Justia Professional Malpractice & Ethics Opinion Summaries

In 2009, a surgeon performed a shoulder replacement surgery on a patient, during which the patient suffered a fracture and subsequent nerve injury, resulting in permanent radial nerve palsy. The patient sued the surgeon and associated medical entities for professional negligence, claiming vicarious liability. The case went to trial twice; the first trial resulted in a verdict for the defendants, but the court granted a new trial due to juror misconduct. The second trial resulted in a verdict for the patient, awarding significant damages, which the court reduced according to statutory caps.The Eighth Judicial District Court of Clark County oversaw the trials. After the second trial, the court reduced the pain and suffering damages to $350,000 pursuant to NRS 41A.035, awarded attorney fees, and capped expert witness costs. The defendants moved for a new trial based on alleged juror misconduct, which the court denied. Both parties appealed various aspects of the court's decisions, including the application of the damages cap, the res ipsa loquitur instruction, and the award of attorney fees and costs.The Supreme Court of Nevada reviewed the case. It held that the district court did not abuse its discretion in giving a res ipsa loquitur instruction despite expert testimony, as the relevant statutory amendments did not apply retroactively. The court affirmed the reduction of pain and suffering damages to $350,000, applying the statutory cap to both the surgeon and the medical entities. The court also upheld the denial of a new trial based on juror misconduct, finding no intentional concealment or prejudice.Regarding attorney fees, the Supreme Court affirmed the district court's award but modified it to comply with NRS 7.095, capping the total recoverable amount. The court found no conflict between NRCP 68 and NRS 18.005 but remanded the case for further proceedings on expert witness fees, requiring a more detailed application of the Frazier factors. The judgment and order denying a new trial were affirmed, the attorney fees award was affirmed as modified, and the order retaxing costs was reversed in part. View "NEVINS VS. MARTYN" on Justia Law

In 2021, Hal de Becker contracted COVID-19 and was treated with ivermectin by his personal physician. Hal was later admitted to Desert Springs Hospital Medical Center, where his ivermectin treatment was stopped without consent, and he was administered remdesivir. Hal's condition deteriorated, and he died shortly after being discharged. Hal's family sued the attending doctors and the hospital, alleging negligence, professional negligence, and wrongful death, claiming the doctors and hospital failed to obtain informed consent and made treatment decisions based on media narratives.The Eighth Judicial District Court dismissed the claims against the doctors and the hospital. The court found that the claims against the doctors were barred by the Public Readiness and Emergency Preparedness Act (PREP Act) and that the expert affidavit provided by the plaintiffs did not meet the requirements of NRS 41A.071. The court also dismissed the claims against the hospital, finding them similarly barred by the PREP Act and that the claims were for professional negligence rather than ordinary negligence.The Supreme Court of Nevada reviewed the case and affirmed the lower court's decision. The court held that the plaintiffs' claims were for professional negligence and required an expert affidavit under NRS 41A.071. The court found the expert affidavit insufficient as to the doctors because it did not specify acts of negligence separately for each doctor. However, the affidavit was sufficient as to the hospital. Despite this, the court concluded that the PREP Act barred the claim against the hospital because it related to the administration of remdesivir, a covered countermeasure. Therefore, the dismissal of the complaint was affirmed. View "De Becker v. UHS of Delaware, Inc." on Justia Law

Ramel Ortiz was convicted of six counts of sexual assault and other felonies after breaking into M.P.'s house and forcing her to engage in multiple sexual acts. Four of these sexual assault counts arose from an incident during which Ortiz subjected M.P. to intercourse in different sexual positions. Ortiz appealed his conviction, arguing that his appellate counsel provided ineffective assistance by failing to challenge the sufficiency of the evidence to support multiple sexual assault convictions.Ortiz's case was first reviewed by the Eighth Judicial District Court, Clark County, which denied his postconviction petition for a writ of habeas corpus. Ortiz then appealed to the Supreme Court of the State of Nevada.The Supreme Court of the State of Nevada found that appellate counsel's omission of a sufficiency challenge to the multiple convictions fell below an objective standard of reasonableness. The court concluded that because the sufficiency challenge stood a reasonable probability of success had it been raised on appeal from the judgment of conviction, Ortiz was prejudiced by appellate counsel's omission of that challenge. The court therefore reversed in part and remanded for the district court to vacate three of Ortiz's sexual assault convictions. However, the court affirmed the district court's decision as to Ortiz's remaining claims, which it found to lack merit. View "Ortiz v. State" on Justia Law

