(On Behalf of the Insurance Division of the
Department of Business and Industry)
June 10, 1997
____________
Referred to Committee on Judiciary
SUMMARY--Revises provisions governing actions for malpractice and screening panels for medical or dental malpractice claims. (BDR 3-1702)
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; revising provisions governing such actions; revising provisions governing screening panels for medical or dental malpractice claims; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
Section 1 NRS 41A.033 is hereby amended to read as follows:
41A.033 The division, through the commissioner of insurance:
1. Shall maintain a list of the names of the attorneys, physicians, dentists, administrators of hospitals and persons employed by hospitals in management positions on the northern tentative screening panel and on the southern tentative screening panel;
2. Shall select the members of the screening panels;
3. Shall schedule the hearings for those panels;
4. Shall obtain, before or after the filing of the complaint, such health care records, dental records, statements of policy and procedure, and other materials as may be required by the parties or the screening panel in connection with the claim;
5. Shall charge and collect a reasonable fee for copying materials produced under subpoena;
6. For good cause shown, may authorize [extensions of time for the filing of:
(a) An answer, not to exceed 60 days;
(b) A response, not to exceed 10 days; and
(c) Continuances,] a continuance for the proceedings involving a screening panel; and
7. May adopt such rules of practice and procedure as are necessary to carry out its duties pursuant to NRS 41A.003 to 41A.069, inclusive.
Sec. 2 NRS 41A.033 is hereby amended to read as follows:
41A.033The division, through the commissioner of insurance:
1. Shall maintain a list of the names of the attorneys, physicians, administrators of hospitals and persons employed by hospitals in management positions on the northern tentative screening panel and on the southern tentative screening panel;
2. Shall select the members of the screening panels;
3. Shall schedule the hearings for those panels;
4. Shall obtain, before or after the filing of the complaint, such health care records, statements of policy and procedure, and other materials as may be required by the parties or the screening panel in connection with the claim;
5. Shall charge and collect a reasonable fee for copying materials produced under subpoena;
6. For good cause shown, may authorize [extensions of time for the filing of:
(a) An answer, not to exceed 60 days;
(b) A response, not to exceed 10 days; and
(c) Continuances,] a continuance for the proceedings involving a screening panel; and
7. May adopt such rules of practice and procedure as are necessary to carry out its duties pursuant to NRS 41A.003 to 41A.069, inclusive.
Sec. 3 NRS 41A.039 is hereby amended to read as follows:
41A.0391. 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.
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, within [30] 90 days after receipt of the complaint, file an answer with the division, accompanied by a fee of $350. The division may authorize an extension of the time in which an answer must be filed only if all parties to the action stipulate to the extension.
4. If an answer is not timely filed with the division, the respondent who failed to file the answer may not participate in any conference held pursuant to NRS 41A.043.
5. 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] 30 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.] The division may authorize an extension of the time in which a response may be filed only if all parties to the action stipulate to the extension.
6. Unless otherwise stipulated to by all the parties to the action, the division may not accept any answer or response that is not timely filed.
7. 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 [,] or by personal service, to each opposing party or, if he is represented in the proceedings by counsel, to his attorney.
[6.] 8. 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.
9. If a person fails to pay any fee required by this section, the commissioner of insurance may refer the nonpayment to the office of the attorney general for collection of the fee and any costs incurred.
Sec. 4 NRS 41A.039 is hereby amended to read as follows:
41A.0391. 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.
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, within [30] 90 days after receipt of the complaint, file an answer with the division, accompanied by a fee of $350. The division may authorize an extension of the time in which an answer must be filed only if all parties to the action stipulate to the extension.
4. If an answer is not timely filed with the division, the respondent who failed to file the answer may not participate in any conference held pursuant to NRS 41A.043.
5. 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] 30 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.] The division may authorize an extension of the time in which a response may be filed only if all parties to the action stipulate to the extension.
6. Unless otherwise stipulated to by all the parties to the action, the division may not accept any answer or response that is not timely filed.
