Tag: NRS 41A.035

Nevada Appellate Courts Advance Opinions for December 27, 2018

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 27, 2018

GONOR VS. DALE

  • Does a deceased party’s actual date of death, or the suggestion of death filed on the record, trigger the 90-day time limitation prescribed in NRCP 25(a)(1) under which a motion to substitute the proper party in place of the deceased party must be filed in order to preclude dismissal.

CAPANNA, M.D. VS. ORTH C/W 70227

  • What constitutes improper jury nullification and golden rule arguments during closing argument.

HARRIS (AMMAR) VS. STATE (DEATH PENALTY-DIRECT)

  • When can gruesome photographs of a victim’s injuries be properly admitted in a criminal case.

BRANCH BANKING & TR. CO. VS. GERRARD, ESQ.

  • When does a litigation malpractice claim accrue.

IN RE: ESTATE OF SARGE

  • Is an order finally resolving a constituent consolidated case immediately appealable as a final judgment even where the other constituent case or cases remain pending.

COOPER (JAMES) VS. STATE

  • What evidence satisfies the prima facie showing of race-based discrimination to determine whether a peremptory challenge is improperly based on race.

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Nevada Appellate Courts Advance Opinions for December 28, 2017

Posted on by Jeff Jaeger

Nevada Appellate Courts Advance Opinions for December 28, 2017

MCCROSKY VS. CARSON TAHOE REG’L MED. CTR.

  • Under what circumstances can a hospital be vicariously liable for the alleged negligence of a doctor who works at the hospital as an independent contractor.
  • Can evidence of Medicaid payments made on behalf of a plaintiff be introduced in a medical malpractice action.

BOCA PARK MARKETPLACE SYNDICATIONS GRP., LLC VS. HIGCO, INC.

  • Does the doctrine of claim preclusion prevent a tenant from suing its landlord for contract damages after having won an earlier suit against the landlord for declaratory judgment, where both suits concern the same underlying facts.

BROWN (WILLIS) VS. DIST. CT. (STATE)

  • What is the standard for determining indigency for the appointment of counsel for purposes of Widdis.
  • Must an indigent defendant request a sum certain before a motion for defense services at public expense can be considered or granted

SEGOVIA, PA-C VS. DIST. CT. (DUDA)

  • Do the 2015 Legislature amendments, adding physician assistants to NRS 41A.017, apply retroactively so as to cap their damages in medical malpractice actions.

EUREKA CTY. VS. DIST. CT. (SADLER RANCH, LLC)

  • Are junior water rights holders entitled to notice of and an opportunity to participate in a district court’s consideration of a curtailment request.

RODRIGUEZ (DANIEL) VS. STATE

  • What is the definition of “deadly weapon” within the context of battery.

HAWKINS VS. DIST. CT. (GGP MEADOWS MALL)

  • What should a district court  consider when awarding attorney fees sought for work done by a disqualified firm.

PECK VS. VALLEY HOSP. MED. CTR.

  • Does either statutory res ipsa loquitur or the common knowledge res ipsa loquitur doctrine provide an exception to the expert affidavit requirement for a medical malpractice complaint.
  • Is NRS 41A.071 unconstitutional under the Equal Protection Clause or Due Process Clause, facially, or as applied to inmates or indigent persons.

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Are limits on medical malpractice awards unconstitutional?

Posted on by Jeff Jaeger

Tam v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Oct. 1, 2015)

NRS 41A.035 (2004) limits the recovery of a plaintiff’s noneconomic damages in a health-care provider’s professional negligence action to $350,000. The issues are whether the statute violates a plaintiff’s right to trial by jury, whether the cap applies separately to each cause of action, and whether the statute applies to medical malpractice actions.

After the death of Charles Thomas Cornell, Jr, Sherry Cornell, individually and as administrator of Charles’s estate, filed a complaint alleging, among other causes of actions, professional negligence and medical malpractice. The complaint named numerous defendants, including Stephen Tam, M.D.

Charles had several chronic medical conditions. However, Cornell alleged that Charles died after receiving care from the defendants, who discharged him without medications or prescriptions for essential medications, including insulin, to treat his diabetes. Consequently, the complaint alleged that Charles died because he did not have access to insulin.

The district court dismissed several of the defendants and numerous claims from the action, and the remaining claims for trial fell within the definition of medical malpractice as set forth in NRS 41A.009. Relevant to this matter is that Dr Tam filed an omnibus motion in limine requesting in part that the plaintiffs’ noneconomic damages be limited to $350,000 as a whole pursuant to NRS 41A.035 (2004).

The district court denied this motion finding that NRS 41A.035 was unconstitutional, as it violated a plaintiff’s constitutional right to trial by jury. The district court also found that the cap in NRS 41A.035 did not apply to the case as a whole but that a separate cap applied to each plaintiff for each of the defendants. In addition, the district court found that the cap in NRS 41A.035 did not apply to medical malpractice claims. Dr. Tam petitioned the Supreme Court of Nevada for a writ of mandamus compelling the district court to vacate its order denying his motion in limine.

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