The Supreme Court of Nevada ruled on a motion for disqualification of a supreme court justice in a medical malpractice action appeal. The appellant argued that Nevada Code of Judicial Conduct 2.11(A)(6)(d) required disqualification of Justice Douglas Herndon, who had been assigned the case when he was a district judge, but had not heard or decided any matters in the case before it was reassigned. The appellant argued that the rule required disqualification whenever a judge previously presided over a matter, regardless of the level of involvement.Justice Herndon and the respondents countered that he had seen no documents and performed no work on the case at the district court level, and therefore his impartiality could not be questioned. They argued that the Code of Judicial Conduct does not require disqualification in such circumstances, and that a judge has a general duty to hear and decide cases where disqualification is not required.After considering the language and context of the Code of Judicial Conduct, along with similar cases from other jurisdictions, the Supreme Court of Nevada held that to "preside" over a matter within the meaning of the disqualification rule, a judge must have exercised some control or authority over the matter in the lower court. Given that Justice Herndon had simply been administratively assigned the case and took no action during his assignment, he did not "preside" over the case in a way that mandated disqualification. The court therefore denied the motion for disqualification. View "Taylor v. Brill" on Justia Law

This case involves an appeal from a judgment of conviction for second-degree murder with the use of a deadly weapon. The appellant, Jamel Gibbs, was convicted following a trial during which a recorded phone call between him and a defense investigator was admitted as evidence. Gibbs was in pretrial detention at the time of the call, which was made on a recorded line using another inmate's phone access code and a three-way calling system.Gibbs argued that the recorded phone call was protected by attorney-client privilege and should not have been admitted into evidence. The district court ruled against him, reasoning that the conversation was not privileged because Gibbs violated jail policy by using another inmate's phone access code and making a three-way call.On appeal, the Supreme Court of the State of Nevada disagreed with the district court's ruling. The court held that a defendant’s call to a defense investigator, even if made through a three-way call, does not, on its own, amount to a waiver of the attorney-client privilege unless it can be shown that the third party remained present during the conversation. The court also found that violating jail telephone policies does not automatically result in a waiver of the attorney-client privilege. As such, the district court erred in admitting the recorded phone call into evidence.Furthermore, the Supreme Court concluded that this error was not harmless beyond a reasonable doubt, as the recorded phone call directly undermined Gibbs's planned defense strategy and necessitated a change in strategy at the start of trial. Therefore, the judgment of conviction was reversed and the case was remanded for a new trial. View "Gibbs v. State" on Justia Law

In the case at hand, the Court of Appeals of the State of Nevada reversed and remanded a district court order that had dismissed a professional negligence action for being time-barred. The case was brought by Gina Engelson, as the special administrator of the estate of Lenore Meyer, against Dignity Health (doing business as St. Rose Dominican Hospital-Siena Campus) and Grape Holdings LLC (doing business as Sage Creek Post-Acute). Lenore Meyer had developed a severe bedsore while being treated at these facilities. Meyer's family alleged that the care provided by the facilities fell below the standard of care in multiple ways, including failing to timely and adequately treat the bedsore. Meyer eventually died, and exactly one year after her death, Engelson filed a professional negligence complaint against the facilities. The district court dismissed the complaint as time-barred, finding that the complaint was filed more than a year after the estate and its special administrator knew or should have known about the relevant legal injury.Upon review, the Court of Appeals found that the district court erred in dismissing the complaint as time-barred. The Court of Appeals clarified that an affidavit of merit, which is required to support a professional negligence-based wrongful death claim, need not opine as to the element of causation. The Court of Appeals concluded that the evidence did not irrefutably demonstrate that the estate or its special administrator discovered or should have discovered the legal injury more than a year before the filing of the complaint. Therefore, the Court of Appeals reversed the district court's order and remanded for further proceedings. View "Engelson v. Dignity Health" on Justia Law

