Nevada high court weighs in on part of tort reform law

The justices addressed the issue of which doctors can sign an affidavit of merit supporting a lawsuit.

By Tanya Albert amednews correspondent — Posted Jan. 24, 2005

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The Nevada Supreme Court recently issued a ruling shedding a narrow ray of light on a law aimed at weeding out frivolous medical malpractice lawsuits.

The 2002 law requires a plaintiff to attach to his or her lawsuit an affidavit of merit from a physician stating that there is reason to believe that malpractice occurred. The doctor must practice in an area that is "substantially similar to the type of practice" that the defendant doctor was engaged in when the alleged malpractice took place.

The Nevada high court ruled that in some situations plaintiffs can amend their complaints if their cases are supported by disputed affidavits of merit.

The decision appears to be a narrow one, said Lawrence P. Matheis, executive director of the Nevada State Medical Assn. At press time, the association was reviewing the case in depth to see if there were other areas that the ruling might impact.

The court said the law is clear when it comes to what should happen to a lawsuit when there is no affidavit attached: The suit must be tossed out of court.

But "a different problem of interpretation will arise in the event of a legitimate dispute over whether a filed affidavit of merit complies with the statute," the court stated.

On that issue, the court said the law doesn't explicitly prevent amendments. Laws passed in Nevada cannot unduly hurt the court's ability to manage litigation, the justices added.

"We conclude that a district court ... may grant leave to amend malpractice complaints supported by disputed affidavits under circumstances where justice so requires," the opinion reads.

The Supreme Court in Borger v. The Eighth Judicial District Court of the State of Nevada et al. also addressed the issue of when a physician signing an affidavit of merit is working in an area of medicine "substantially similar" to the type of medicine that a defendant physician is practicing.

A general surgeon named in the case, James V. Lovett, MD, asked the court to dismiss the lawsuit against him because a gastroenterologist, rather than a general surgeon, signed the affidavit.

While a lower court agreed with Dr. Lovett's argument, the Nevada Supreme Court did not.

The high court sided with the patient, Alan M. Borger. Borger argued that the expert witness who signed the affidavit practiced a discipline that was substantially similar to Dr. Lovett's practice. Dr. Lovett treated Borger for recurrent lower digestive tract difficulties, according to court records.

"The statute does not require that the affiant practice in the same area of medicine as the defendant," the court said. "Rather, it requires that the affiant practice in an area 'substantially similar.' "

The court said the gastroenterologist satisfied that requirement in this case.

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External links

Nevada Supreme Court ruling in Alan M. Borger v. the Eighth Judicial District Court of the State of Nevada et al., Dec. 29, 2004 (link)

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