Dog Bites occur quite frequently in Clark County–about 4 per day!  The statistics show that 1,241 dog bites occurred in 2009 in Clark County.  This is the heaviest volume of dog bites recorded in the last 10 years, however, each year about 1,000 have been recorded annually give or take a few hundred.  The County keeps track of these statistics including the “bite by breed” statistic.   The overwhelming leader in Bites every year is the Pit Bull.  The Pit Bull accounts for 20% or so the bites every year.  Far greater than any other breed.   Bull dogs, labradors, mixed breeds, german shepherds, and terriers, consistently lead the pack here in Las Vegas dog bits.   Who knows if the shepherds bites are police related?  Upon reading the statistics, certainly some breeds may be more prone to bite, just as some breeds may be more prone to retrieve that ball you throw.  But, the major lacking component to the statistics is the TOTAL number of dogs that live in our community.

If Pit Bulls make up 50% of the households, then 20% of the bites is not a bad number!  It is likely hard to measure the total population of specific breeds unless each dog is officially registered.   No doubt that Pit Bulls are a popular animal–especially among Las Vegas residents.  The attraction may be the agility or the home defense characteristics that the dog breed possesses.  To prove my point, the Chihuahua in 2009 made up 11% of all dog bites in Clark County with 122 bites.  Compare this to 2000 when Chihuahua bites were only 1.3% of the total dog bites (14 total bites).  Perhaps Paris Hilton’s popularity of the animal tucked away in her dog purse helped Las Vegans want the animal more–who knows, but it is safe to say that Chihuahua’s population has increased, and that increase has had a marked impression on the total Chihuahua dog bites.  SO, WHAT DOES THIS MEAN?   Statistics must be looked at carefully.    If you have been the victim of a pit bull attack or other breed contact the dog attack lawyers at Benson & Bingham today 382-9797.

So if you have had Bull dog bite and need a Bull dog lawyer, or had a labrador bite and need a labrador attorney, a mixed breed bite, or a german shepherd bite, and/or  terrier bite, then you might just need a Terrier lawyer or shepherd attorney to handle that case. If is sounds silly it is, because personal injury lawyers don’t need to be specific breed attorneys, just solid dog bite attorneys who know the law.  Call us today:  702-382-9797

See the compiled statistics for animal attacks made by Clark County animal Control:

Plastic Surgery and Total Recovery Help from Benson & Bingham 702-382-9797.

Nevada’s strict rule requiring an affidavit for medical mal-practice complaints is now even stricter.  The NV Supreme court declared that expert affidavits for the mal-practice of doctors now also applies to those corporations (e.g Hospitals and their nurses) for their respective negligent conduct.   The rule simply adds harshness to the already cut-throat rule that an affidavit must be supplied to any complaint or it is automatically dismissed.  Thus, if your assistant fails to apply a staple–the case is over.  Very ridiculous, but this is medical tort reform just as the doctors wanted it.  Way to go Nevada legislature!

Fierle v. Perez, 125 Nev. Adv. Op. No. 36 (Nov 19, 2009)1 MEDICAL MALPRACTICE, PROFESSIONAL NEGLIGENCE AND NRS 41A.071’S

EXPERT AFFIDAVIT REQUIREMENT

Summary

An appeal from the First Judicial District Court’s dismissal of medical malpractice and professional negligence claims against a physician, his professional medical corporation and several staff members for failure to attach an expert affidavit to their initial complaint.

Disposition/Outcome

District court’s judgment affirmed with regards to claims that required an affidavit, reversed and remanded with regards to claim that qualified under res ipsa loquitor exceptions.

Facts and Procedural History

Patricia Fierle (“Fierle”) was diagnosed in July 2005 with breast cancer and subsequently underwent a mastectomy. To facilitate ongoing chemotherapy, a catheter was inserted into her chest, the tip of which was meant to terminate in her subclavian vein. Chemotherapy drugs were to be injected into the vein through this catheter.

After the surgery, Fierle became a patient of Dr. Perez and his staff, including Melissa Mitchell (“Mitchell”), a registered nurse, and nurse practitioners Charmaine Cruet and Linda Lesperance. On Fierle’s third visit to Dr. Perez’ office, Mitchell administered chemotherapy. However, rather than in fusing in to the catheter, the medication infused into her tissue. This caused a subcutaneous burn known as an “extravasation.” According to Fierle, her complaints of discomfort at the time were not met with any treatment or attention.

