Jonathan Barlow, Author at Clear Counsel Law Group

Jonathan Barlow

Clear Counsel Law Group / Jonathan Barlow

702-522-0696

Nevada Supreme Court Outlines Strict Statute of Limitation for Medical Malpractice Actions

How long can you wait before filing a medical malpractice lawsuit?

In November of 2005 a woman in Nevada, Megan Hamilton, underwent a knee surgery. A few weeks later, she told her doctor she was in pain. The doctor placed Ms. Hamilton in the hospital on antibiotics for the infection in her knee which turned out to be very serious. An infectious disease doctor was called to treat Ms. Hamilton’s knee. After leaving the hospital, both the infectious disease doctor and the knee surgeon continued to treat her. In May, 2006 the knee surgeon performed an additional procedure on Ms. Hamilton to remove surgical implants that were harboring the infection. The infection persisted and the doctor continued to treat her throughout August of 2006. In December 2006 and April of 2009, Ms. Hamilton underwent two more surgeries by a different knee surgeon. The last surgery revealed that certain surgical devices from the original surgery still in Ms. Hamilton’s knee continued to harbor the infection the entire time.

In April of 2010 Ms. Hamilton filed a lawsuit against her original doctor claiming that his failure to remove the surgical devices during the 2006 surgery was an act of malpractice falling below the standard of care and causing her damages. More than three years had gone by since the original doctor’s last treatment of Ms. Hamilton.

The doctor filed a motion to dismiss the lawsuit arguing that Ms. Hamilton’s claims were time barred by the three year statute of limitation. Ms. Hamilton argued that the claim was timely because she did not know until the 2009 surgery that the surgical devices from the 2006 surgery were the cause of her injuries.

The Nevada Supreme Court analyzed this issue of first impression to outline when the statute of limitation accrues for a medical malpractice claim. The statute governing the action states that an action for malpractice cannot be commenced more than 3 years after the date of injury or 1 year after the “plaintiff discovers, or through the use of reasonable diligence should have discovered the injury, whichever occurs first.” The question that was to be decided was when the “injury” occurred for purposes of bringing a claim.

The Nevada statute of limitation for medical malpractice is twofold: it requires an injured party to commence a lawsuit within one year of discovery the injury or within three years of the date of injury. The three year limitation period does not require the injured party be aware of the injury, and the Nevada Supreme Court declined to read it that way, despite Hamilton’s urging.

The Nevada Court stated that the three year limitation period was designed to put an end to potential litigation regardless of when the injured party becomes aware of the alleged malpractice. The injured party does not have to be aware of the cause of the injury for the limitation period to begin to run.

In Ms. Hamilton’s case, the Court found that she had an appreciable injury in 2006, so regardless of whether she understood the reason for the injury to be malpractice at that time, the statute of limitations began to run. Accordingly, her lawsuit was dismissed for being filed too late.

Because the Nevada laws are so strict as to when a person can file a medical malpractice action, it’s best to consult an attorney immediately when you notice an appreciable injury so it can be determined in a timely manner whether you have a malpractice claim or not. Our attorneys are Clear Counsel Law Group are knowledgeable about medical malpractice and offer complimentary consultations if you think you have a medical malpractice claim.

Personal Injury - 07/25/2014

Always Carefully Read Your Insurance Policies to Avoid Surprise Exclusions

Often, insurance policies are long and confusing. But, it may be worth the time and effort to read through any policies that you purchase to make sure you clearly understand which items of damage are covered and which are not.

In the recent Nevada Supreme Court case of Century Surety Company v. Casino West, Inc.,[1] a casino and its insurance company had a disagreement about whether the insurance company would cover losses from deaths caused by carbon monoxide poisoning in a hotel.

The insurance company argued that the deaths were not covered because they were caused by “pollution” which was excluded from coverage. The definition of pollution in the insurance policy included all irritants or contaminants, but failed to state whether indoor contaminants such as carbon monoxide were included in the definition. The parties disputed whether the exclusion was intended to apply to only traditional outdoor pollution, or whether it included indoor contaminants and irritants. The insurance company argued that the exclusion was so broadly worded that it excluded any type of contaminant regardless of where it originated. The casino argued that the exclusion only denied coverage for traditional environmental factors. The Court noted that the definition of pollution was broad enough to deny coverage for indoor carbon monoxide poisoning, but that interpretation would be “absurd and contrary to any reasonable policyholder’s expectations.” The Court found that the exclusion was unclear, and that a reasonable person, when reading their policy, would not have been able to determine what was and was not covered.

