SUMMARY--Requires certain actions for medical or dental malpractice to be submitted to mediation before they are submitted to screening panel. (BDR 3-932)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to actions for malpractice; requiring certain actions for medical or dental malpractice to be submitted to mediation before they are submitted to a screening panel; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 Chapter 41A of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.
Sec. 2 1. Each action for medical or dental malpractice for which the claim for damages is $75,000 or less must be submitted to mediation before it may be submitted to a screening panel pursuant to NRS 41A.039.
2. The claimant and the person against whom the complaint is being made shall select a mediator by agreement. If the parties cannot agree upon a mediator within 45 days after the claimant first selects a mediator, either party may petition the American Arbitration Association, the Nevada Arbitration Association, the Nevada Dispute Resolution Services or another organization that provides services of mediation and is acceptable to the parties for the appointment of a mediator. The mediator may discover only those documents or records that are necessary to conduct the mediation. The mediator shall convene the mediation within 60 days after the matter is submitted to him, unless the parties agree to extend the time.
3. The person against whom the complaint is being made shall deposit with the mediator before the mediation begins an amount estimated by the mediator as necessary to pay for the salary and expenses of the mediator. The person against whom the complaint is made shall deposit additional amounts demanded by the mediator as necessary to pay for the salary and expenses of the mediator. The total fees for each day of mediation, including, without limitation, the salary and expenses of the mediator, must not exceed $750 per day.
Sec. 3 1. If, after undergoing mediation pursuant to section 2 of this act, the parties do not reach an agreement concerning the claim of medical or dental malpractice, the claimant may present his claim to a screening panel. Except as otherwise provided in subsection 2, if such an action is subsequently filed in a district court, the person who prevails may recover the reasonable costs and fees of the mediation as costs of the action.
2. If the mediator determines that a party has not participated in good faith in the mediation, that party shall be responsible for all costs and fees of the mediation as determined by the mediator.
3. Upon conclusion of the mediation, if the claimant intends to submit the complaint to an appropriate screening panel, he shall request the mediator to prepare a document to be submitted to the screening panel which outlines the proceedings and discovery in which the mediator has participated. The document must include, without limitation, a statement regarding the belief of the mediator as to whether both parties participated in the mediation in good faith. The mediator shall prepare the document and give a copy of the document to the claimant not later than 5 days after receiving such a request from the claimant.
4. A document prepared by a mediator pursuant to subsection 3 is admissible in the cause of action, but a statement or admission made by either party in the course of mediation is not admissible.
Sec. 4 NRS 41A.039 is hereby amended to read as follows:
41A.039 1. A claim of medical or dental malpractice is properly presented to a screening panel by filing a complaint with the division. A fee of $350 must accompany the complaint. In addition to the fee, if the claim was submitted to mediation pursuant to section 2 of this act, the document prepared by the mediator pursuant to section 3 of this act also must accompany the complaint.
2. The complaint must contain a clear and concise statement of the facts of the case, showing the persons involved and the dates and circumstances, so far as they are known, of the alleged medical or dental malpractice. A screening panel may dismiss a complaint if the complaint is filed without an affidavit supporting the allegations of the complaint submitted by a medical expert.
3. The person against whom a complaint is made [must,] shall, within 30 days after receipt of the complaint, file an answer with the division, accompanied by a fee of $350.
4. The claimant may respond only to the allegations of the answer or any accompanying affidavit by filing a written response with the division within 21 days after he receives the answer. The panel shall disregard any portion of the response that does not address an allegation raised in the answer or an affidavit accompanying the answer. No fee may be charged or collected by the division for the filing of the response.
5. A copy of any pleading required by this section to be filed with the division must be delivered by the party, by certified or registered mail, to each opposing party or, if he is represented in the proceedings by counsel, to his attorney.
6. The fees provided by this section must not be charged or collected more than once:
(a) From any party; or
(b) For the filing of any complaint, regardless of the number of parties joined in the complaint.
Sec. 5 NRS 41A.039 is hereby amended to read as follows:
41A.039 1. A claim of medical malpractice is properly presented to a screening panel by filing a complaint with the division. A fee of $350 must accompany the complaint. In addition to the fee, if the claim was submitted to mediation pursuant to section 2 of this act, the document prepared by the mediator pursuant to section 3 of this act also must accompany the complaint.
