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REBUTTABLE PRESUMPTION OF MEDICAL NEGLIGENCE; BASIC FACTS ESTABLISHED AS A MATTER OF LAW; JURY QUESTION AS TO PRESUMED FACT

The law provides for a rebuttable presumption that a [personal injury] [death] was caused by negligence where the [personal injury] [death] occurred under [any one or more of] the following circumstances:

[A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;]

[An explosion or fire originating in a substance used in treatment occurred in the course of treatment;]

[An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;]

[An injury was suffered during the course of treatment to a part of the body not directly involved in such treatment or proximate thereto;] [or]

[A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient’s body].

In this action, it has been established that:

[A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;]

[An explosion or fire originating in a substance used in treatment occurred in the course of treatment;]

[An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;]

[An injury was suffered during the course of treatment to a part of the body not directly involved in such treatment or proximate thereto;] [or]

[A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient’s body].

The effect of this rebuttable presumption is that it places upon the defendant[s] the burden of proving, by a preponderance of the evidence, that the [personal injury] [death] was not caused by negligence.

NEV. J.I. 6.16

NRS 41A.100

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

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