Accordingly, the Nevada Supreme Court found that the policy exclusions were ambiguous; meaning, they could have been read and interpreted in more than one reasonable way. If an insurance policy is ambiguous, then the Court will interpret the policy in favor of the insured, and not the insurance company. Further, the Court cautioned that all exclusions must be so narrowly tailored to clearly let the insured know exactly what will not be covered. For that reason, the Court interpreted the policy in favor of the casino and against the insurance company, and found that the deaths were covered by the policy because carbon monoxide poisoning could not be excluded.

The issue of policy exclusions can come up in any context; when you have a car accident, when you have water damage in your home, if a guest is injured while visiting you, if your wedding ring is lost, or many other reasons. Your insurance company may seek to unfairly exclude your damages when they should in fact be covered. If you think your insurance company is unfairly denying your coverage, contact our experienced attorneys at Clear Counsel Law Group who can assist you in making sure you are being treated fairly and that you are getting the coverage you paid for.

[1] 130 Nev. Adv. Op. 42, May 29, 2014.

Personal Injury - 06/26/2014

Nevada Insurance Laws do not Always Apply to Accidents Occurring in Nevada

The case of Progressive Gulf Insurance Company v. Faehnrich[1] outlines what might happen when drivers with out of state insurance policies seek to take advantage of advantageous aspects of Nevada’s insurance laws which conflict with their own state’s.

A family obtained an insurance policy in Mississippi, and listed Mississippi as their residence. When the couple divorced, the wife moved to Nevada with the children but maintained her Mississippi insurance policy. Shortly after moving, the mother and two sons were involved in a single car accident, where both sons were injured. The Mississippi policy contained a “household exclusion” which eliminated any coverage that could be awarded to the boys for their claims against their mother.

Nevada insurance policies cannot have a household exclusion, and an exclusion of this nature is said to violate Nevada’s public policy. The issue to be decided was whether the state of Nevada would uphold an exclusion permitted by another state, which in this case caused harm to Nevada residents, when that exclusion is clearly contrary to the policy in Nevada.

The Nevada Supreme Court analyzed all of the relevant facts, including the fact that the car involved in the accident still had Mississippi plates and the mother had a Mississippi driver’s license. Although the Court did not doubt that they intended to become Nevada residents, it appeared that because the car had not yet been registered in Nevada, the Court did not yet feel that the family was subject to Nevada’s mandatory insurance laws at the time of the accident. Accordingly, because the policy was purchased in Mississippi and the risk of an accident was contemplated there, the Court upheld the Mississippi exclusion. As such, the sons could not recover any insurance money.

This case should serve as a cautionary tale to parties driving through Nevada who are involved in accidents or parties who have recently moved to Nevada. The simple fact of being involved in an accident in Nevada will not allow them to take advantage of Nevada’s favorable insurance laws because the laws of the state where their insurance policy was purchased will remain in place.

If you or someone you know is injured in an accident in Nevada, contact our experienced personal injury attorneys at Clear Counsel Law Group to receive the highest possible settlement.

[1] 2014 WL 1258808, published citation forthcoming.

Personal Injury - 05/15/2014

Does an Insurance Company Have to Produce a Signed Rejection to Deny Medical Payments Benefits?

Medical payments coverage is a component of car insurance that provides coverage for medical expenses regardless of who was at fault for an accident. In Nevada, insurance companies are required to offer their insureds medical payments coverage, and if they do not offer this coverage, they must pay $1,000.00 toward the medical expenses of their insureds if the need arises.

Nevada personal injury attorneys had often understood this requirement to mean that if an insurance company could not produce a signed rejection of medical payments benefits, that the $1,000.00 payment was automatically owed. However, the recent Nevada Supreme Court decision of Wingo v. GEICO,[1] made it clear that as long as an insurer offers medical payments coverage, no production of a signed rejection is necessary.

In Wingo, the Plaintiffs were insured by GEICO. When they became injured in an accident, GEICO denied their medical payments coverage by claiming that they had not opted to purchase it. The Plaintiffs sued GEICO claiming that they were owed the $1,000.00 payment because GEICO did not produce written proof that they rejected the medical payments coverage. The Court found in favor of GEICO by relying on the plain language of NRS 687B.145(3) which requires only that the insurer must offer medical payments coverage or pay $1,000.00 but has no requirement whatsoever that an insurer must provide written proof of the rejection.

The Court compared this statute with NRS 687B.145(2) which relates to underinsured motorist coverage. While the requirement to offer coverage is the same, NRS 687B.145(2) also has a companion statute, NRS 690B.020 which requires an insurer to offer underinsured motorist coverage in an amount equal to the insured’s liability coverage unless the insurer can provide a signed rejection of the coverage. The Court noted that because NRS 690 clearly had a written rejection requirement, the legislature would have certainly included one in NRS 687B if they had intended for the requirement to exist.

