So if a patient does not become aware of the injury until after three years have passed, then it is too late to file suit. 1
Can the statute of limitations ever be tolled?
Yes, the three-year SOL pauses for as long as the doctor (or other health care provider) knowingly conceals the malpractice that caused the injury. Tolling of the SOL is only fair as long as the victim is unable to discover the provider’s mistakes because of the provider’s own concealment.2
What if the victim is a child?
A child’s parents or guardians are subject to the same three-year statute of limitations as adult victims. But there are two exceptions:
If the injury involves brain damage or a birth defect, the SOL is until the child is 10 years old; and
If the injury caused the child to suffer sterility, the time limit to sue is two (2) years after the child discovers the injury.3
What is medical malpractice?
In Nevada, medical malpractice is called professional negligence. It comprises:
[T]he failure of a provider of health care … to use the reasonable care, skill or knowledge … used under similar circumstances by similarly trained and experienced providers…4
To win a medical malpractice claim, plaintiffs must prove the following fiveelements by a preponderance of the evidence:
The defendant (medical professional) owed the plaintiff a duty to exercise due care;
The defendant had a heightened duty to use such skill, prudence, diligence, and a standard of care as other members of the profession commonly possess and exercise;
The defendant breached this duty of care;
This breach injured the plaintiff; and
The injury resulted in damages.5
The hardest element to prove is that the defendant’s breach caused the plaintiff’s injury. Plaintiffs usually have to submit an affidavit of a medical expert in the same or similar field as the defendant. The affiant has to declare that the injury resulted from the defendant’s negligence and was not a natural result of the victim’s prior maladies.
Five common examples of medical malpractice are:
Failure to get informed consent from the patient for a medical procedure
Failure to refer the patient to a specialist when necessary
Failure to diagnose or provide medical treatment for a disease or complications
But non-economic damages – such as pain and suffering – are capped at $350,000. No personal injury attorney can recover more than that.6
Can patients still sue if they signed a liability waiver?
Possibly. Liability waivers should not bar lawsuits under Nevada medical malpractice law if either:
The patient was not of sound mind at the time of signing it;
The patient did not sign the waiver willingly; and/or
The patient’s injuries fall outside the scope of what was disclosed in the liability form.7
Call our law firm for legal advice on your medical malpractice case.
Our personal injury lawyers create attorney-client relationships throughout the state of Nevada. We fight to recover the largest possible settlement in medical malpractice lawsuits. Our experienced Las Vegas medical malpractice attorneys offer free consultations on your legal claims.
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.