Nevada Healthcare Malpractice Damages, Question 3 (2004)

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The Nevada Healthcare Malpractice Damages Question, also known as Question 3 or Keep Our Doctors in Nevada, was an initiated state statute on the November 2, 2004 election ballot in Nevada, where it was approved.[1]

Election results

Question 3 (Healthcare Malpractice Damages)
Approveda Yes 468,059 59.3%

Official results via: Nevada Legislative Counsel Bureau - Research Division

Text of measure

The language that appeared on the ballot:

Shall Title 1 of the Nevada Revised Statutes governing attorneys, and Title 3 of the Nevada Revised Statutes governing actions for medical or dental malpractice and damage awards, be amended to limit the fees an attorney could charge a person seeking damages against a negligent provider of health care in medical malpractice actions, limit the amount of noneconomic damages a person may recover from a negligent provider of health care in medical malpractice actions, eliminate joint liability of providers of health care in medical malpractice actions, shorten the statute of limitations in medical malpractice actions, prohibit third parties who provided benefits as a result of medical malpractice from recovering such benefits from a negligent provider of health care, and allow negligent providers of health care to make periodic payments of future damages?[2]

The language that appeared in the voter's guide:

If passed, the proposal would limit the fees an attorney could charge a person seeking damages against a negligent provider of health care in a medical malpractice action. Professional negligence means a negligent act, or omission to act, by a provider of health care that is the proximate cause of a personal injury or wrongful death. A provider of health care means a physician licensed under Chapters 630 and 633 of the Nevada Revised Statutes, a dentist, licensed nurse, dispensing optician, optometrist, registered physical therapist, podiatric physician, licensed psychologist, chiropractor, doctor of Oriental medicine, medical laboratory director or technician, or a licensed hospital and its employees.
The law currently provides that a person seeking damages in a medical malpractice action is limited to recovering $350,000 in noneconomic damages from each defendant, with two exceptions. Noneconomic damages is money paid to the injured person to compensate for pain, suffering, inconvenience, physical impairment, and disfigurement, while economic damages is money paid to compensate for the injured person’s medical treatment, care or custody, loss of earning and loss of earning capacity. The two current exceptions to the $350,000 cap on noneconomic damages allow an injured person to receive more than $350,000 if: (1) the wrongdoer committed gross malpractice, or (2) exceptional circumstances justify an award in excess of the cap. The proposal, if passed, would remove the two statutory exceptions to the existing $350,000 cap, and limit the recovery of noneconomic damages to $350,000 per action.
Currently, damages that an injured person is allowed to recover in a medical malpractice action may be reduced by benefits the person received from a third party, such as Medicaid, private insurance, or workers’ compensation. If passed, the proposal would not change the reduction of the injured person’s damages, but the third parties would no longer be permitted to recover from the wrongdoer the expenses they have paid on behalf of a medical malpractice victim. One effect of this provision could be an increased burden on the state Medicaid fund, which consists of taxpayer dollars.
Current law provides that each one of multiple defendants in medical malpractice actions is severally, but not jointly liable for noneconomic damages. This means that a single defendant among multiple defendants in a medical malpractice action is required to pay the injured person only the share of noneconomic damages attributable to that defendant’s wrongful conduct and would not have to pay the share attributable to the wrongful conduct of another defendant. However, the current law treats economic damages differently, and provides that each defendant is not only severally liable, but also jointly liable for payment of economic damages; a defendant that is jointly liable could be required to pay the injured person for not only his wrongful conduct, but also for the wrongful conduct of all other defendants. The proposal, if passed, would change the current law by repealing joint and several liability for economic damages and treat liability for recovery of economic damages in medical malpractice cases the same as for noneconomic damages, such that defendants are only severally, but not jointly liable. This imposes the risk of nonpayment to the injured party if a defendant is not able to pay his percentage of damages, such as when that defendant has insufficient insurance or assets to pay his share.
The proposal also revises the statute of limitations for the filing of actions. The current law that requires an injured person to file a medical malpractice lawsuit within 3 years of the date of injury remains unchanged. The current law also provides that if the injury was not immediately apparent, the injured person has 2 years from the time the person discovers or should have discovered the injury to file the lawsuit. The proposal would reduce this time from 2 years to 1 year.
Finally, the proposal would make changes to how certain damages are paid by health care providers who have been found negligent, and provides for other matters properly related thereto. It requires that when an award equals or exceeds $50,000 in future damages, the court must allow the same to be paid in periodic payments instead of a lump sum, if requested by either party.[2]

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