Senate Bill No. 257–Committee on Judiciary

 

March 11, 2003

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Referred to Committee on Judiciary

 

SUMMARY—Revises various provisions pertaining to malpractice. (BDR 3‑104)

 

FISCAL NOTE:    Effect on Local Government: No.

                             Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to malpractice; providing that a trier of fact may consult a published treatise, periodical, pamphlet or table concerning the award of noneconomic damages in an action for medical malpractice or dental malpractice under certain circumstances; revising the limitation on the amount of noneconomic damages that may be awarded in an action for medical malpractice or dental malpractice; providing that certain reports concerning malpractice must be made available for access on the Internet; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 41A of NRS is hereby amended by adding

1-2  thereto a new section to read as follows:

1-3  1.  In determining the amount of any noneconomic damages

1-4  awarded to a plaintiff in an action for damages for medical

1-5  malpractice or dental malpractice, the trier of fact may consult a

1-6  published treatise, periodical, pamphlet or table that contains

1-7  information concerning awards for noneconomic damages in this

1-8  state or in another jurisdiction in similar actions for damages for

1-9  medical malpractice or dental malpractice if the treatise,

1-10  periodical, pamphlet or table is established as a reliable authority

1-11  by the testimony or admission of a witness or by judicial notice.

2-1  2.  If a treatise, periodical, pamphlet or table is established as

2-2  a reliable authority pursuant to this section, in determining the

2-3  amount of any noneconomic damages awarded to a plaintiff after

2-4  consulting the treatise, periodical, pamphlet or table, the trier of

2-5  fact:

2-6  (a) May give the treatise, periodical, pamphlet or table the

2-7  same weight as other evidence, or may disregard the treatise,

2-8  periodical, pamphlet or table.

2-9  (b) Shall not give the treatise, periodical, pamphlet or table

2-10  undue weight or use the treatise, periodical, pamphlet or table as a

2-11  substitute for its independent judgment.

2-12      Sec. 2.  NRS 41A.031 is hereby amended to read as follows:

2-13      41A.031  1.  Except as otherwise provided in subsection 2 and

2-14  except as further limited in subsection 3, in an action for damages

2-15  for medical malpractice or dental malpractice, the noneconomic

2-16  damages awarded to each plaintiff from each defendant must not

2-17  exceed [$350,000.] 10 percent of the economic damages awarded

2-18  to each plaintiff from each defendant.

2-19      2.  In an action for damages for medical malpractice or dental

2-20  malpractice, the limitation on noneconomic damages set forth in

2-21  subsection 1 does not apply in the following circumstances and

2-22  types of cases:

2-23      (a) A case in which the conduct of the defendant is determined

2-24  to constitute gross malpractice; or

2-25      (b) A case in which, [following return of a verdict by the jury or

2-26  a finding of damages in a bench trial, the court determines, by clear

2-27  and convincing evidence admitted at trial, that an award in excess of

2-28  $350,000 for noneconomic damages is justified because of

2-29  exceptional circumstances.] during the 2 years immediately

2-30  preceding the date on which the case was filed, there have been

2-31  three or more judgments entered against the defendant in which

2-32  the defendant was found liable for damages for malpractice.

2-33      3.  Except as otherwise provided in subsection 4, in an action

2-34  for damages for medical malpractice or dental malpractice, in the

2-35  circumstances and types of cases described in subsections 1 and 2,

2-36  the noneconomic damages awarded to each plaintiff from each

2-37  defendant must not exceed the amount of money remaining under

2-38  the professional liability insurance policy limit covering the

2-39  defendant after subtracting the economic damages awarded to that

2-40  plaintiff. Irrespective of the number of plaintiffs in the action, in no

2-41  event may any single defendant be liable to the plaintiffs in the

2-42  aggregate in excess of the professional liability insurance policy

2-43  limit covering that defendant.

2-44      4.  The limitation set forth in subsection 3 does not apply in an

2-45  action for damages for medical malpractice or dental malpractice

3-1  unless the defendant was covered by professional liability insurance

3-2  at the time of the occurrence of the alleged malpractice and on the

3-3  date on which the insurer receives notice of the claim, in an amount

3-4  of:

3-5  (a) Not less than $1,000,000 per occurrence; and

3-6  (b) Not less than $3,000,000 in the aggregate.

3-7  5.  This section is not intended to limit the responsibility of any

3-8  defendant for the total economic damages awarded.

3-9  6.  For the purposes of this section, “gross malpractice” means

3-10  failure to exercise the required degree of care, skill or knowledge

3-11  that amounts to:

3-12      (a) A conscious indifference to the consequences which may

3-13  result from the gross malpractice; and

3-14      (b) A disregard for and indifference to the safety and welfare of

3-15  the patient.

3-16      Sec. 3.  NRS 690B.045 is hereby amended to read as follows:

3-17      690B.045  Except as more is required in NRS 630.3067 and

3-18  633.526:

3-19      1.  Each insurer which issues a policy of insurance covering the

3-20  liability of a practitioner licensed pursuant to chapters 630 to 640,

3-21  inclusive, of NRS for a breach of his professional duty toward a

3-22  patient shall report to the board which licensed the practitioner

3-23  within 30 days each settlement or award made or judgment rendered

3-24  by reason of a claim, if the settlement, award or judgment is for

3-25  more than $5,000, giving the name and address of the claimant and

3-26  the practitioner and the circumstances of the case.

3-27      2.  A practitioner licensed pursuant to chapters 630 to 640,

3-28  inclusive, of NRS who does not have insurance covering liability for

3-29  a breach of his professional duty toward a patient shall report to the

3-30  board which issued his license within 30 days of each settlement or

3-31  award made or judgment rendered by reason of a claim, if the

3-32  settlement, award or judgment is for more than $5,000, giving his

3-33  name and address, the name and address of the claimant and the

3-34  circumstances of the case.

3-35      3.  These reports are public records and must be made available

3-36  for public inspection within a reasonable time after they are received

3-37  by the licensing board. These reports must be made available for

3-38  access on the Internet or its successor, if any, without charge.

3-39      Sec. 4.  The amendatory provisions of section 2 of this act

3-40  apply only to a cause of action that accrues on or after October 1,

3-41  2003.

 

3-42  H