Reno Personal Injury Lawyer - Wrongful Death - Most Popular

Dissecting the History of the Statute of Limitations in Personal Injury Cases in Nevada

Steve Klearman — Tue, 21 Apr 2009 13:47:03 GMT

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**

Originally posted at InjuryBoard by Steve Klearman

Patient-Doctor Privilege Doesn't Cover Doctor's Testimony, Says Judge.

Steve Klearman — Wed, 18 Feb 2009 12:28:31 GMT

The Reno Gazette Journal reported on a controversial ruling in federal court regarding patient privacy under federal and Nevada law.

The issue arose in a wrongful death case. The plaintiff brought suit against the pharmaceutical company manufacturing the drug taken by her husband to treat his heart condition.

The pharmaceutical company's attorneys requested to interview the decedent's doctor, over the plaintiff's objection.

According to the article, the plaintiff's attorney contended that "only written hospital or medical records should be made available once a lawsuit is filed, not personal communication with a doctor."

However, the judge ruled that Nevada law and HIPAA do not prohibit the defendant's lawyers from doing so. The reasoning? The judge said that filing a lawsuit puts the person's condition at issue, providing an exception to the privilege.

What do the statutes say?

Nevada law generally provides for a doctor-patient privilege: "A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications among himself, his doctor or persons who are participating in the diagnosis or treatment under the direction of the doctor, including members of the patient's family." NRS 49.225

The exception leading to this controversy comes from NRS 49.245(3), which says that no privilege applies "to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense."

The statute expressly provides an exception for written records, leaving the testimony of the physician arguably subject to privilege. The judge's ruling in this case opens up a defense attorney's ability to speak directly with a plaintiff or decedent's physician, despite explicit reference in the statute for such an interview.

Originally posted at InjuryBoard by Steve Klearman

Fallon Nevada's Arsenic Problem

Steve Klearman — Mon, 26 Nov 2007 06:44:18 GMT

In Fallon, Nevada (about an hour and a half away from Reno) residents have been experiencing high numbers of cancer diagnoses. Although the town has a population of roughly 8,500 people, 12 children were diagnosed with leukemia over a course of approximately three years. According to the American Cancer Society approximately 1.27 percent of the population (1 in 79) will come down with the disease sometime in their lifetimes, but the median (average) age for which it is diagnosed in humans is 67. The ACS also states that in the year 2007 roughly 3,800 children will develop leukemia. Considering the number of these cases occurring in Fallon alone puts it at a small percentage of the total US population, this news is alarming local residents.

Theories abound as to the causes of the leukemia, but the most prevalent is one that states that because the Air Force base is in close proximity to the town, jet fuel and exhaust fumes are causing the leukemia. Benzene has been shown to be a major cause of leukemia and it is commonly found in the fuels that jets use to fly.

Another theory is based upon the city's arsenic tainted water supply. Fallon's water supply exceeded 90 parts per billion of arsenic, while exceeding a mere 50 ppb (parts per billion) has been quoted by the EPA as being dangerous. In fact, some experts believe that any level exceeding 10 ppb is dangerous. Thirty four percent of the residents of Clark County were tested with over 50 ppb of arsenic in their urine in 2003 and although both the Air Force base and the city of Fallon have taken steps to reduce the amount of arsenic in the water supply, the damage from the high levels (100+ ppb) that were previously recorded still remains.

According to the EPA, "On November 23, 1999, EPA Region 9 issued a Findings and Notice of Violation stating that the City of Fallon was in violation of the Safe Drinking Water Act for exceeding the arsenic maximum contaminant level (MCL) of 50 ppb from 1977 to present. On August 30, 2000, Fallon received an Administrative Order requiring compliance with the arsenic MCL by September 15, 2003. This Administrative Order was replaced by a subsequent Administrative Order on August 28, 2002 that extended the deadline to April 15, 2004."

The Centers for Disease Control and Prevention state that arsenic exposure has not been linked to leukemia in adults or children. However, the Centers state that arsenic poisoning is still capable of causing cancer, even if inhaled.

Even though cancer is possible and in fact highly probable considering the possibility of exposure to arsenic, benzene or even tungsten that is occurring in Fallon, leukemia is harder to track. Part of the difficulty in tracing down a specific cause of leukemia lays in tracing down the causative agent. But Fallon itself presents something of a mystery because military families are exposed to the same substances that civilians are exposed to. Being more mobile makes the source of military families' exposure more difficult to trace because they could have been exposed prior to their entry to Fallon. In addition, the symptoms of leukemia may not become immediately apparent because they may take months or even years to present themselves.

In addition, tracing the source of exposure for military families is more difficult for a second reason: their symptoms may not start until after they've relocated to a completely new area. Any doctor that a military family approaches would have to take a systematic approach to every place that the family has been and find a commonality with other leukemia patients in terms of the area of exposure to determine definitively that being in Fallon was the "smoking gun" that caused the leukemia. It is entirely possible that a child of a military family has developed leukemia and that the family won't be aware of it for another few years. It is also possible that the same child already has leukemia and that the current doctor is looking for the causes solely in his current jurisdiction, even though the exposure actually occurred far from his office and even the town where he is practicing.

