Vegas Personal Injury Law Blog

It is very difficult to be in a rational state of mind following a motor vehicle accident. The first question that may come into your mind following an auto accident is, “Do I have to stop”? The law says that you must stop after an accident. It doesn’t matter if the auto accident involves a pedestrian, a moving car, a parked car or other real or personal property. If you drive away from an accident you can be charged with “hit-and-run”. Even if the accident is not your fault, “hit-and-run” penalties are severe. You may be stuck with a large fine or be picked up and taken to jail. You could even lose your driver’s license. If you hit a parked car, try to find the owner. If you cannot locate the owner, you may only drive away after leaving behind your name, address and an explanation of the accident. You must also notify the local police either by telephone or in person.

The most important thing to do following a motor vehicle accident is to keep track of the facts.

You should always keep a note pad and a pen in your vehicle. It is extremely helpful to have either a cell phone or a disposable camera to take pictures following an accident.

At the accident scene, before you even get out of the vehicle, try to write down the license plate, year, make and model of the other vehicle or vehicles involved in the accident. After an accident the adverse vehicle may leave the scene, especially in situations where adverse driver has a bench warrant or has no insurance or no driver’s license.

Before the police arrive at the accident scene try to obtain and exchange information with all other drivers. Obtain their name, address, home, work and cell phone numbers, license plate number and insurance company information, including their policy number. Keep a record of all names, addresses, phone numbers and e-mail addresses for any witnesses to the accident.

Take photographs of the damage to the vehicles involved in the accident and also take photographs of the other drivers. They may try to leave the scene without providing you with their information. It is also helpful to have photographs of the accident scene in general. Typically, it takes law enforcement between our 15 minutes to an hour to arrive at the accident scene.

After the police arrive at the accident scene they will ask you to fill out a written statement. While you are waiting for the police to arrive you can start preparing your statement.

Eventually the police will ask you about how the accident happened. They will also ask you if you need medical attention. While you’re at the accident scene your adrenaline will be pumping and you may not experience any symptoms of a neck or back injury. These symptoms may not appear until hours after the accident and often appear after you have left the accident scene. If you have any sign of trauma after the accident, you should relate that to the investigating officer. If you decline medical attention, advise the officer that you will seek medical attention after you leave the scene of the accident with your private physician, quick care facility or your local hospital. If you have symptoms of dizziness, numbness, headache, disorientation or even minor neck and back pain, this should be reported to the investigating officer. If any part of your body made contact with the interior of your vehicle report that to your investigating officer.

In most cases the investigating officer will provide you with either a driver exchange card or a computer printout with basic information concerning the parties and vehicles involved in the accident. Always get the event number before you leave the scene from the officer so that you can obtain a copy of the traffic accident report.

You will either leave the accident scene by ambulance, by a ride in the tow truck, by a ride from a friend or relative, or you will drive your own vehicle away from the accident scene.

At some point after you leave the accident scene you must contact your own insurance company to report the accident.

If your injuries are severe or you have a concern about your health, go to a hospital.

If you have any signs of injury that require medical attention, this should be your first priority after being involved in an accident. See your family doctor, a quick care facility or chiropractor, if your injuries are not severe enough for you to go to the emergency room.

If you go to a hospital, you will need to know that you will probably incur three bills. The first is the hospital bill itself. The second is the bill from the emergency-room doctor, and the third is a bill from the radiologist who reads your x-rays. While you’re at the hospital you should try to obtain information concerning the identity of the healthcare providers related to these three bills. Oftentimes, it is difficult to obtain copies of the bills related to the emergency-room doctor and radiologist, because these bills most often are submitted to health insurance and the injured party never receives a copy. It is important for you to tell your attorney that he had x-rays at the hospital, so that he can order the radiologist’s bill.

If your symptoms continue, you should seek follow-up medical care. This may involve going to a chiropractor, doctor of osteopathy or medical doctor who is familiar with personal injury claims. If you go to a general practitioner who is not experienced in personal injury claims, the record keeping and the ability of the healthcare provider’s office to fully address your personal injury claim may not be sufficient.