The next day, after one of Dr. Perez’ nurses noticed redness and swelling on Fierle’s chest, she was referred to a radiologist. His tests revealed that the tip of the catheter was not in the vein, but coiled in her tissue. She then sought treatment from another doctor who referred her to Dr. Miercort. His opinion was that “negligent extravasation” had occurred and he referred her to U.C. Davis Medical Center. There, she was diagnosed with “severe extravasation of chemotherapy over the right shoulder and subclavian region.”

Mr. and Mrs. Fierle filed a complaint in district court on September 14, 2006. They claimed Mitchell was negligent in her administration of chemotherapy, Dr. Perez, Cruet and Lesperance were negligent in their training of Mitchell, loss of consortium and “Willful Failure to Provide Treatment and Constructive Fraud” against Dr. Perez and his professional medical corporation Jorge Perez M.D., Ltd. They later amended their complaint to include an affidavit from Dr. Miercort.

Dr. Perez, Jorge Perez M.D., Ltd., and Mitchell moved for dismissal of the Fierles’ complaint, citing failure to include an expert affidavit with the original complaint as required by

1 By Mark HesiakNRS 41A.071.2 They also moved to strike the amended complaint, relying on Nevada precedent that said a complaint filed under NRS 41A.071 without the expert affidavit is void ab initio and shall be dismissed.3 These motions were joined by Cruet and Lesperance. The district court granted both motions, finding that the complaints did not qualify for NRS 41A.100(1)(c)’s res ipsa loquitor exception. The Fierles’ motions under NRCP 52(b), 59(e) and 60(b) were also later denied. This appeal followed.

Discussion

Standard of Review

The district court’s dismissal was based on its interpretation of statutes. The Nevada Supreme Court reviews a district court’s statutory interpretation de novo.4

NRS 41A.071 applies to professional medical corporations

Under NRS 41A.071, an action for medical or dental malpractice must be accompanied by an affidavit from a medical expert who practices a type of medicine similar to that which forms the basis of the malpractice claim.5 NRS 41A.009 contains the following definition for medical malpractice: “the failure of a physician, hospital or employee of a hospital, in rendering services, to use reasonable care, skill or knowledge ordinarily used under similar circumstances.”6 The appellants argued that no affidavit is required under these statutes in a suit against a professional medical corporation.

While the definition of medical malpractice does not explicitly include professional medical corporations, the Court held that NRS 41A.071 requires expert affidavits be attached to any non res ipsa loquitor malpractice claim against such a corporation. “Professional Corporation” is defined in NRS Chapter 89, and under NRS 89.060 and 89.220, no statute can alter the personal liability of a physician in a medical malpractice claim.7 Harmonizing Chapters 41A and 89, the Court determined that the affidavit requirement applies to claims against professional medical corporations as well as physicians.

NRS 41A.071 applies to professional negligence claims

The Fierles’ also argued that the definition of medical malpractice only covers claims against Dr. Perez’. Therefore, the claims against the other respondents would be for professional negligence and would not require an affidavit as 41A.071 only addresses malpractice claims. The Court looked to resolve the ambiguity by looking to the intent of the initiatives passed in 2004 as NRS 41A.015 and 41A.017, which provided protections for professional negligence for providers of health care.

2 NEV. REV. STAT § 41A.017 (2007). 3 Washoe Med. Ctr. v. Dist. Court, 122 Nev. 1298, 1300, 148 P.3d 790, 792 (2006). 4 Beazer Homes Nevada, Inc. v. Dist. Court, 120 Nev.575, 579, 97 P.3d 1132, 1135 (2004); Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003). 5 NEV. REV. STAT § 41A.017 (2007). 6 Id. § 41A.009 (2007). 7 Id. §§ 89.060, 89.220 (2007).

First, the Court noted that the definition of professional negligence in the statute is basically the same as medical malpractice. The intent of the statute was to give other providers of health care the same protection doctors received from the legislature in 2002.8 The Court also reasoned that a malpractice claim against a doctor is the same as a professional negligence claim. To make one of these claims subject to the affidavit requirement and not the other would defeat the intent of the legislature and the citizens of Nevada. It would provide a way around the requirement by calling a claim professional negligence instead of malpractice. Therefore, NRS 41A.071’s affidavit requirement extends to non-res ipsa loquitor professional negligence claims against providers of health care, whether doctors, nurses or nurse practicioners.