7. 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 [,] or by personal service, to each opposing party or, if he is represented in the proceedings by counsel, to his attorney.
[6.] 8. 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.
9. If a person fails to pay any fee required by this section, the commissioner of insurance may refer the nonpayment to the office of the attorney general for collection of the fee and any costs incurred.
Sec. 5 NRS 41A.043 is hereby amended to read as follows:
41A.0431. Within 35 days after the expiration of the time in which to answer the complaint of medical or dental malpractice, the division shall hold a conference to resolve any issues as to challenges for cause. For good cause shown, the division may continue the conference once, for a period not to exceed 7 days. A party may challenge any person on the tentative screening panel for cause on any of the grounds provided by NRS 16.050 for the challenge of jurors.
2. The division shall determine whether cause exists to excuse any member of the tentative screening panel and shall notify each party of the excused members no later than the completion of the conference required by subsection 1.
3. Except as otherwise provided in this subsection, each party is entitled to not more than:
(a) Three peremptory challenges from the list of attorneys in cases involving medical or dental malpractice;
(b) Three peremptory challenges from the list of physicians in cases involving medical malpractice; and
(c) Three peremptory challenges from the list of dentists in cases involving dental malpractice.
In any case in which there are two or more claimants or respondents, they are collectively entitled to not more than six peremptory challenges from the list of members selected for the tentative screening panel. Each party asserting a peremptory challenge shall notify the division of the challenge at the conference required by subsection 1. If several parties are represented by the same attorney, those parties shall be deemed to be one party for the purpose of determining the distribution of peremptory challenges.
4. In cases involving medical malpractice, the division shall randomly select, from the list of members of the tentative screening panel who have not been excused for cause or by a peremptory challenge, the names of three physicians, three attorneys and, if a hospital is also named in the complaint, one administrator of a hospital or person employed by a hospital in a management position, to serve on the screening panel for review of a claim of medical malpractice, but the representative of a hospital may not vote on any claim before the screening panel.
5. In cases involving dental malpractice, the division shall randomly select, from the list of members of the tentative screening panel who have not been excused for cause or by a peremptory challenge, the names of three dentists and three attorneys to serve on the screening panel for review of the claim.
6. The division shall notify the parties and the members selected to serve on the screening panel immediately after it has made the selections. If any member so selected declines to serve, the division shall immediately and randomly select a replacement from the list. The division shall not release or disclose to any person the names of the members selected.
7. If, because of the exercise of challenges for cause or peremptory challenges or any other reason, no attorney, dentist, physician or administrator of a hospital designated pursuant to NRS 41A.023 remains available to serve on the screening panel, the division shall immediately notify the Nevada Trial Lawyers Association, the Nevada State Medical Association, the Nevada State Dental Association or the Nevada Hospital Association, as appropriate, and that association shall immediately designate a replacement from among its members. No person who is not so designated may serve on the screening panel.
Sec. 6 NRS 41A.043 is hereby amended to read as follows:
41A.0431. Within 35 days after the expiration of the time in which to answer the complaint of medical malpractice, the division shall hold a conference to resolve any issues as to challenges for cause. For good cause shown, the division may continue the conference once, for a period not to exceed 7 days. A party may challenge any person on the tentative screening panel for cause on any of the grounds provided by NRS 16.050 for the challenge of jurors.
2. The division shall determine whether cause exists to excuse any member of the tentative screening panel and shall notify each party of the excused members no later than the completion of the conference required by subsection 1.
3. Except as otherwise provided in this subsection, each party is entitled to not more than:
(a) Three peremptory challenges from the list of attorneys; and
(b) Three peremptory challenges from the list of physicians.
In any case in which there are two or more claimants or respondents, they are collectively entitled to not more than six peremptory challenges from the list of members selected for the tentative screening panel. Each party asserting a peremptory challenge shall notify the division of the challenge at the conference required by subsection 1. If several parties are represented by the same attorney, those parties shall be deemed to be one party for the purpose of determining the distribution of peremptory challenges.
