How to Bring a “Medical Malpractice” Claim in Las Vegas, NV

Updated January 21, 2022

Medical malpractice lawsuits in Nevada are when patients sue healthcare providers, such as doctors, chiropractors, dentists, nurses, or hospitals. The legal claim is that the provider’s professional negligence caused their injuries. Defendants can seek unlimited compensation for out-of-pocket expenses and up to $350,000 for pain and suffering.

Below, our Nevada personal injury lawyers discuss:

• 1. What is a medical malpractice case in Nevada?
• 2. Is there a limit to damages in a medical malpractice lawsuit?
• 3. Whom do I sue for medical malpractice?
• 4. How do I file a medical malpractice claim?
• 5. How long do I have to file suit?
• 6. What if I signed a liability waiver?

1. What is a medical malpractice case in Nevada?

Under NRS 41A.015, medical malpractice in Nevada is called “professional negligence.” The statute defines it as:

“[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…¹

Acceptable medical standards depend on current norms:

Example: For ten years, Dr. Nguyen has been prescribing Zantac. Then in 2019, the FDA announced Zantac may cause cancer. Dr. Nguyen then switched her patients to new medicines. Here, Dr. Nguyen committed no malpractice. She reasonably did not know Zantac was dangerous. And she acted once the FDA made its announcement.

What if Dr. Nguyen continued prescribing Zantac even after the FDA warning? And some patients developed cancer? Then she might be liable for medical malpractice. Prescribing in defiance of FDA protocols is likely negligent.

Ten examples of medical malpractice are:

1. Failure to get informed consent to a medical procedure
2. Failure to refer to a specialist
3. Failure to treat complications
4. Failure to diagnose
5. Failure to treat disease
6. Failure to oversee employees or agents
7. Failure to render appropriate care
8. Giving the wrong dosage or type of medicine
9. Wrongful death during surgery
10. Wrongful birth

2. Is there a limit to damages in a medical malpractice lawsuit?

For Nevada medical malpractice cases, there are no limits to economic damages. Economic damages include compensation for:

• Medical bills, such as hospital stays, home health care, and medication,
• Lost wages from being too injured to work,
• Loss of future earnings from being too injured to work in the future, and
• Other out-of-pocket costs

But Nevada caps non-economic damages at $350,000.² Non-economic damages include:

• Pain and suffering,
• Physical impairment, and
• Other damages difficult to calculate³

Nevada voters approved the cap on non-economic damages in 2004. It was part of a medical malpractice reform ballot. The measure was called the “Keep Our Doctors in Nevada” initiative. The Nevada Supreme Court has upheld this cap as constitutional.⁴

Most malpractice cases settle without a trial. But depending on the situation, it may be worth it to litigate. Insurance payouts increase as insurance claims advance through the legal system.⁵

In general, payouts are lowest for claims closed prior to filing. And payouts are highest for claims closed after a trial. In Nevada, claims decided by a trial result in average payouts at least 2½ times larger than settled claims.⁶

3. Whom do I sue for medical malpractice?

Ten potential defendants in Nevada malpractice lawsuits include:

1. Physicians, which may include general practitioners, specialists and surgeons
2. Physician assistants (PAs)
3. The nurses, including APRNs
4. Hospitals, clinics, or surgery centers
5. Chiropractors
6. Dentists and hygienists
7. Optometrists
8. Physical or occupational therapists
9. Dietitians
10. Medical laboratory directors and technicians.

Predictably, doctors and their medical groups/employers have the deepest pockets.

4. How do I file a medical malpractice claim?

Nevada law provides specific instructions for filing a malpractice claim. They must be followed to the letter. Ultimately, plaintiffs must prove the following five “elements”:

1. The defendant owed the plaintiff a duty to exercise due care toward the plaintiff;
2. The defendant had a heightened duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise;
3. The defendant breached the duty of care;
4. That breach caused harm to the plaintiff; and
5. The plaintiff was damaged by the breach

Many people do not see doctors until they are already sick. So it may be hard to determine whether a victim’s injury or death resulted from the provider’s negligence.

To prove this direct causation in Nevada, the law usually requires the plaintiff to submit an affidavit of a medical expert. The expert must be in the same or similar field as the defendant. The affiant must declare that the injury was the result of the defendant’s negligence and not a natural result of the victim’s illness.

If the case goes to trial, further medical expert testimony may be necessary. Plaintiffs must prove it is more likely than not that the defendant’s negligence caused the injuries.⁷

5. How long do I have to file suit?

In Nevada, the statute of limitations is three years after a doctor’s malpractice. However, victims’ injuries may not appear until far later. In these situations, victims may file suit by the earlier of:

• One year from discovering the injury; or
• One year from the date on which the victim should have discovered the injury through reasonable diligence.⁸

Learn more about statutes of limitations in Nevada personal injury cases.

6. What if I signed a liability waiver?

Consent forms may prevent patients from suing for medical negligence if:

1. The patient was of sound mind when signing it. For example, not under the influence of heavy painkillers; and
2. The patient signed the form willingly. For instance, no one forced the patient to sign; and
3. The waiver identifies the risks of the medical procedure and drugs.

But in several cases, patients’ injuries fall outside the scope of consent forms. Or the doctor did not adequately disclose all the risks. There are often ways to sue despite a liability waiver.⁹