The Court refused to imply a written rejection requirement that clearly did not exist in the statute. For that reason, the Plaintiffs’ case was dismissed.

Dealing with insurance companies and the various types of insurance coverage can be extremely difficult. If you or someone you know has been involved in an accident, let our experienced personal injury attorneys at Clear Counsel Law Group assist you through every step of the claims process and help you get the settlement you deserve.

If you have additional questions about your own situation dealing with medical payments after an accident, or dealing with insurance companies, we invite you to speak with one of our attorneys for free.

[1] 130 Nev. Adv. Op. 20, March 27, 2014.

Personal Injury - 04/21/2014

The Separation of an Heir's and an Estate's Claims for Wrongful Death

When a loved one is killed by the fault of another, a claim for wrongful death may arise. Nevada Revised Statute 41.085 splits wrongful death claims in two subparts; claims by the heirs and claims by the Estate. Generally, the heirs can recover damages for grief, sorrow, loss of support, companionship, and the deceased’s pain and suffering whereas the Estate can recover damages for medical expenses, funeral expenses, and any other penalties the deceased could have recovered to pay his debts.

Although these claims are technically separate, a suit for wrongful death should be brought by the heirs and the Estate at the same time, because if claims are alleged at separate time, the second set of claims might be barred. In Alcantara v. Wal-Mart, a man was fatally assaulted in a Wal-Mart parking lot.[1] The deceased’s Estate and some of the heirs sued Wal-Mart for negligence and a jury found Walmart was not negligent. After the suit ended, Alcantara brought a second suit against Wal-Mart as an heir. Wal-Mart moved to dismiss the second suit arguing claim preclusion and issue preclusion.

Claim Preclusion

Generally, claim preclusion bars lawsuits where a final judgment has been entered in a prior lawsuit which involved the same parties and the same claims that could have been brought in the first place. The Supreme Court found that claim preclusion did not bar Alcantara’s suit because her claims were specific and necessarily different from the prior claims brought. However, this finding did not end the inquiry because Wal-Mart was also moving to dismiss based on issue preclusion.

Issue Preclusion

Issue preclusion prevents a second suit when the second suit brings identical issues to the first case, the first case reached a ruling on the merits, the party to the second suit was in privity with the first, and the issues were actually litigated. The Nevada Supreme Court found that all four elements were met and the suit was barred by issue preclusion. The issues were identical, a final ruling was reached, and the issues were actually litigated. The only factor that required great consideration was whether Alcantara was in privity with the Estate and heirs from the first suit. Privity exists if someone’s interests are adequately represented by the first suit. In this case, the Court found that Alcantara’s interests were adequately represented by the first suit because as a beneficiary of the Estate, the Estate was acting in her best interests and on her behalf. Accordingly, Alcantara’s entire lawsuit was dismissed.

The cautionary tale of Alcantara’s situation is that it is best for all heirs and the Estate to bring their wrongful death claims together, so they don’t risk a later suit being barred. Alcantara missed out on the opportunity to make her own claims against Wal-Mart because she had not joined in the first suit. If she had the opportunity to bring her own claims, she may have been able to present a case for loss of companionship, grief and sorrow, or other damages that were specific to her. The opportunity to do that was forever lost.

If you are faced with the loss of a loved one possibly due to the fault of another, give our experienced probate attorneys at Clear Counsel Law Group a call to set up a consultation.

[1] 130 Nev. Adv. Op. 28, April 3, 2014.

Personal Injury / Probate - 04/21/2014

Probate in Nevada

When dealing with the unfortunate loss of a loved one, family members are often faced with the daunting task of locating and deciding what to do with the property of the deceased. There may be homes to be sold, creditors to pay, and money to be distributed. This is known as the probate process which can be an extremely complicated and frustrating task. The good news is that an experienced attorney can make the process simple and easy for you.

Types of Probate Administrations in Nevada

There are four different types of probate administrations in Nevada, depending on the value of the decedent’s assets. In each case, a personal representative will be appointed and that person will be in charge of collecting all of the assets and making sure that they are passed to their rightful heir. In certain cases, the personal representative will also be charged with making sure that creditors of the decedent are paid.

First, if the person who passed away had less than $20,000.00 in assets and no homes or land, then the probate process is called an “Affidavit of Entitlement.” This is a streamlined process which a knowledgeable attorney can complete for you fairly quickly. The Affidavit of Entitlement process cannot be started until forty days after death.

If you don’t know what assets your loved one had or you don’t know the value, then a “Special Administration” petition can be filed with the Court.