2. The complaint must contain a clear and concise statement of the facts of the case, showing the persons involved and the dates and circumstances, so far as they are known, of the alleged medical malpractice. A screening panel may dismiss a complaint if the complaint is filed without an affidavit supporting the allegations of the complaint submitted by a medical expert.
3. The person against whom a complaint is made [must,] shall, within 30 days after receipt of the complaint, file an answer with the division, accompanied by a fee of $350.
4. The claimant may respond only to the allegations of the answer or any accompanying affidavit by filing a written response with the division within 21 days after he receives the answer. The panel shall disregard any portion of the response that does not address an allegation raised in the answer or an affidavit accompanying the answer. No fee may be charged or collected by the division for the filing of the response.
5. A copy of any pleading required by this section to be filed with the division must be delivered by the party, by certified or registered mail, to each opposing party or, if he is represented in the proceedings by counsel, to his attorney.
6. The fees provided by this section must not be charged or collected more than once:
(a) From any party; or
(b) For the filing of any complaint, regardless of the number of parties joined in the complaint.
Sec. 6 NRS 41A.049 is hereby amended to read as follows:
41A.049 1. A claim must be heard by the screening panel within 30 days after the panel is selected.
2. The screening panel shall consider all of the documentary material, including , without limitation, the complaint, answer and response, health care records, dental records and records of a hospital or office , the document prepared by a mediator pursuant to section 3 of this act if the claim was required to be submitted to mediation and the testimony of any expert witnesses the panel considers necessary, and shall determine only, from that evidence, whether there is a reasonable probability that the acts complained of constitute medical or dental malpractice and that the claimant was injured thereby. Except for the issue of whether there is a reasonable probability of medical or dental malpractice and whether the claimant was injured thereby, the screening panel shall not consider any pleading or paper to the extent that it addresses a legal issue presented by the claim or a legal argument of a party.
3. Copies of the original complaint and of the findings of the screening panel with regard to each matter considered by the panel must be forwarded to:
(a) In cases involving medical malpractice:
(1) The board of medical examiners; and
(2) The county medical society of the county in which the alleged malpractice occurred.
(b) In cases involving dental malpractice, the board of dental examiners of Nevada.
4. The commissioner of insurance shall mail to the parties a copy of the findings of the screening panel concerning the complaint.
5. The written findings must be based upon a vote of the members of the screening panel made by written ballot, must be rendered within 5 days after the review and must be in substantially the following form:
(a) Based upon a review of the materials submitted by the parties and the testimony of medical or other experts (if any were called) we find that there is a reasonable probability of medical or dental malpractice and that the claimant was injured thereby;
(b) Based upon a review of the materials submitted by the parties and the testimony of medical or other experts (if any were called) we find that there is no reasonable probability of medical or dental malpractice; or
(c) Based upon a review of the materials submitted by the parties and the testimony of medical or other experts (if any were called) we are unable to reach a decision on the issue of medical or dental malpractice.
6. Whenever four members of the screening panel are unable to find that there is a reasonable probability of medical or dental malpractice and that the claimant was injured thereby or that there is no reasonable probability of medical or dental malpractice, the screening panel shall be deemed unable to reach a decision on the issue and shall make a finding to that effect.
Sec. 7 NRS 41A.049 is hereby amended to read as follows:
41A.049 1. A claim must be heard by the screening panel within 30 days after the panel is selected.
2. The screening panel shall consider all of the documentary material, including , without limitation, the complaint, answer and response, health care records and records of a hospital or office , the document prepared by a mediator pursuant to section 3 of this act if the claim was required to be submitted to mediation and the testimony of any expert witnesses the panel considers necessary, and shall determine only, from that evidence, whether there is a reasonable probability that the acts complained of constitute medical malpractice and that the claimant was injured thereby. Except for the issue of whether there is a reasonable probability of medical malpractice and whether the claimant was injured thereby, the screening panel shall not consider any pleading or paper to the extent that it addresses a legal issue presented by the claim or a legal argument of a party.
3. Copies of the original complaint and of the findings of the screening panel with regard to each matter considered by the panel must be forwarded to:
(a) The board of medical examiners; and
(b) The county medical society of the county in which the alleged malpractice occurred.
4. The commissioner of insurance shall mail to the parties a copy of the findings of the screening panel concerning the complaint.
