Res Ipsa Loquitur In Nevada Medical Malpractice Actions

As background, in 2002 Nevada was dealing with a significant medical malpractice insurance crisis in which doctors were leaving the state due to ever-increasing malpractice premiums. In an effort to deter frivolous medical malpractice litigation and stabilize insurance premiums, the Nevada legislature enacted NRS 41A.071. This statute requires a trial court to dismiss a medical malpractice action, without prejudice, if the action is filed without an affidavit from a medical expert in a substantially similar specialty area who supports the malpractice allegations contained in the action.

In NRS 41A.100, however, the Nevada legislature also enumerated certain exceptional conditions that create a “rebuttable presumption of negligence” that the injury or death was caused by the negligence of the health care provider under 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.

This statutory res ipsa loquitor doctrine is also significant in that it negates the need under NRS 41A.071 for a patient/plaintiff to submit an affidavit in support of their underlying malpractice action.

In Peck v. Zipf, the Supreme Court of Nevada was recently asked to determine what constitutes a “surgery” for purposes of a patient/plaintiff not needing to produce an affidavit about a foreign substance unintentionally left within their body.

Peck was a state prisoner who was admitted to Valley Hospital where he received treatment from doctors Zipf and Barnum for viral meningitis. Following his release from the hospital, Peck claims that he discovered a foreign object under the skin of his left hand. Peck’s complaint relied upon NRS 41A.100(a) but did not expressly assert that the foreign object was left within his body as a result of “surgery.” The doctors’ motion for judgment on the pleadings was granted and this appeal ensued.

During oral argument, Peck’s appellate counsel argued that the foreign object unintentionally left under Peck’s skin was an intravenous (IV) needle inserted into his left hand during his medical treatment. Since the statute clearly requires that the foreign object must have been left inside the body as a result of surgery, the Supreme Court first searched for a statutory definition of surgery within NRS 41A.100 to no avail. The Court thereafter consulted with Black’s Law Dictionary, which defines surgery to include “operative measures” to heal diseases or injuries. Moreover, the Court also relied upon an administrative code regulation (NAC 449.9743) related to the licensing and operation of surgical centers, which similarly defines “surgery” as the treatment of human beings by “operative methods.”

As a result of the Supreme Court’s careful consideration of these secondary source materials, the Court agreed with Doctors Zipf and Barnum’s more common-sense proposition that the mere insertion of an IV needle into a patient’s hand is not the type of “operative” measure or method that constitutes “surgery” under Nevada’s medical malpractice statute. Further, because Peck’s complaint failed to attach an affidavit from a medical professional to support his allegation of malpractice, the trial court properly dismissed Peck’s case without prejudice.