Claims based on res ipsa loquitor are not subject to the affidavit requirement

NRS 41A.100 provides res ipsa loquitor exceptions to the affidavit requirement in malpractice or professional negligence claims.9 The Court found its recent decision in Szydel v. Markman conclusive on the issue at hand.10 In Szydel, the court concluded that that the expert affidavit requirement does not apply when the malpractice action is based solely on the res ipsa loquitor doctrine.11 The Syzdel court further concluded that when a plaintiff files a res ipsa loquitor claim in conjunction with other medical malpractice claims that are not based upon the res ipsa loquitor doctrine, those other claims are still subject to the expert affidavit requirements of NRS 41A.071.12

Here, the negligent extravasation claim would fall under one of the listed exceptions. If a “provider of health care” causes a patient to suffer “an unintended burn caused by heat, radiation or chemicals… in the course of medical care,” or any of the other exceptions listed in the statute, no expert testimony or affidavit is required to establish negligence.13 Therefore, the Court allowed the claim against Mitchell to continue as she administered the medication.

A claim amended to include an affidavit will not relate back to the initial filing even if some of the claims do not require the affidavit

The appellants next argued that because some of their initial complaint did not require an affidavit, the amended filing could relate back and cure the initial deficiency. Here, the court followed precedent and determined that all claims under NRS 41A.071 that do not include an affidavit are void ab initio, and must be dismissed.14 The Court applied this rule even to situations where some claims survive because of lack of an affidavit requirement.

Conclusion

The Court concluded that, because under NRS Chapter 89, the establishment of a professional entity cannot alter the personal liability of a participant, NRS 41A.071’s affidavit

8 See 2004 General Election Sample Ballot, p. 12. 9 NEV. REV. STAT § 41A.100(1)(c) (2007). 10 Szydel v. Markman, 121 Nev. 453, 117 P.3d 200 (2005). 11 Id. at 454, 117 P.3d at 201. 12 Id. at 460, 117 P.3d at 205. 13 NEV. REV. STAT § 41A.100(1)(c) (2007); see also Szydel, 121 Nev. at 454, 117 P.3d at 201. 14 Washoe Med. Ctr., 122 Nev. at 1300, 148 P.3d at 792.

requirement applies to claims against professional medical corporations as well as individuals. The Court further concluded that the requirement extends to professional negligence claims against all providers of health care, nurse practitioners, nurses and doctors alike. However, the Court concluded that any claim that falls under the res ipsa loquitor exceptions listed in NRS 41A.100 may be filed without an affidavit as no expert testimony is needed to establish negligence. Finally, the Court concluded that a complaint filed containing some claims subject to the affidavit requirement and some that do not fall under 41A.071 cannot be cured by filing an amended complaint that includes the affidavits. Thus, all claims subject to NRS 41A.071 that are filed without the affidavits are void ab initio and must be dismissed. In accordance with these conclusions, the Court reversed in part and affirmed in part the district court’s order and remanded the case for further proceedings consistent with the opinion.

Concurrence in Part, Dissent in Part (Pickering, J.)

Justice Pickering agreed with the result the majority reached, but not with its reasoning. While medical malpractice is encompassed in the term “professional negligence,” the opposite is not true. As the amendments in 2004 did not change the words “medical malpractice” in 41A.071 to “professional negligence,” the requirement should not be extended to claims of professional negligence. However, in this case, Justice Pickering found the injection to be a part of the rendering of medical services by a physician as defined in the malpractice statute, regardless of the fact that it was a nurse who physically gave the drugs. Therefore, this action would be one for medical malpractice and require an affidavit.

Justice Pickering also believes that both the nurse and the physician with the duty to supervise are subject to the res ipsa loquitor exception. The injection was given by the nurse under the doctor’s supervision, and therefore the remand should be for Dr. Perez and Mitchell for the negligent extravasation.

In 2009, 243 people died on Nevada roads according to the state traffic safety director–81 fewer deaths than in 2008.  Nevada State authorities attribute the lower accident related deaths to better law enforcement and more laws to enforce.   While certainly this may be the only thing that can be actually analyzed in a quantifiable measure, the drop and continued drop of deaths likely has many other factors besides new laws.   Nevada deaths peaked with 431 total deaths in 2006—up from 381 deaths in 2002—a sea saw of statistics.  The State’s rationale can’t be correct.  In all likelihood, we had more traffic laws legislated from 2002 to 2006 yet we had an increase of deaths; so how does one truly explain the numbers?  You can’t.   Here is why.

The other factors that must be considered are:  population increases/decreases, population of drivers increasing, types of cars driven from 2002 to 2009 (SUV’s, airbag equipped vehicles, etc.), the economy (causing less total drivers on the road), the number of new freeways e.g. I-215 (adding to less traffic collisions as a percentage of total cars-less risks as no center dividers and cross traffic issues), etc.  Nevada still has not implemented laws prohibiting people from texting while driving, nor have they implemented laws to stop cell phone use while driving —yet we have an increase of both of those activities, yet a drop in deaths; in addition, our speeding has increased.  Most speed limits are now 65 mph with highway speeds allowing for 75 mph in certain rural areas.  In California, the death rate dropped when they increased the speed limits in 1998 when compared to 2002 when they calculated an increase from 55 to 65 mph with more drivers on the road—confused?  You should be.  What is really saving lives?  More laws?  Not likely.  Who really knows except to think car safety has improved dramatically—and a little luck.  Perhaps we are just luckier this year.   If next year traffic deaths increase what will we say caused it?

