A Nevada bill giving patients a time cushion to file an expert witness affidavit required for medical malpractice lawsuits was touted by backers on Mar. 17 as an issue of fairness and opposed by medical groups as undermining the spirit of an initiative passed by voters to cap malpractice awards and reduce frivolous litigation.
Existing law requires dismissal of a malpractice lawsuit if the suit doesn’t include an affidavit from a medical expert supporting the allegations.
Assemblyman Tick Segerblom, D-Las Vegas, the primary sponsor of AB149, said the bill would give plaintiffs 45 days from the time the suit is filed to include the affidavit under certain circumstances.
The affidavit requirement is designed to show the allegations have some merit.
But witnesses at the hearing before the Assembly Judiciary Committee said sometimes the affidavit becomes separated from the suit, or cannot be obtained within the one-year statute of limitations to file such actions.
Sandra Payan of Las Vegas told the committee her mother had surgery for a hernia and died sometime later. It was then determined that during her operation her colon was punctured and later ruptured, causing her death, Payan said.
After more than two years of litigation, the medical malpractice suit filed by the family was dismissed just weeks before trial after defense attorneys successfully argued the affidavit was not filed along with the suit but instead was filed separately a few days later, she said.
Speaking against the bill, Dr. Rudy Manthei, an ophthalmologist, said it would erode provisions of the Keep Our Doctors in Nevada initiative passed by voters in 2004.
He said a key element of the measure changed from two years to one the amount of time people have to file a malpractice suit after they discover or should have discovered the injury.
Manthei said the 12-month provision “allows for sufficient time for a plaintiff to find an attorney, secure medical records and a medical expert affidavit if there truly is merit to the potential claim.”
No action was taken by the committee.
Some committee members seemed inclined toward tweaking the affidavit requirement.
Assemblywoman Olivia Diaz, D-North Las Vegas, said dismissing a suit because an affidavit may have gotten lost in a clerical error was a harsh penalty. She told a story about her grandmother, who had to have surgery to remove towels left inside her after an operation.
“Giving that 45-day window, that is beneficial to both parties,” she said.
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