Monday, April 27, 2015
A new case has come out of the Nevada Supreme Court on the scope of treating doctor’s testimony during trial. This new case is FCHI, LLC v. Rodriguez, 130 Nev. Adv. OP 46 (2014). In Rodriguez, Nevada Supreme Court determined that the trial court allowed improper testimony by Rodriguez's treating physicians, concerning the cause of Rodriguez's injuries.
One of Rodriguez's medical providers testified about causation, after reviewing his patient’s other medical records, which consisted of "thousands of pages of documents" from many different doctors. To the extent that this doctor reviewed these documents in the course of providing treatment to Rodriguez, the treating doctor could offer an opinion based on them. However, since the treating doctor only had 21 pages of records in his medical file, the treating doctor was prohibited from opining about these additional medical records.
The Nevada Supreme Court went on to say, that as to Rodriguez's other treating doctors, they could also not testify as to Rodriguez's "mechanism" of injury, nor whether another doctor's treatment of Rodriguez was "causally related" to his initial injury. This was because, they too, had not formed these opinions during their treatment of their patient.
This ruling from the high court was based upon the fact that Rodriguez did not provide a written expert witness report for any of these treating physicians. The Court noted, that [w]hile a treating physician is exempt from the report requirement, this exemption only extends to "opinions [that] were formed during the course of treatment." Goodman v. Staples the Office Superstore, L.L.C., 644 F.3d 817, 826 (9th Cir. 2011); see Rock Bay, L.L.C. v. Eighth Judicial Dist. Court, 129 Nev. , n.3, 298 P.3d 441, 445 n.3 (2013)
So, what does this mean in your personal injury case? Your personal injury attorney will make sure that any medical providers, who will be testifying as to causation, will have either done so in the their medical records or will be designated as expert witnesses, providing accompanying expert reports. This will ensure compliance with the laws in the State of Nevada.
Next time, we will discuss Offers of Judgment in Las Vegas car accident cases.
Tuesday, April 21, 2015
When you are involved in a car accident in Las Vegas, you may have missed work and lost income due to the injuries you sustained in the accident. Sometimes people think that they can just tell the at-fault party’s insurance company the amount of their lost wages. However, the insurance company will not accept this self-reporting of lost income.
Instead, the insurance companies require written documentation of any lost wages sustained by an injured person. The best evidence of lost wages comes from your own human resources department. First, you need your employer’s human resources department to draft a letter on your employer’s letterhead regarding your lost wages. Secondly, this company letter should have your hourly rate of pay, together with the number of hours of work you lost, due to the accident.
It is important that your doctor has given you an ‘off work’ slip, which you took to your employer, documenting that you were under doctor’s orders not to work, during the period of time you are claiming you lost income. Your personal injury attorney will also make sure this doctors ‘off work’ note is included with your request for lost wages. By submitting this complete paperwork package to the insurance company, your accident attorney will make sure you are fully reimbursed for the losses you sustained in the accident.
Next time, we will discuss using treating doctors as testifying experts in Las Vegas personal injury trials.
Monday, April 13, 2015
A little known fact in Nevada, is that when an injured party lives out of state, the at-fault party is allowed to make a demand for “security costs” in Las Vegas personal injury cases. There is no similar law for Nevada residents. The law allowing this is NRS 18.130 and provides in full:
NRS 18.130 When plaintiff may be required to secure costs; affidavits of sureties; dismissal of action if undertaking not filed.
1. When a plaintiff in an action resides out of the State, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant, by the filing and service on plaintiff of a written demand therefor within the time limited for answering the complaint. When so required, all proceedings in the action shall be stayed until an undertaking, executed by two or more persons, be filed with the clerk, to the effect that they will pay such costs and charges as may be awarded against the plaintiff by judgment, or in the progress of the action, not exceeding the sum of $500; or in lieu of such undertaking, the plaintiff may deposit $500, lawful money, with the clerk of the court, subject to the same conditions as required for the undertaking. The plaintiff, upon filing the undertaking or depositing the security, shall notify the defendant of such filing or deposit, and the defendant, after receipt of such notice, shall have 10 days or the period allowed under N.R.C.P. 12(a), whichever is longer, in which to answer or otherwise plead to the complaint.
