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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 business law, business litigation, and acting as an Arbitrator and Mediator. Peers have named him an AV-Rated Lawyer, Best Lawyers, a Top 100 Super Lawyers in the Mountain States multiple years, and to the Legal Elite and Top Lawyers lists for many years. Mr. Young has been appointed a part time Judge, a Special Master to the Clark County, Nevada Business Court, as an arbitrator by the Nevada Supreme Court. He has been appointed as an arbitrator or mediator of well over 250 legal disputes from business disputes to personal injury matters. He has been named Best Lawyers for Arbitration. Mr. Young is a respected author of ten books, including A Litigator’s Guide to Federal Evidentiary Objections, A Litigator’s Guide to the Federal Rules of Evidence, and the Federal Court Civil Litigation Checklist.
Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.