By

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.

The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Please see http://nevadalaw.info/disclaimer

 

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.