Court won’t disturb $82.6M award in SUV rollover

Supreme Court rebuffs Ford appeal of $82.6 million award to woman paralyzed in SUV rollover

• On 10:22 am EST, Monday November 30, 2009

WASHINGTON (AP) — The Supreme Court has left in place an $82.6 million award to a woman who was paralyzed after her Ford Explorer rolled over.

The justices on Monday rejected Ford Motor Co.’s challenge to the portion of the award, $55 million, that was intended as punitive damages. Ford argued that it should not be punished because its design of the vehicle met federal safety standards.

A California state appeals court earlier rejected Ford’s contention and upheld the award to Benetta Buell-Wilson.

She was driving on an interstate east of San Diego in January 2002 when she swerved to avoid a metal object and lost control of her 1997 Explorer, which rolled 4 1/2 times. The mother of two was paralyzed from the waist down when the roof collapsed on her neck, severing her spine.

A jury initially awarded Buell-Wilson $369 million, including $246 million in punitive damages but courts twice cut the size of the award. The jury concluded that Ford knew the Explorer had design defects that made it prone to rollovers in emergency maneuvers and the collapse of its roof.

The case is Ford v. Buell-Wilson, 09-297.

Settlements are sometimes the best way to go.   Victims in accident cases are often challenged with difficult questions arising from whether to settle a personal injury case, or whether to take the case in front of a jury.  In Nevada, 8 jurors and 1 or 2 alternates will make up the jury panel.  Of those 8 persons, 6 must agree (75%) on the verdict.  The verdict is a culmination of past and future pain and suffering, medical expenses, and wage loss in a personal injury case.   The jury must determine three things:  fault (liability), damages (the amount of appropriate compensation), and legal causation (what percentage or apportionment of the injuries claimed in the case are actually related to accident

Sometimes the Defendant will agree they are liable for the accident, but may dispute the neck injuries relate to the subject car accident; they may argue the cervical neck injuries relate to a previous accident or high school football injury for example.  Given the decisions that must be made by the jury, the decision to settle a case prior to a jury trial eliminates undue risk.

When liability and causation are clear, a damages trial is a great way to go given their is not as much risk.  The case then shifts from a “can we win” strategy to a “how much is it worth?” case.  So, when evaluating whether a case should be settled the risk factors must be considered.  Las Vegas Personal injury attorneys must educate their clients on the risks of taking a case to trial given that losing can not only be devastating to the victim’s emotions, but also their pocketbook as a losing party may incur attorney fees and litigation costs to the non-prevailing party.   The accident attorneys at Benson & Bingham understand that litigation has risks and appropriately advise when and when not to take the case to trial.

In recent years, most contracts have become very inclusive of arbitration provisions to mandate arbitration over a jury trial.  Arguably, this takes away from victims rights to have a jury decide the damages–something our fore fathers likely never envisioned changing.  But, it has.  The reality is that arbitration clauses limit a person’s ability to become litigious.  Real estate contracts now have provisions that mandate arbitration.  Often, the rules of evidence are relaxed, the arbitration is quickly performed, the costs are less, and it is final in its’ adjudication.  Sadly, this wave of alternative dispute resolution has certainly kept the court rooms from being inundated with contractual disputes, but has also taken such a strong right away: the right of your neighbors to hear your dispute on the merits and make an appropriate value decision.

In the context of automobile insurance cases, binding arbitration is mandated in certain policies.  Why?  It saves the carrier money to arbitrate a matter over litigating it in court.  It also takes away the “jackpot” that juries can sometimes award–even when justice requires.  This is problematic.  Often, the 1st party coverage does nothing to discuss terms of the arbitration.  It requires you arbitrate, but leaves out the important and sometimes crucial terms.  Thus, an attorney should argue, that the missing terms must be interpreted to fall under regular court rules.

For example, if a policy of insurance mentions an arbitration clause, but fails to state whether costs and attorney fees would be available to the prevailing party then the default would be the state civil procedure rules as they apply in a regular jury trial.  Also, who must pay for the arbitration?  Is this something the person seeking the justice must pay, or must the defendant pay or must they split the costs?  The costs can run up to many thousands of dollars depending on the complexity of the arbitration.

