In its opinion filed on July 28, 2016, the Supreme Court of the State of Nevada (“Nevada Supreme Court”) held that in a medical malpractice claim, allegations raising the scope of informed consent rather than the absence of consent to a medical procedure, even when pleaded as a battery action, constitute medical malpractice claims for which a medical expert affidavit is required.
The Nevada Supreme Court explained that where a plaintiff claims not to have consented at all to the treatment or procedure performed by a physician or hospital, such an allegation constitutes a battery claim and thus does not invoke NRS 41A.017A’s medical expert affidavit requirement. However, consistent with conclusively obtaining a patient’s consent under NRS 41A.110, where general consent is provided for a particular treatment or procedure, and a question arises regarding whether the scope of that consent was exceeded, an expert medical affidavit is necessary. Because the plaintiff generally consented to the procedure performed, and the operative facts implicate the scope of informed consent, the plaintiff’s battery claim is actually a medical malpractice claim requiring a medical expert affidavit under NRS 41A.071.
Nevada’s Informed Consent Statute
NRS 41A.110 establishes when informed consent is conclusively given by a patient: a licensed physician has conclusively obtained a patient’s consent for a medical procedure if a physician has explained in general terms, without specific details, the procedure to be conducted, inter alia.
The Underlying Facts
The defendant physician had implanted an intrauterine device (“IUD”) in the plaintiff. The surgery took place in the defendant hospital.
Approximately one year later, the defendant physician sent a letter to the plaintiff to advise her that the IUD that was implanted in her was not approved by the Federal Drug Administration (“FDA”) because the plaintiff’s IUD was shipped from Finland to a Canadian pharmacy rather than to a location in the United States (even though the plaintiff’s IUD was identical to FDA-approved IUDs and was manufactured at the same plant in Finland).
The plaintiff subsequently filed her complaint in which she alleged negligence and battery claims against the defendants but the complaint was filed without a supporting medical expert affidavit. The plaintiff’s negligence claim alleged that the defendants had a duty to provide her with care, treatment, medications and medical devices consistent with state and federal law, and the plaintiff’s battery claim alleged that the defendants knew or reasonably should have known that she did not consent to the implantation in her body of the IUD which lacked FDA approval.
The defendants moved to dismiss the plaintiff’s complaint based on NRS 41A.071’s requirement that an expert affidavit be filed with medical malpractice actions. The district court granted the motion to dismiss the negligence claim, finding that an expert affidavit was required, but denied the motion as to the battery claim, finding that it does not appear “beyond a doubt” that the plaintiff needed to include an affidavit with her battery claim. The defendants subsequently petitioned the Nevada Supreme Court for a writ of mandamus directing the district court to dismiss the plaintiff’s battery claim under NRS 41A.071.
The Nevada Supreme Court stated that the plaintiff’s battery allegation presents a question that requires an expert’s opinion regarding the standard of care and the scope of consent with respect to the use of an IUD device supplied by the same manufacturer but shipped in a way that lacked FDA approval. The Nevada Supreme Court therefore issued a writ of mandamus instructing the district court to set aside its earlier order and grant the defendants’ motion to dismiss in its entirety.
Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 132 Nev., Advance Opinion 53.
If a physician failed to obtain your informed consent regarding medical treatment or a medical procedure in Nevada or elsewhere in the United States, you should promptly consult with a medical malpractice lawyer in Nevada or in your state who may investigate your lack of informed consent claim for you and represent you in an informed consent case, if appropriate.
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