In a contentious guardianship case involving Kathleen June Jones, the court appointed a guardian ad litem (GAL), attorney Elizabeth Brickfield, to aid in determining Jones's best interests. The GAL filed a notice of intent to seek fees and costs at her standard hourly rate. The court awarded her those fees over Jones's objection. Jones appealed, arguing that the GAL had no right to fees when the district court order appointing her did not specify the rate, that the court improperly appointed an attorney as the GAL, and that the rate of compensation to which the GAL is entitled should be that of a fiduciary, not an attorney.The Supreme Court of the State of Nevada held that Jones waived any argument pertaining to the form of the district court’s order by failing to raise the issue below. The court also held that the district court erred in interpreting NRS 159.0455(3) as requiring the court to appoint an attorney where there is no court-approved volunteer program, but this error was harmless because the district court expressly appointed an experienced attorney as the GAL due to the complexity of this matter. Lastly, the court held that the record contains substantial evidence supporting the GAL’s fee request and the district court did not abuse its discretion in awarding the GAL the full amount of her requested fees. The court affirmed the district court’s order awarding the GAL fees. View "In re Guardianship of Jones" on Justia Law

The Supreme Court affirmed the order of the district court, certified as final under Nev. R. Civ. P. 54(b), partially dismissing a medical malpractice action for failure to meet the affidavit-of-merit requirement set forth in Nev. Rev. Stat. 41A.071 as to three of the named defendants, holding that there was no error.Appellant, as special administrator of the estate of Sharon Monk, sued University Medical Center and Sharon's other healthcare providers, including the three physicians who were the respondents to this appeal, alleging negligence. Monk supported the complaint with a declaration from Nurse Jamescia Hambrick. The district court granted Respondents' motion to dismiss on the grounds that Nurse Hambrick lacked the qualifications necessary to establish Nev. Rev. Stat. 41A.071 as to Respondents. The Supreme Court affirmed, holding that Appellant's claims against Respondents was not exempted from section 41A.071's affidavit-of-merit requirement. View "Monk v. Ching" on Justia Law

The Supreme Court affirmed in part and reversed in part the decision of the district court entering summary judgment in this action concerning the assignability of the proceeds from a legal malpractice action, holding that the district court properly invalidated the assignment at issue.In question was the assignment of proceeds to an adverse party in the underlying litigation from which the alleged legal malpractice arose. The Supreme Court remanded the case, holding (1) public policy prohibits an assignment of proceeds from a legal malpractice claim to an adversary in the underlying litigation; (2) the district court properly invalidated the assignment at issue; and (3) an invalid assignment does not, by itself, preclude an injured client from pursuing a legal malpractice claim if the assignment has been set aside. View "Beavor v. Tomsheck" on Justia Law

The Supreme Court reversed the order of the district court dismissing Plaintiff's complaint for failure to attach an affidavit of merit after concluding that her allegations sounded in professional negligence, holding that remand for further proceedings was required.At issue in this case was the relationship between Nevada's professional negligence statutes, Nev. Rev. Stat. Ch. 41A, and Nevada's elder abuse statute, Nev. Rev. Stat. 41.1395, and the statutes' application to claims against skilled nursing home facilities. The district court concluded that Plaintiff's allegations sounded in professional negligence, which claims require Plaintiffs to include an affidavit of merit as part of their complaint, and then dismissed the complaint for failure to attach such an affidavit. The Supreme Court reversed, holding (1) on the face of Plaintiff's complaint it was unclear whether the gravamen of her claims sounded in professional negligence rather than elder abuse; and (2) remand was required for further factual development before such a determination can be reached. View "Yafchak v. South Las Vegas Medical Investors, LLC" on Justia Law