More and more people are now finding these sneaking clauses in their doctor’s offices.  I had a client who went in for an elective medical procedure (plastic surgery) and noticed this odd statement that she is is giving up her rights to a jury trial if she signed the bottom line.   Other people are now finding this adhesion provision in the contract that they must accept if they want the necessary service.  Some would argue this is merely an insurance requirement by the mal-practice carrier, and it just might be.  Sadly, our own congress set out to limit everyones’ rights by voting for a Federal Arbitration Act that severely limits a person’s contractual rights.  If you have been involved in an accident or are now facing an arbitration Call Benson & Bingham today.

OPINION 36 – 01/08/07 An attorney may ethically borrow funds from a third-party lending institution for the purpose of obtaining funds for use in paying litigation costs. The attorney must agree to be responsible for the repayment of the loan, interest, and associated reasonable fees irrespective of the outcome of the litigation. Repayment of the loan may not be contingent on the success of the litigation for which the loan is obtained.  This now allows small firms to finance larger litigation cases without the need for in house capital.  Is this a correct rule?

It’s about time that Summerlin has a boutique law firm representing its residents! Benson and Bingham now has a state of the art law facility with modern technology including digital clipboards, top notch toshiba scanning and printing, biometrix computers, modern paperless document management software, digital file storage, fully integrated multi-office video interface, and complete digital legal database software.

The new Summerlin Law Office located at 11441 Allerton Park Dr. Las Vegas, NV 89135 gives the client the choice of East or West appointments on Charleston Blvd. Located inside the commercial building at the highly promoted C2 Lofts Residential Condos, the cache of the office is without parallel. Next to the famous Red Rock Mountains and National Park sits the Summerlin Centre C2 Lofts.

For more information on our Summerlin Law Offices contact Benson and Bingham at 702-382-9797 or at 702-684-6900

Dog bites are the most horrific of childhood injuries.  Often they leave scarring and permanent disfigurement, and emotional damages ranging from the victim to the parents. We have handled cases involving facial bites, leg bites, lip lacerations, cheek punctures, to the most severe- an actual nose detachment.  Recently, some facts surrounding dog bites came to light in a recent edition of Otolaryngology. Family pets cause 27 percent of dog bite injuries. The most common sites of bites to the head and neck were the cheeks (34 percent), lips (21 percent), and nose and ears (both 8 percent). Sixty-four percent of the children suffered dog bite wounds in more than one location, and the average wound size was 7 centimeters. As expected, Pit bulls were the breed most commonly involved in attacks. (per the March 2009 issue of Otolaryngology; Head and Neck Surgery). In the United States, dog bites account for about 1 percent of all emergency room visits, including 44,000 cases per year of facial injuries.

Implementation of more accurate and timely reporting of dog bites to local health officials can help educate medical professionals on how to identify dog bite trends and develop prevention strategies, the study  said. They recommended the following items to signs of provocation; adequacy of child supervision; breed and sex of dog; spay-neuter status; history of prior aggression; dog restraint; time of event; patient’s previous history of dog bites; length of dog ownership; location where injury occurred; disposition of dog after the event; and dog’s vaccination history. The Summer can increase the risk as more children are outside, etc.  The personal injury lawyers at Benson and Bingham specialize in dog bite and other animal attack cases.

Nevada and other states have now been granted some help by the US Supreme Court. The Supreme Court recently ordered that Federal Laws do not preempt State’s laws when it comes to personal injury. As the long battle between Federalism and State’s rights continue to brew, the Court reasoned that FDA warning labels do not take precedence over the right to sue in State Court. The Vermont woman sued the pharmaceutical company Wyeth, winning a $7.4 million judgment causing a debate even amongst the US Supreme Court Justices. Even some of the conservatives on the bench bent their normal routines. The justices debated Wyeth’s contention that the lawsuit should be dismissed because federal law preempts such state court claims.

“This is a wonderful result for injury victims–no longer can manufacturers of products hide behind the protectionism of federal agencies like the FDA… ,” stated local personal injury attorney Joseph L. Benson II, Esq. “The need to make new drugs and encourage innovation needs a checks and balances system to ensure what they are pushing on American patients is in fact safe.  We can’t rely solely on the FDA, the greedy pharmaceutical industry, or the money hungry doctors–we need personal injury trial lawyers to constantly threaten the old way of doing business to create safe drugs.  It’s not cutting edge pharmaceuticals if it causes more serious problems then the illness the drug was originally designed for.”

The issue heard was:

“ Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration (“FDA”) pursuant to FDA’s comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.”

See the whole argument here:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-1249.pdf