman — Wed, 05 Aug 2009 14:56:54 GMT

The U.S. Senate held a hearing yesterday regarding the Medical Device Safety Act, introduced in March of 2008 and aimed at clarifying that FDA approval doesn't preempt lawsuits against medical device manufacturers.

MedPage Today summarizes the bill and the reasoning behind it:

Under U.S. law, device companies are not liable for damages if their products cause harm as long as the device received premarket approval from the FDA.

But "FDA marketing clearance or approval of a medical device does not guarantee its safety," said William Maisel, MD, director of the Medical Device Safety Institute and a cardiologist at Beth Israel Deaconess Medical Center in Boston.

Dr. Maisel -- who chairs the FDA's Circulatory Advisory Committee -- said the FDA does an "exceptional job" of monitoring the safety of medical devices. However, the post-marketing data is an issue. He said it is "simply impossible" for the FDA to continue to monitor the safety of every medical device it has approved.

Sen. Tom Harkin (D-Iowa), who chaired Tuesday's hearing, agreed.

"No matter how diligently and effectively the FDA does its job, it simply cannot guarantee that no defective, dangerous and deadly medical device will reach consumers," Harkin said.

The device company immunity stems from a 2008 Supreme Court interpretation of a 30-year-old law making the FDA the final arbiter of device safety.

In that 8-1 decision (Reigel v. Medtronic), the Supreme Court ruled that if a device received premarket approval from the FDA, individuals injured by the device may not sue the manufacturer for damages.

Drug companies do not enjoy the same protection. In March, the Supreme Court ruled 6-3 in Wyeth v. Levine that FDA approval of a drug does not shield its maker from lawsuits brought by patients injured by use of the drug.

So patients who are injured by a faulty medical device often have to cover the costs of their resulting medical treatment. The federal government would foot the bill if patient was covered by Medicare or Medicaid, Maisel said.

"Some might argue that we have two cash for clunkers program and this is one of them where the government is paying for defective devices," he said.

But Peter Barton Hutt, a food and drug attorney in Washington, disagreed with Maisel's view and said the FDA is in a better position to decide the safety and efficacy of a device than a jury.

"FDA is not perfect, but certainly a jury is going to be less perfect," he said.

Besides, he said, risk is inherent in all medical devices, and small numbers of patient injuries do not mean a device is defective.

"The fact that it hurts someone doesn't mean there's a defect. It may save 999 lives, but hurt the thousandth life. That doesn't mean it's defective," said Hutt, who served as chief counsel for the FDA from 1971 to 1975.

Allowing individuals to sue device companies at the state level -- which is what identical bills in the House and Senate would do -- would not improve device safety, Hutt said.

But giving injured patients the ability to sue provides a "powerful incentive to manufacturers to use the utmost care," Harkin countered.

Sen. Orrin Hatch (R-Utah) argued that exposing device makers to litigation would make the companies, particularly the small companies, afraid to produce new, innovative products.

The witness panel was lacking a representative from the device industry. However, a race car driver from Missouri told the committee how a spinal implant gave him a new lease on life, and urged the committee not to do anything that would stifle such innovation.

In a release, a spokesperson for Advanced Medical Technology Association (AdvaMed) said the bill would not improve patient safety.

"It will create more frivolous lawsuits and increase healthcare costs, and it will make it harder for small medical device manufacturers to invest in promising new technologies," said Stephen Ubl, president and CEO of AdvaMed.

Originally posted at InjuryBoard by Steve Klearman

Doctors' Confusion over HIPAA

Steve Klearman — Thu, 30 Jul 2009 11:38:09 GMT

A Los Angeles Times article by Lisa Zamosky comments on the confusion in doctors' offices regarding Health Insurance Portability and Accountability Act (HIPAA). The article points out that obtaining medical records is often harder for patients than the law allows:

Under HIPAA, consumers have the right to access records documenting their health conditions, diagnoses and treatments.

HIPAA also explains when healthcare providers can share protected health information with other people.

... [U]nder HIPAA, sending health information by fax is not prohibited. In addition, the law states that the provider must give patients the information they ask for in the format they request.

Trouble accessing medical records from doctors is a common complaint received by the Medical Board of California, which licenses and disciplines medical doctors.

Candis Cohen, a spokeswoman for the board, says physicians and their office staffs frequently confuse details of the HIPAA privacy law and, even with the best intentions of protecting patients' privacy rights and complying with the law, deny consumers access to their medical records.

The traditional medical culture doesn't help, policy and healthcare experts say, pointing out that, historically, doctors haven't valued patients' access to their own records.

"Some providers still have this paternalistic attitude that patients don't have the right to their own health information," says Joy Pritts, associate professor and director of the Center on Medical Records Rights and Privacy at Georgetown University.

A full listing of HIPAA regulations and consumers' rights under the law can be found on the Health and Human Services website, www.hhs.gov/ocr.

Originally posted at InjuryBoard by Steve Klearman