2. A new or an additional undertaking may be ordered by the court or judge upon proof that the original undertaking is insufficient security, and proceedings in the action stayed until such new or additional undertaking be executed and filed.
3. Each of the sureties on the undertaking mentioned in subsection 1 shall annex to the same an affidavit that the surety is a resident and householder, or freeholder, within the county and is worth double the amount specified in the undertaking, over and above all the surety’s just debts and liabilities, exclusive of property exempt from execution.
4. After the lapse of 30 days from the service of notice that security is required, or of an order for new or additional security, upon proof thereof, and that no undertaking as required has been filed, the court or judge may order the action to be dismissed.
The law limits the initial amount requested, to be $500. Costs such as these are for photocopies, runner services, etc. It is important to note that this law does NOT apply to Nevada residents. It is only for persons who were injured in the state of Nevada, but reside out of state. The only way for a Nevada resident to pay costs, is if they were unsuccessful in their case. For example, if a jury found the injured party responsible for causing the car accident, which resulted in injuries. However, it is important to note that most personal injury claims in Nevada ARE successful.
Next time, we will discuss proving lost wages in Las Vegas personal injury cases.
Monday, April 6, 2015
Everyone knows that they are required to wear their seat belts while driving or riding in a car. However, most people do not know where the rule comes from or what implications it has in a Las Vegas car accident case. Today’s blog discusses what happens when the law on wearing your seat belt is not followed. For ease, personal injury attorneys call it the “Seat belt Rule”. The Seat belt Rule is laid out in Nevada Revised Statutes (“NRS”) §484D.495.
NRS §484D.495 requires adults riding in cars to wear seat belts. However, the law says that a violation of the rule is not a moving traffic violation and may not be considered as negligence in any personal injury action action. Relevant portions of NRS §484D.495 are set forth below:
NRS 484D.495 Safety belts and shoulder harness assembly; requirements for child and other passenger; penalty; exemptions.
2. Any person driving, and any passenger who:
(a) Is 6 years of age or older; or
(b) Weighs more than 60 pounds, regardless of age, who rides in the front or back seat of any vehicle described in subsection 1, having an unladen weight of less than 10,000 pounds, on any highway, road or street in this State shall wear a safety belt if one is available for the seating position of the person or passenger.
4. A violation of subsection 2:
(a) Is not a moving traffic violation under NRS 483.473.
(b) May not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653.
(c) May not be considered as misuse or abuse of a product or as causation in any action brought to recover damages for injury to a person or property resulting from the manufacture, distribution, sale or use of a product.
5. The Department shall exempt those types of motor vehicles or seating positions from the requirements of subsection 1 when compliance would be impractical.
6. The provisions of subsections 2 and 3 do not apply:
(a) To a driver or passenger who possesses a written statement by a physician certifying that the driver or passenger is unable to wear a safety belt for medical or physical reasons;
(b) If the vehicle is not required by federal law to be equipped with safety belts;
(c) To an employee of the United States Postal Service while delivering mail in the rural areas of this State;
(d) If the vehicle is stopping frequently, the speed of that vehicle does not exceed 15 miles per hour between stops and the driver or passenger is frequently leaving the vehicle or delivering property from the vehicle; or
(e) Except as otherwise provided in NRS 484D.500, to a passenger riding in a means of public transportation, including a school bus or emergency vehicle.
So, what does this actually mean in a Las Vegas car accident case? It means that although the law requires you to wear your seat belt, evidence of whether you were wearing your seat belt, in a car crash, does not come into a jury trial. For example, let’s assume you are driving in your car for a short trip to the corner store and do not put on your seat belt. While you are driving, a drunk driver crashes into your car, causing you to be thrown forward. Due to the accident, you sustained serious injuries. Based on the ‘Seat belt Rule’, the drunk driver would NOT be allowed to bring up the fact that you were not wearing your seat belt, to somehow show it was the cause of your injuries.
Next time, we will discuss when the at-fault party makes a demand for “security costs” in Las Vegas personal injury cases.