Second, if the person who passed away had less than $100,000.00 in assets, a “Set Aside” proceeding can be used. The value of the estate can include personal property, homes, or land. This process can be started 30 days after death. Minimal court involvement is necessary for this process.

Third, if the person who passed away had assets valued at less than $200,000.00 then a “Summary Administration” will be needed. This process is significantly more complicated than the first two and requires following procedures for giving notice to creditors of the decedent and paying claims that meet certain criteria.

Fourth, if the person who passed away had assets over $200,000.00 then a “General Administration” will be conducted. Because of the large amount of money involved, this process is the most complicated and involves a significant amount of court supervision. In certain cases, the court requires that the personal representative buy a bond to ensure that they don’t mishandle assets. However, if you hire a reputable law firm, the bond requirement is often waived.

In each case, the personal representative will be held responsible for payment of all damages caused by their mishandling of the estate’s property. For that reason, it is extremely important to make sure that you hire an attorney who has handled many probate matters and will carefully guide you through each step. A skilled attorney will also assist the representative in transferring titles of property, including homes and cars, to their rightful owner. If the title to a home or car is not properly transferred into the beneficiary’s name, it is still owned by the decedent and will be susceptible to foreclosure or repossession and there is nothing the beneficiary will be able to do about it. But, if the title is properly transferred, then the beneficiary will have authority to deal with banks and lenders because they are the properly documented owner by inheritance.

What if I don't know the value of assets?

If you don’t know what assets your loved one had or you don’t know the value, then a “Special Administration” petition can be filed with the Court. This process gives a personal representative authority to investigate into the decedent’s property to determine what property they owned and what it was worth. After the Special Administration is complete, the probate can be transferred into one of the four types named above, and the assets can then be distributed.

The attorneys at Clear Counsel Law Group handle many probate matters in all different categories. Clear Counsel Law Group has the knowledge, expertise, and experience to guide you through the probate process as quickly and painlessly as possible. If you would like to know more about probate, please visit our Probate Section.

Probate - 02/10/2014

New Years Resolution? How about a Will or Trust?

A new year! It's that time of year when people start thinking about how to improve the next 365 days. Weight loss goals are not uncommon resolutions, though we often fail to last more than a few weeks. Other common resolutions include travel, paying off debts, or spending more time with family. Here's an option you may not have considered, though:

How about a will or a trust?

A will or a trust can be a long-time positive for your family, and, unlike exercise, it doesn't need to be difficult. Wills and trusts direct how your assets are to be distributed after death. This is an important task to take care of, because if you do not leave instructions the courts will decide what happens to your estate.

What percent of people in the USA have a will? 54%
Percentage of people age 65+ who have a will: Only 36%
What percent of women in the USA have wills? 34%

NOLO Survey

Even though this is an important part of good financial management, a recent survey by legal web site, NOLO, found that only 54% of people have bothered to even make a will. The main reason why they haven't? Just too busy.

We encourage you to re-think this important step in your estate planning. A will or trust can help your family a lot. For example, a will can:

Assign who gets what, helping head off disputes and bad feelings.
Puts somebody you trust in charge as executor.
Names a guardian for any children under 18.

These are important things to do, and can make a lifetime of difference to a family in case of an unexpected death.

Making a will is easier than you think.

Creating a will is one of the most simple legal matters you can do. In fact, it's so easy that, if your estate is fairly simple and your wishes straightforward, you can make your own will.

If you write your will in your own handwriting and include a date and signature, it's called a "holographic will." In the state of Nevada, such a will is legal and binding. If you can't do it in your own handwriting, (for example, if you wanted to have your will typewritten, as most people do) you must have two witnesses also sign the document. (Note: those two witnesses must be "disinterested," meaning they can have no benefit or inheritance coming from the will.)

For very simple situations such as wishing to give all the assets to a single family member, a do-it-yourself will might be a great fit.

Getting a trust is easy and important.

For more complicated situations, it's important to get a trust made. For example, if you have a beneficiary but you want to only give the assets over time, or hold the assets for a certain purpose such as education, it's essential that you set up a trust.

A trust gives you much greater control over what happens to your estate. It can deal with much more complicated legal challenges, and can help avoid inheritance taxes. However, setting up a trust will almost certainly involve sitting down with an estate planning lawyer. You don't want to leave something so important to chance.

An estate planning lawyer can help you analyze your needs and goals, and figure out what kind of trust is going to be the very best fit for your situation. Once the trust is set up, it doesn't take much to keep it updated as circumstances change in the future. The time it takes to meet with a lawyer will pay off in the long run in the time it saves and the confusion it prevents.

Go ahead and start that new exercise program. It's important to take care of your future health. But take care of the future of your estate, too.

Estate Planning - 01/06/2014

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