Thursday, December 30, 2004
Copyright © Las Vegas Review-Journal
Court revives lawsuit against LV doctor
Medical malpractice reform prompts justices to review allegations of inappropriate surgery in 1999
By SEAN WHALEY
REVIEW-JOURNAL CAPITAL BUREAU
CARSON CITY -- In a ruling intended to clarify part of the medical malpractice reforms passed by the Legislature in 2002, the Nevada Supreme Court on Wednesday reinstated a lawsuit against a Las Vegas physician.
At issue is the new law's requirement that those filing medical malpractice lawsuits submit an affidavit supporting their allegations from a medical expert who practices in an area similar to that involved in the case at hand.
The requirement was established to replace the use of medical screening panels, previously used to determine if malpractice lawsuits were justified.
The case involves Alan Borger, who sued Dr. James Lovett following surgery in 1999. Borger claims his illness was misdiagnosed, resulting in an inappropriate surgery.
The case was initiated before the medical malpractice reform legislation took effect, but the parties in the lawsuit agreed the new law's requirements would apply.
Borger provided an affidavit from a physician specializing in gastroenterology in his claims against Lovett, a general surgeon, and a second physician, Dr. Dipak Desai. But Lovett said the case against him should be dismissed because the affidavit did not reflect his speciality of general surgery.
Borger argued the affidavit was proper, but that he should have been allowed to amend it to include an affidavit from a general surgeon rather than have his complaint dismissed.
District Court dismissed the case against Lovett, finding that Berger did not follow the affidavit requirements.
On appeal, the Supreme Court reinstated the action, finding that the expert affidavit provided by Borger met the requirements of the new state law. The court said the affidavit must come from someone practicing in an area "substantially similar" to that in which the defendant is engaged and that gave rise to the malpractice lawsuit.
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."
