Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Nevada Supreme Court the Latest to Review State Damages Cap

The Nevada Supreme Court is the latestappellate court of last resort to review its state's legislatively created cap on noneconomic damages in malpractice claims. Many health providers and business organizations are worried that thecourt will overturn the $350,000 cap and will follow the lead of several other state supreme courts who have deemed similar capsunconstitutional, including Illinois and Georgia. Their worries are partly due to the facts of the cases where the cap is being applied, and the inequitiesin the award of damages to severely injured plaintiffs.

In one case, a physician, Dipak Desal, M.D., allegedly caused a hepatitis C outbreak that affected thousands of Nevadans. Another case involves claims by seven family members whose mother was misdiagnosed and then left untreated at a local hospital here she died.

The rub involves the interpretation of the cap as either applying to an "event" of malpractice or to each "claim" for malpractice. The difference in interpretation could mean the difference between $350,000divided amongst all the plaintiffs or multimillion dollar awards for the same claims.

The trial court in one of the cases consolidated for appeal ruled that the cap provides a single cap of $350,000 per event of malpractice no matter how many claims arise out of that event. In another case, a state trial judge went in the opposite direction, ruling that each plaintiff had a separate claim for a single event of malpractice. Such an irreconcilable split of opinion within a state or federal judicial system is a typical reason a state or the federal supreme Court agrees to hear a case by granting certiorari.

Should the Nevada statute be interpreted as applying to an "event" of malpractice and not to individual claims, the attorneys representing the plaintiffs and their families intend to challenge the constitutionality of the cap, by claiming it violates federal and state equal protection guarantees.

Several state supreme courts have concluded that their states' damages caps violate state equal protection guarantees by allowing the legislature to strip the judiciary of its exclusive right to decide cases brought before the courts. Some courts have found that the caps violate state constitutional separation of powers guarantees, while others have found the caps violate the constitutional guarantee of equal access to the courts.

Advocacy groups on both sides of the debate in Nevada are gearing up for a battle of epic proportion in an otherwise conservative state. A vast number of business friendly organizations and medical associations have asked for permission to file "amicus" (friend of the court) briefs to voice their constituents' positions relative to the application and constitutionality of the cap.

Nevada's discreationary appealsprocess is different than in many other states. The Court has agreed to review briefs from the parties and will likely allow the amicus filings. It has not yet agreed, however, that it will hear oral argument from the parties or interested third parties. It appears certain, however, that it will issue a written opinion whether or not oral argument is received. Most state supreme courts require oral argument before a decision is handed down, although many jurists and appellate advocates believe oral argument rarely changes the ultimate direction of the case.

The lawyers at Belsky, Weinberg & Horowitzhave extensive experience with medical malpracticecases in Maryland and have obtained multimillion dollar verdicts and settlements in a wide array of cases. Wehave written extensively about the unfairness and illogic of damages caps andcontinue to advocate against application of caps in favor of a "free market" jury deliberation process where the "people" ultimately decide what damages should be awarded. Judges continue to retain remittitur powers to reduce jury awards that they consider unfair or unconscionable. A challenge to Maryland's damages cap in pending before the Court of Appeals of Maryland, and we will continue to monitor that case and developments nationwide. Please contact the firm for more information.

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