Nevada high court ruling clarifies medical malpractice filings
December 30, 2004
In a ruling intended to clarify medical malpractice reforms passed by the Legislature in 2002, the Nevada Supreme Court has reinstated a lawsuit against a Las Vegas physician.
At issue is a requirement that medical malpractice lawsuits include a supporting affidavit from a relevant medical expert. The requirement was intended to replace medical screening panels as the gatekeepers of malpractice lawsuits.
The case involves Alan Borger, who sued Dr. James Lovett alleging he was misdiagnosed and underwent inappropriate surgery in 1999.
The case was initiated before medical malpractice reform legislation took effect, but both parties agreed to apply the new law.
Borger provided an affidavit from a gastroenterology specialist in his claims against Lovett, a general surgeon, and a second physician, Dr. Dipak Desai.
Lovett sought dismissal of the claim because the affidavit did not reflect his general surgery specialty. A Clark County District Court judge threw out the case, finding that Borger did not follow affidavit requirements.
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Borger argued that instead of having his complaint dismissed, he should have been allowed to amend his complaint to include an affidavit from a general surgeon.
The state high court found the expert affidavit provided by Borger met the requirements of the new state law.
It said the affidavit must come from someone practicing in an area “substantially similar” to that in which the defendant is engaged.
The court also ruled that district courts have the authority to allow amended malpractice complaints supported by disputed affidavits “under circumstances where justice so requires.”