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REBUTTABLE PRESUMPTION OF MEDICAL NEGLIGENCE; JURY QUESTION AS TO BASIC FACTS AND 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 you find by a preponderance of the evidence 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;] then the rebuttable presumption operates to shift to the defendant[s] the burden of proving, by a preponderance of the evidence, that the [personal injury] [death] was not caused by negligence.

If, on the other hand, you do not find by a preponderance of the evidence 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;] then the burden of proving, by preponderance of the evidence consisting of [expert medical testimony,] [material from recognized medical texts or treatises,] [or] [the regulations of the licensed health care facility wherein the alleged negligence, occurred,] that the [personal injury] [death] was caused by negligence remains with the plaintiff.

NEV. J.I. 6.17

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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