In any case, the best approach to staying healthy if you have been in Fallon for a prolonged period of time is to consult a doctor and have regular checkups. Also, if you leave Fallon it would be best if you told your current doctor that you were in Fallon. You can provide him with a copy of this blog.

Originally posted at InjuryBoard by Steve Klearman

Hepatitis Victims May Be Duped By Med Mal Insurance Industry

Steve Klearman — Fri, 29 Feb 2008 10:47:48 GMT

Nevadans, you were duped by the medical malpractice insurance industry when you voted for the KODIN Ballot Initiative a few years back.

Now those injured through the sheer negligence and stupidity of a group of Nevada doctors may find that they've limited their ability to collect compensation.

Consider, for instance, that damages for pain and suffering are now capped in Nevada at $350,000.00. Evidence of insurance payments can come into evidence. The statute of limitations is now reduced to a year in many situations. The list of penalties for victims goes on and on.

If you got Hepatitis or HIV as the result of medical negligence do you think that $350,000 (before attorneys fees and costs) was enough to compensate you?

Call your state representatives and let them know that KODIN is a mistake.

Originally posted at InjuryBoard by Steve Klearman

HIV on the Rise in America

Steve Klearman — Fri, 30 Nov 2007 07:55:16 GMT

According to data from the U.S. Centers for Disease Control and Prevention for 2001 to 2005 (the latest years available), the number of new cases of HIV infection diagnosed among 15-to-19-year-olds in the United States rose from 1,010 in 2001, held steady for the next three years, then jumped 20 percent in 2005, to 1,213 cases.

For young people aged 20 to 24, cases of new infection have climbed steadily, from 3,184 in 2001 to 3,876 in 2005.

According to E.J. Mundell at HealthDay News, experts say a number of factors may be at play, including the fact that many HIV-infected patients are now being kept healthy with powerful drugs -- making AIDS seem like less of a threat to young people than it did in the past.

Hopefully, complacency about this serious threat will not continue.

Originally posted at InjuryBoard by Steve Klearman

Reno Wrongful Death Lawsuit Settled

Staff Writer — Fri, 28 Oct 2005 06:28:57 GMT

A murdered police officer's family settled a lawsuit filed against his killer, the killer's ex-wife and the ex-wife's mother. Reno officer John Bohach was killed in the line of duty during a standoff in which Larry Peck barricaded himself inside a house after fleeing the scene of a routine traffic stop.

Peck was convicted of first-degree murder and sentenced in April 2003 to two life prison terms without the possibility of parole for shooting Bohach once in the chest with an armor-piercing bullet...Bohach was 35. The 14-year veteran officer died within minutes.

The wrongful death suit was filed by Bohach's children, widow, mother and brother. The Reno Gazette-Journal has more, including comments from the family's wrongful death lawyer.

Originally posted at InjuryBoard by Staff Writer

More Fun with Allstate

Steve Klearman — Thu, 16 Aug 2007 08:49:01 GMT

As you may have seen in earlier blogs, Allstate's Nevada Counsel has got himself into a lot of trouble with the Nevada Supreme Court and a number of District Courts and has incurred high sanctions.

I received this email update from Peter Chase Neumann, one of the attorneys keeping the heat on Allstate:

In the wrongful death case of Duncan Estate vs. Peri and Stratton, the Trial Court, Dept 4, granted plaintiff's motion for new trial on 2-13-06. Order was based, inter alia, on misconduct of Emerson.

Emerson and the counsel for the co-defendant, Mr. Kolvet, appealed.

On April 4, 2007 the Supreme Court dismissed their appeal, for their failure to obtain a judgment on the defense verdict, prior to appealing. (Court had no jurisdiction to entertain appeal).

Emerson's pet. for rehearing denied by supreme court May 18, 2007.

The case now set for re-trial 12 months hence, Sept. 15, 2008.

On July 24, 2007 plaintiffs filed a Motion to Impose Sanctions on Emerson and his client, Stratton.

On Aug 7, 2007, Emerson filed Opposition thereto.

Today, Aug 15, 2007, plaintiffs filed their REPLY thereto.

(If anyone wants a copy of the Reply email me or comment via this blog and I'll get it to you. -Steve)

For more information on this subject matter, please review our section on Wrongful Death.

Originally posted at InjuryBoard by Steve Klearman

Ricin Found - Disease and Poison in Las Vegas(2)

Steve Klearman — Fri, 29 Feb 2008 07:10:07 GMT

First news of 40,000 exposed to Hepatitis in Vegas and now authorities are reporting discovering what appears to be Ricin in a hotel. What's up in Vegas? Reminds me of an art exhibit I recently saw (still on display at the Barrick Museum there) that depicts scenes of apocalypse and absurdity with Vegas as the backdrop.

Barrick Museum Exhibit

According to Yahoo News, Ricin is made from the waste left over from processing castor beans, and can be extremely lethal. As little as 500 micrograms, or about the size of the head of a pin, can kill a human, according to the CDC.

Yahoo Story on Ricin

I'll be back within a few hours with my update on the Hepatitis case and back later today with my blog about why that case illustrates what an unmitigated disaster tort reform's been for the citizens of Nevada.

Originally posted at InjuryBoard by Steve Klearman