4. The division shall randomly select, from the list of members of the tentative screening panel who have not been excused for cause or by a peremptory challenge, the names of three physicians, three attorneys and, if a hospital is also named in the complaint, one administrator of a hospital or person employed by a hospital in a management position, to serve on the screening panel for review of a claim of medical malpractice, but the representative of a hospital may not vote on any claim before the screening panel.
5. The division shall notify the parties and the members selected to serve on the screening panel immediately after it has made the selections. If any member so selected declines to serve, the division shall immediately and randomly select a replacement from the list. The division shall not release or disclose to any person the names of the members selected.
6. If, because of the exercise of challenges for cause or peremptory challenges or any other reason, no attorney, physician or administrator of a hospital designated pursuant to NRS 41A.023 remains available to serve on the screening panel, the division shall immediately notify the Nevada Trial Lawyers Association, the Nevada State Medical Association or the Nevada Hospital Association, as appropriate, and that association shall immediately designate a replacement from among its members. No person who is not so designated may serve on the screening panel.
Sec. 7 NRS 41A.049 is hereby amended to read as follows:
41A.0491. A claim must be heard by the screening panel within 30 days after the panel is selected.
2. The screening panel shall consider all the documentary material, including the complaint, answer and response, health care records, dental records and records of a hospital or office 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. The screening panel shall not consider challenges concerning any relevant statute of limitation relating to a claim before the panel.
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. 8 NRS 41A.049 is hereby amended to read as follows:
41A.0491. A claim must be heard by the screening panel within 30 days after the panel is selected.
2. The screening panel shall consider all the documentary material, including the complaint, answer and response, health care records and records of a hospital or office 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. The screening panel shall not consider challenges concerning any relevant statute of limitation relating to a claim before the panel.
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. 9 NRS 41A.100 is hereby amended to read as follows:
41A.1001. Liability for personal injury or death is not imposed upon any provider of medical care based on alleged negligence in the performance of that care unless evidence consisting of expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the alleged personal injury or death, except that such evidence is not required and a rebuttable presumption that the personal injury or death was caused by negligence arises where evidence is presented that the personal injury or death occurred in any one or more of the following circumstances:
(a) A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;
(b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment;
(c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;
(d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or
(e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient's body.
2. As used in this section, "provider of medical care" means a physician, dentist, registered nurse or a licensed hospital as the employer of any such person.
Sec. 10 NRS 41A.110 is hereby amended to read as follows:
41A.110A physician licensed to practice medicine under the provisions of chapter 630 of NRS , or a dentist licensed to practice dentistry under the provisions of chapter 631 of NRS, has conclusively obtained the consent of a patient for a medical , [or] surgical or dental procedure , as appropriate, if he has done the following:
1. Explained to the patient in general terms without specific details, the procedure to be undertaken;
2. Explained to the patient alternative methods of treatment, if any, and their general nature;
3. Explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks; and
4. Obtained the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment and risks involved, as provided in this section.
Sec. 11 NRS 41A.120 is hereby amended to read as follows:
41A.120In addition to the provisions of chapter 129 of NRS and any other instances in which a consent is implied or excused by law, a consent to any medical , [or] surgical or dental procedure will be implied if:
1. In competent medical judgment , the proposed medical , [or] surgical or dental procedure is reasonably necessary and any delay in performing such a procedure could reasonably be expected to result in death, disfigurement, impairment of faculties [,] or serious bodily harm; and
2. A person authorized to consent is not readily available.
Sec. 12 1. This section and sections 1, 3, 5, 7, 9, 10 and 11 of this act become effective on October 1, 1997.
2. Sections 1, 3, 5, 7, 9, 10 and 11 of this act expire by limitation on July 1, 1999.
3. Sections 2, 4, 6 and 8 of this act become effective on July 1, 1999.