Assembly Bill No. 187–Assemblymen Angle, Knecht, Gustavson, Griffin, Sherer and Weber

 

February 24, 2003

____________

 

Joint Sponsors: Senators Rawson, O’Connell,
Cegavske and Shaffer

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Makes various changes concerning tort actions. (BDR 3‑161)

 

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 tort actions; providing that defendants in an action for medical malpractice are severally liable for economic and noneconomic damages; limiting the recovery of noneconomic damages in all tort actions; requiring that damages awarded in certain actions be reduced by the amount of any benefit received from a collateral source; providing that defendants in an action for personal injury or wrongful death are severally liable for noneconomic damages; 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.  NRS 41A.031 is hereby amended to read as

1-2  follows:

1-3  41A.031  1.  Except as otherwise provided in subsection 2 and

1-4  except as further limited in subsection 3, in an action for damages

1-5  for medical malpractice or dental malpractice[,] where the alleged

1-6  malpractice occurred on or after October 1, 2002, but before

2-1  October 1, 2003, the noneconomic damages awarded to each

2-2  plaintiff from each defendant must not exceed $350,000.

2-3  2.  In an action for damages for medical malpractice or dental

2-4  malpractice[,] where the alleged malpractice occurred on or after

2-5  October 1, 2002, but before October 1, 2003, the limitation on

2-6  noneconomic damages set forth in subsection 1 does not apply in the

2-7  following circumstances and types of cases:

2-8  (a) A case in which the conduct of the defendant is determined

2-9  to constitute gross malpractice; or

2-10      (b) A case in which, following return of a verdict by the jury or

2-11  a finding of damages in a bench trial, the court determines, by clear

2-12  and convincing evidence admitted at trial, that an award in excess of

2-13  $350,000 for noneconomic damages is justified because of

2-14  exceptional circumstances.

2-15      3.  Except as otherwise provided in subsection 4, in an action

2-16  for damages for medical malpractice or dental malpractice[,] where

2-17  the alleged malpractice occurred on or after October 1, 2002, but

2-18  before October 1, 2003, in the circumstances and types of cases

2-19  described in subsections 1 and 2, the noneconomic damages

2-20  awarded to each plaintiff from each defendant must not exceed the

2-21  amount of money remaining under the professional liability

2-22  insurance policy limit covering the defendant after subtracting the

2-23  economic damages awarded to that plaintiff. Irrespective of the

2-24  number of plaintiffs in the action, in no event may any single

2-25  defendant be liable to the plaintiffs in the aggregate in excess of the

2-26  professional liability insurance policy limit covering that defendant.

2-27      4.  The limitation set forth in subsection 3 does not apply in an

2-28  action for damages for medical malpractice or dental malpractice

2-29  unless the defendant was covered by professional liability insurance

2-30  at the time of the occurrence of the alleged malpractice and on the

2-31  date on which the insurer receives notice of the claim, in an amount

2-32  of:

2-33      (a) Not less than $1,000,000 per occurrence; and

2-34      (b) Not less than $3,000,000 in the aggregate.

2-35      5.  This section is not intended to limit the responsibility of any

2-36  defendant for the total economic damages awarded.

2-37      6.  For the purposes of this section, “gross malpractice” means

2-38  failure to exercise the required degree of care, skill or knowledge

2-39  that amounts to:

2-40      (a) A conscious indifference to the consequences which may

2-41  result from the gross malpractice; and

2-42      (b) A disregard for and indifference to the safety and welfare of

2-43  the patient.

 

 

3-1  Sec. 2.  NRS 41A.041 is hereby amended to read as follows:

3-2  41A.041  1.  In an action for damages for medical malpractice,

3-3  each defendant is liable for economic and noneconomic damages

3-4  severally only, and not jointly, to the plaintiff only for that portion

3-5  of the judgment which represents the percentage of negligence

3-6  attributable to the defendant.

3-7  2.  As used in this section, “medical malpractice” means the

3-8  failure of a physician, hospital, employee of a hospital, certified

3-9  nurse midwife or certified registered nurse anesthetist in rendering

3-10  services to use the reasonable care, skill or knowledge ordinarily

3-11  used under similar circumstances.

3-12      Sec. 3.  Chapter 42 of NRS is hereby amended by adding

3-13  thereto the provisions set forth as sections 4, 5 and 6 of this act.