5. The written findings must be based upon a vote of the members of the screening panel made by written ballot, must be rendered within 5 days after the review and must be in substantially the following form:
(a) Based upon a review of the materials submitted by the parties and the testimony of medical experts (if any were called) we find that there is a reasonable probability of medical malpractice and that the claimant was injured thereby;
(b) Based upon a review of the materials submitted by the parties and the testimony of medical experts (if any were called) we find that there is no reasonable probability of medical malpractice; or
(c) Based upon a review of the materials submitted by the parties and the testimony of medical experts (if any were called) we are unable to reach a decision on the issue of medical malpractice.
6. Whenever four members of the screening panel are unable to find that there is a reasonable probability of medical malpractice and that the claimant was injured thereby or that there is no reasonable probability of medical malpractice, the screening panel shall be deemed unable to reach a decision on the issue and shall make a finding to that effect.
Sec. 8 NRS 41A.097 is hereby amended to read as follows:
41A.097 1. Except as otherwise provided in subsection 2, 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:
(a) Injury to or the wrongful death of a person, based upon alleged professional negligence of the provider of health care;
(b) Injury to or the wrongful death of a person from professional services rendered without consent; or
(c) Injury to or the wrongful death of a person from error or omission in practice by the provider of health care.
2. This time limitation is tolled:
(a) For any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to him.
(b) In any action governed by the provisions of NRS 41A.003 to 41A.069, inclusive [, from] :
(1) From the date a claimant files a complaint for mediation until 30 days after the date the mediator provides the claimant with a copy of the document prepared by the mediator pursuant to section 3 of this act.
(2) From the date a claimant files a complaint for review by a screening panel until 30 days after the date the panel notifies the claimant, in writing, of its findings.
The provisions of this paragraph apply to an action against the provider of health care and to an action against any person, government or political subdivision of a government who is alleged by the claimant to be liable vicariously for the medical or dental malpractice of the provider of health care, if the provider, person, government or political subdivision has received notice of the filing of a complaint for mediation or for review by a screening panel within the limitation of time provided in subsection 1.
3. For the purposes of this section, the parent, guardian or legal custodian of any minor child is responsible for exercising reasonable judgment in determining whether to prosecute any cause of action limited by subsection 1. If the parent, guardian or custodian fails to commence an action on behalf of that child within the prescribed period of limitations, the child may not bring an action based on the same alleged injury against any provider of health care upon the removal of his disability, except that in the case of:
(a) Brain damage or birth defect, the period of limitation is extended until the child attains 10 years of age.
(b) Sterility, the period of limitation is extended until 2 years after the child discovers the injury.
4. As used in this section, "provider of health care" means a physician licensed under chapter 630 or 633 of NRS, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, doctor of acupuncture, medical laboratory director or technician, or a licensed hospital as the employer of any such person.
Sec. 9 NRS 41A.097 is hereby amended to read as follows:
41A.097 1. Except as otherwise provided in subsection 2, 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:
(a) Injury to or the wrongful death of a person, based upon alleged professional negligence of the provider of health care;
(b) Injury to or the wrongful death of a person from professional services rendered without consent; or
(c) Injury to or the wrongful death of a person from error or omission in practice by the provider of health care.
2. This time limitation is tolled:
(a) For any period during which the provider of health care has concealed any act, error or omission upon which the action is based and which is known or through the use of reasonable diligence should have been known to him.
(b) In any action governed by the provisions of NRS 41A.003 to 41A.069, inclusive [, from] :
(1) From the date a claimant files a complaint for mediation until 30 days after the date the mediator provides the claimant with a copy of the document prepared by the mediator pursuant to section 3 of this act.
(2) From the date a claimant files a complaint for review by a screening panel until 30 days after the date the panel notifies the claimant, in writing, of its findings.
The provisions of this paragraph apply to an action against the provider of health care and to an action against any person, government or political subdivision of a government who is alleged by the claimant to be liable vicariously for the medical malpractice of the provider of health care, if the provider, person, government or political subdivision has received notice of the filing of a complaint for mediation or for review by a screening panel within the limitation of time provided in subsection 1.
3. For the purposes of this section, the parent, guardian or legal custodian of any minor child is responsible for exercising reasonable judgment in determining whether to prosecute any cause of action limited by subsection 1. If the parent, guardian or custodian fails to commence an action on behalf of that child within the prescribed period of limitations, the child may not bring an action based on the same alleged injury against any provider of health care upon the removal of his disability, except that in the case of:
(a) Brain damage or birth defect, the period of limitation is extended until the child attains 10 years of age.
