By: Merielle Enriquez
In a personal injury action, whether a Plaintiff has pre-existing injuries and whether a Plaintiff alleges the need for future surgical intervention is relevant to the issue of medical damages in Nevada.
In order to minimize liability exposure for a Defendant, it is important to conduct focused and aggressive discovery on a Plaintiff's prior medical history to determine if the Plaintiff has any pre-existing injuries. A pre-existing condition is a medical or physical condition that a personal injury plaintiff had prior to the subject accident, related to current claims. See e.g. Grover C. Dils Medical Center v. Menditto, (2005) 121 Nev. 278. A person who has a condition or disability at the time of an injury is not entitled to recover the damages therefor. Nevada Jury Instructions - Civil 2011 Ed. Inst. 5PID.3. However, a plaintiff is entitled to recover damages for any aggravation of such pre-existing condition or disability proximately resulting from the accident. Id.
In defense of a personal injury claim, it is crucial to obtain all of the medical records of a Plaintiff that pre-date the accident for a minimum of five years. The prior medical records should evidence whether or not Plaintiff suffers from a pre-existing condition, and should also provide a history of any past surgical procedures performed. Often, Plaintiff's attorney will not voluntarily provide this information. As such, prior medical record information should be early on in discovery via interrogatories and requests for production. Defense counsel should also obtain a HIPAA compliant medical records release, and subpoena all prior medical records from any of the Plaintiff's medical providers.
Another common scenario a Defendant faces is the Plaintiff's allegation that he or she will require future surgery as a direct result of the alleged accident injuries. In Nevada, in order for a Plaintiff to recover damages for future surgery, a medical expert must testify that the surgery is needed to a "reasonable degree of medical probability." Banks v. Sunrise Hospital, (2004) 120 Nev. 822.
If a medical expert testifies that one will need future surgery to a reasonable degree of medical probability, then recovery for the costs of the surgery can be had as part of future medical expenses and future pain and suffering.
Therefore, in addition to determining whether a Plaintiff has any pre-existing injuries, the Defense must also conduct targeted, defense-oriented discovery regarding future surgery allegations. If the accident occurred two years prior and the Plaintiff still has not undergone any surgery, the Plaintiff should be cross-examined on this, as the surgery allegations are more credible for Plaintiffs who have actually undergone surgery shortly after incurring accident injuries. The Plaintiff's reported pain scores on their medical records should be analyzed and used during cross-examination as well. If the Plaintiff's medical history reports relatively low pain scores of 3-4 out of 10, this too can be used in Plaintiff's cross-examination. Likewise, any treating physician who recommends surgery should also be cross-examined as to whether there are more conservative treatment options available and whether Plaintiff has actually undergone more conservative treatment prior to opting for surgery.
In summary, minimizing exposure to past and future medical expenses will often translate into lower exposure to lost wage, and pain and suffering allegations. In the case of both pre-existing injury and future surgery allegations, retaining a medical expert to conduct a records review as well as an Independent Medical Examination will also serve to bolster the defense.
Merielle Enriquez is an Associate with Kring & Chung, LLP's Las Vegas, NV office. She can be contacted at (702) 260-9500 or firstname.lastname@example.org