3-14      Sec. 4.  1.  In an action for damages for personal injury or

3-15  wrongful death, the trier of fact shall itemize, in the verdict, the

3-16  award of damages to reflect the monetary amount intended for:

3-17      (a) Past expenses for medical treatment, care or custody;

3-18      (b) Future expenses for medical treatment, care or custody;

3-19      (c) Past loss of earnings;

3-20      (d) Future loss of earnings;

3-21      (e) Noneconomic damages; and

3-22      (f) Other damages.

3-23      2.  Except as otherwise provided in this section and NRS

3-24  41.035 and 41.503, in an action for damages for personal injury or

3-25  wrongful death, a judgment for noneconomic damages must not

3-26  exceed $250,000 per claim, regardless of the number of

3-27  defendants.

3-28      3.  If the action is tried before a jury, the court or a party to

3-29  the action must not instruct or otherwise advise the jury

3-30  concerning the limitation on noneconomic damages set forth in

3-31  this section.

3-32      4.  The limitation on noneconomic damages set forth in

3-33  subsection 2 does not apply to a cause of action that arises from:

3-34      (a) Willful misconduct; or

3-35      (b) An act or omission that constitutes a felony.

3-36      5.  This section applies to an act, error or omission occurring

3-37  on or after October 1, 2003, that allegedly caused the personal

3-38  injury or wrongful death.

3-39      6.  As used in this section, “noneconomic damages” includes

3-40  damages to compensate for pain, suffering, inconvenience,

3-41  physical impairment, disfigurement and other nonpecuniary

3-42  damages.

3-43      Sec. 5.  1.  In an action for damages for personal injury or

3-44  wrongful death in which the liability of the defendant is

3-45  established or admitted, the court shall, before the entry of

4-1  judgment, hold a separate hearing to determine if the plaintiff, as

4-2  the result of the personal injury or wrongful death, has received a

4-3  benefit from a collateral source. If the court determines that the

4-4  plaintiff has received a benefit from a collateral source, the court

4-5  shall reduce the amount of damages, if any, awarded in the action

4-6  by the amount of the benefit.

4-7  2.  As used in this section and except as otherwise provided in

4-8  subsection 3, “benefit from a collateral source” means any money,

4-9  service or other benefit that is paid, provided or reimbursed, or is

4-10  reasonably likely to be paid, provided or reimbursed, to the

4-11  plaintiff for the personal injury or wrongful death pursuant to:

4-12      (a) A state or federal act;

4-13      (b) A policy of insurance;

4-14      (c) A contract or agreement of any group, organization,

4-15  partnership or corporation; or

4-16      (d) Any other publicly or privately funded program,

4-17  that provides benefits for sickness, physical injury, dental injury,

4-18  emotional injury, disability, accidents, loss of earnings or workers’

4-19  compensation.

4-20      3.  A benefit from a collateral source does not include a

4-21  benefit that is received by the plaintiff pursuant to subsection 2 to

4-22  the extent that the provider of the benefit:

4-23      (a) Is entitled to recover the benefit from the plaintiff; or

4-24      (b) Is subrogated to the rights of the plaintiff, if the right of

4-25  subrogation is exercised by serving a notice of lien on the plaintiff

4-26  before the settlement of or the entry of judgment in the action. The

4-27  plaintiff shall provide notice of the commencement of the action to

4-28  each provider of benefits that holds a lien provided by statute.

4-29      Sec. 6.  In an action for damages for personal injury or

4-30  wrongful death, other than an action for damages for medical

4-31  malpractice, each defendant is liable for noneconomic damages

4-32  severally only, and not jointly, to the plaintiff only for that portion

4-33  of the judgment which represents the percentage of negligence

4-34  attributable to the defendant.

4-35      Sec. 7.  NRS 42.020 is hereby amended to read as follows:

4-36      42.020  1.  [Except as otherwise provided in subsection 2, in

4-37  any] In an action for damages for personal injury or wrongful

4-38  death caused by medical malpractice, the court shall, in addition to

4-39  any reduction in the amount of damages required pursuant to

4-40  section 5 of this act, reduce the amount of damages, if any, awarded

4-41  in the action [must be reduced] by the amount of any prior payment

4-42  made by or on behalf of the [provider of health care against whom

4-43  the action is brought] defendant to the injured person or to the

4-44  claimant to meet reasonable expenses [of] for medical treatment,

5-1  care[,] or custody, reasonable expenses for other essential goods or

5-2  services , or reasonable living expenses.

