This is a press release submitted to the Las Vegas Sun. It has not been verified or edited by the Sun.
NRS 41A.035 Reduces 3.3 Million verdict to 350,000 Unconstitutional
Published on Wed, Oct 24, 2012 (9:26 a.m.)Las Vegas, Nevada – October 24th, 2012
Hard work and dedication by Christensen Law recently paid off for one of our clients in a $4.8 million jury verdict in a medical malpractice case. The case arose out of the prenatal care and induced delivery of a baby girl at a local hospital. The baby’s mother, who had undergone a traumatic delivery with her first child, employed the same doctor for her subsequent prenatal care, trusting in his experience from the first difficult delivery. This second pregnancy evidenced a variety of risk factors demonstrating that the baby would be very large and that the mother may again have a difficult delivery. Unfortunately, the defendant doctor missed and ignored the risk factors and dismissed the mother’s concerns, promising that the baby would be fine and that there was no reason for concern. This ultimately led to a poorly planned and executed delivery, which resulted in a baby girl with a severe brachial plexus injury. An injury of this type affects the child’s nerves and bone structure of either arm, and in this child’s case will limit the use of her right arm for the remainder of her life. The Plaintiff’s witnesses testified that the delivery was difficult, that documentation was poor throughout the pregnancy and delivery, and that the care preceding delivery was unresponsive to the various risk factors and concerns expressed by the baby’s mother. The Defendant’s experts spent time arguing that a caesarean section was not required and that the child was not really significantly injured. When all was said and done, though, it was clear that the jury was disgusted with the Defendant’s actions and his failures in breaching the standard of care to which doctors are held, and they awarded the Plaintiff $4.8 million in total damages, including $3.3 million for past and future pain and suffering.
There is a limit on recovery, however, pursuant to NRS 41A.035: “In an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages awarded in such an action must not exceed $350,000.” This means that the $3.3 million that the jury awarded the Plaintiff for past and future pain and suffering will likely be arbitrarily reduced to $350,000.00.
The Defendant filed numerous post-trial motions, including a motion for a new trial, a motion to reduce the judgment to the statutory amount, $350,000, and a motion for judgment notwithstanding the verdict. These were heard on the October 22, 2012. The Judge reduced the award in accordance with NRS 41A.035, stating that he is bound by the statute and cannot pass on its constitutionality.
It is our position that NRS 41A.035, which limits the amount of noneconomic damages that a Plaintiff can receive, is unconstitutional. Christensen Law intends to appeal this issue to the Nevada Supreme Court and argue this issue. Under the Constitution of the United States, people who are injured as the result of another’s wrongdoing have the right to seek full compensation for the damages they sustain, through the legal system. They also have a right to have the issue heard and decided by a jury of their peers. NRS 41A.035 thwarts these rights by arbitrarily protecting a specific group of people—namely, health care providers—from being held responsible for compensating people that are injured as a result of their wrongdoing. It further thwarts these rights by arbitrarily setting aside the determination of the jury, who has the duty to consider the evidence and make a determination as to what compensation the Plaintiff should receive from the Defendant. It is our hope that this case will provide a vehicle for change.
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