(b) Sterility, the period of limitation is extended until 2 years after the child discovers the injury.
4. As used in this section, "provider of health care" means a physician licensed under chapter 630 or 633 of NRS, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, doctor of acupuncture, medical laboratory director or technician, or a licensed hospital as the employer of any such person.
Sec. 10 NRS 630.364 is hereby amended to read as follows:
630.364 1. [Any] A person or organization who furnishes information concerning an applicant for a license or a licensee in good faith and without malicious intent in accordance with the provisions of this chapter is immune from any civil action for furnishing that information.
2. The board and any of its members and its staff, counsel, investigators, experts, committees, panels, hearing officers and consultants are immune from any civil liability for:
(a) Any decision or action taken in good faith and without malicious intent in response to information acquired by the board.
(b) Disseminating information concerning an applicant for a license or a licensee to other boards or agencies of the state, the attorney general, any hospitals, medical societies, insurers, employers, patients and their families or any law enforcement agency.
3. A screening panel or any of its members, acting pursuant to NRS 41A.003 to 41A.069, inclusive, who initiates or assists in any proceeding concerning a claim of malpractice against a physician is immune from any civil action for that initiation or assistance or any consequential damages, if the panel or members acted without malicious intent.
4. A mediator, acting pursuant to sections 2 and 3 of this act, who initiates or assists in any proceeding concerning a claim of malpractice against a physician is immune from any civil action for that initiation or assistance or any consequential damages, if the mediator acted without malicious intent.
Sec. 11 Section 2 of this act is hereby amended to read as follows:
Sec. 2. 1. Each action for medical [or dental] malpractice for which the claim for damages is $75,000 or less must be submitted to mediation before it may be submitted to a screening panel pursuant to NRS 41A.039.
2. The claimant and the person against whom the complaint is being made shall select a mediator by agreement. If the parties cannot agree upon a mediator within 45 days after the claimant first selects a mediator, either party may petition the American Arbitration Association, the Nevada Arbitration Association, the Nevada Dispute Resolution Services or another organization that provides services of mediation and is acceptable to the parties for the appointment of a mediator. The mediator may discover only those documents or records that are necessary to conduct the mediation. The mediator shall convene the mediation within 60 days after the matter is submitted to him, unless the parties agree to extend the time.
3. The person against whom the complaint is being made shall deposit with the mediator before the mediation begins an amount estimated by the mediator as necessary to pay for the salary and expenses of the mediator. The person against whom the complaint is made shall deposit additional amounts demanded by the mediator as necessary to pay for the salary and expenses of the mediator. The total fees for each day of mediation, including, without limitation, the salary and expenses of the mediator, must not exceed $750 per day.
Sec. 12 Section 3 of this act is hereby amended to read as follows:
Sec. 3. 1. If, after undergoing mediation pursuant to section 2 of this act, the parties do not reach an agreement concerning the claim of medical [or dental] malpractice, the claimant may present his claim to a screening panel. Except as otherwise provided in subsection 2, if such an action is subsequently filed in a district court, the person who prevails may recover the reasonable costs and fees of the mediation as costs of the action.
2. If the mediator determines that a party has not participated in good faith in the mediation, that party shall be responsible for all costs and fees of the mediation as determined by the mediator.
3. Upon conclusion of the mediation, if the claimant intends to submit the complaint to an appropriate screening panel, he shall request the mediator to prepare a document to be submitted to the screening panel which outlines the proceedings and discovery in which the mediator has participated. The document must include, without limitation, a statement regarding the belief of the mediator as to whether both parties participated in the mediation in good faith. The mediator shall prepare the document and give a copy of the document to the claimant not later than 5 days after receiving such a request from the claimant.
4. A document prepared by a mediator pursuant to subsection 3 is admissible in the cause of action, but a statement or admission made by either party in the course of mediation is not admissible.
Sec. 13 1. This section and section 10 of this act become effective on October 1, 1997.
2. Sections 1, 2, 3, 4, 6 and 8 of this act become effective on October 1, 1997, and expire by limitation on June 30, 1999.
3. Sections 5, 7, 9, 11 and 12 of this act become effective on July 1, 1999.