5-3  2.  [In any action described in subsection 1 in which liability for

5-4  medical malpractice is established or admitted, the court shall,

5-5  before the entry of judgment, hold a separate hearing to determine if

5-6  any expenses incurred by the claimant for medical care, loss of

5-7  income or other financial loss have been paid or reimbursed as a

5-8  benefit from a collateral source. If the court determines that a

5-9  claimant has received such a benefit, the court shall reduce the

5-10  amount of damages, if any, awarded in the action by the amount of

5-11  the benefit. The amount so reduced must not include any amount for

5-12  which there is a right of subrogation to the rights of the claimant if

5-13  the right of subrogation is exercised by serving a notice of lien on

5-14  the claimant before the settlement of or the entry of judgment in the

5-15  action. Notice of the action must be provided by the claimant to any

5-16  statutory holder of a lien.

5-17      3.] If future economic damages are awarded in an action for

5-18  medical malpractice, the court may, at the request of the claimant,

5-19  order the award to be paid:

5-20      (a) In a lump sum which has been reduced to its present value as

5-21  determined by the trier of fact and approved by the court; or

5-22      (b) Subject to the provisions of subsections 4 and 5 [and 6] and

5-23  the discretion of the court, in periodic payments either by an annuity

5-24  purchased to provide periodic payments or by other means if the

5-25  defendant posts an adequate bond or other security to ensure full

5-26  payment by periodic payments of the damages awarded by the

5-27  judgment.

5-28  As used in this subsection, “future economic damages” includes

5-29  damages for future medical treatment, care or custody, and loss of

5-30  future earnings.

5-31      [4.] 3. If the claimant receives periodic payments pursuant to

5-32  paragraph (b) of subsection [3,] 2, the award must not be reduced to

5-33  its present value. The amount of the periodic payments must be

5-34  equal to the total amount of all future damages awarded by the trier

5-35  of fact and approved by the court. The period for which the periodic

5-36  payments must be made must be determined by the trier of fact and

5-37  approved by the court. Before the entry of judgment, each party

5-38  shall submit to the court a plan specifying the recipient of the

5-39  payments, the amount of the payments and a schedule of periodic

5-40  payments for the award. Upon receipt and review of the plans, the

5-41  court shall specify in its judgment rendered in the action the

5-42  recipient of the payments, the amount of the payments and a

5-43  schedule of payments for the award.

6-1  [5.] 4. If an annuity is purchased pursuant to paragraph (b) of

6-2  subsection [3,] 2, the claimant shall select the provider of the

6-3  annuity. Upon purchase of the annuity, the claimant shall:

6-4  (a) Execute a satisfaction of judgment or a stipulation for

6-5  dismissal of the claim with prejudice; and

6-6  (b) Release forever the defendant and his insurer, if any, from

6-7  any obligation to make periodic payments pursuant to the award.

6-8  [6.] 5. If the defendant posts a bond or other security pursuant

6-9  to paragraph (b) of subsection [3,] 2, upon termination of the

6-10  payment of periodic payments of damages, the court shall order

6-11  the return of the bond or other security, or as much as remains, to

6-12  the defendant.

6-13      [7.] 6. As used in this section[:

6-14      (a) “Benefit from a collateral source” means any money, service

6-15  or other benefit which is paid or provided or is reasonably likely to

6-16  be paid or provided to a claimant for personal injury or wrongful

6-17  death pursuant to:

6-18          (1) A state or federal act which provides benefits for

6-19  sickness, disability, accidents, loss of income or workers’

6-20  compensation;

6-21          (2) A policy of insurance which provides health benefits or

6-22  coverage for loss of income;

6-23          (3) A contract of any group, organization, partnership or

6-24  corporation which provides, pays or reimburses the cost of medical,

6-25  hospital or dental benefits or benefits for loss of income; or

6-26          (4) Any other publicly or privately funded program which

6-27  provides such benefits.

6-28      (b) “Medical] , “medical malpractice” has the meaning ascribed

6-29  to it in NRS 41A.009.

 

6-30  H