If you lose time from work, keep a log of the time that you’ve taken off work as a result of the accident. If you use sick days, or if you use PTO or FMLA, this should be documented. Always require your treating physician to provide you with a doctor’s excuse, whether or not one is required by your employer. In the event that you have an inability to function properly at work due to your injuries, this should be documented by your supervisor. Also, a letter from your employer verifying and income loss, use of sick days, use of paid time off, or use of FMLA is extremely important to document your wage loss claim.

If you are a student, and you miss time from school, document missed school time and your inability to perform your schoolwork.

If you have visible injuries continue to take photographs of your injuries periodically and document the date of each photograph.

Keep a daily log of your pain, discomfort, emotional distress, fatigue, tenderness and inconveniences. Write down your feelings and experiences on a day-to-day basis documenting how the injuries have interfered with your daily life and relationships. This information should also be reported to your health care providers so that it can get into your medical records. See my Blog Post, “How Will Your Auto Accident Claim Be Evaluated?”

In the event that your vehicle is driveable, there is no rush in getting your vehicle repaired. Most people are anxious about getting their vehicle quickly repaired after an accident. If your vehicle is driveable, try to have the adverse driver’s insurance carrier take care of the property damage. This way the property damage will not be subjected to the deductible of your own automobile collision coverage. Ask the adverse insurance company if they utilize preferred shops? In the event that your vehicle is repaired at a preferred shop, the insurance company is on hook for any delay in the repair of your vehicle. In the event that your vehicle takes longer than expected to be repaired, the insurance company has to eat the delay by paying for your rental car during the entire time that your vehicle is being repaired. If you choose your own repair shop, the adverse insurance company will most likely only pay you for the reasonable amount of time that it should take to have your vehicle repaired. Believe me when I say that these delay issues are common problems on personal injury claims.

It is important to obtain a copy of the property damage estimate. In event they have a preliminary estimate from an insurance company and you take the vehicle to a repair facility, that repair facility will determine whether or not they can repair the vehicle for the amount of the preliminary estimate. If they can not, the proper procedure is that the repair facility will contact the adverse carrier to have a follow-up appraisal of the vehicle, especially after the vehicle is torn down and exterior parts are removed to reveal underlying damage.

Keep track of all of your out-of-pocket expenses for things such as ice packs, heating pads, bandages based bandages, childcare expenses, cancellation of vacations or loss of pre-paid trips, replacement of clothing, taxi service, or payments to others for transportation.

In my 25 years of experience as a personal injury attorney, I have dealt with many of the healthcare facilities in the Las Vegas area, who treat patients that have been involved in accident cases.  

Some physicians that deal with personal injury cases on a regular basis are aware of the following office procedures that can be extremely helpful on personal injury claims and lawsuits:

1. A Clean Bill.

It is extremely helpful for a personal injury attorney to have a clean bill.  What this means is that the bill contains only the dates and amounts of all charges by the healthcare provider.  A clean bill does not contain any information on health insurance payments and also contains a figure which represents total charges for services rendered by the provider for the accident.  In the event that the attorney receives a bill with insurance payment information, this devalues a claim because the adverse carrier knows that first party insurance has paid all or some of the patient’s bill.  If an adverse adjuster knows that bills are paid by first party insurance, such as auto med pay with no right of subrogation, he will offer a lesser amount to settle the claim.  Also, an attorney cannot file any documents with the Court that contain a patient’s social security number.  This data must be redacted. Don’t include the patient’s social security number on your bill.   Bills that are submitted to the Court as evidence in a personal injury case must also be redacted for insurance information.

Health insurance claim form(s) are particularly problematic for personal injury attorneys because the insurance information is replete throughout the form and redaction of insurance information is a very time consuming process.

For these reasons, personal injury attorneys love clean bills.

2. Organization of a personal injury medical file.

For reasons stated in No. 1 above, all information regarding insurance should be placed in one section of a medical file.  Once again, the reason for this is because all insurance information must be redacted from medical records which are the subject of a trial.  If all of the insurance information is kept in a separate section of a file and segregated from the medical records, this is very helpful to the personal injury attorney as far as redactation of records is concerned.  Intake forms often include insurance information mixed in with patient history and symptomology.  Redactation is a simple process when all insurance information is segregated.  We can just eliminate those pages from our trial exhibits.

3. Medical necessity.

In order for medical bills to be admitted into evidence, there must be a statement by the healthcare provider concerning the medical necessity of the treatment.  In other words, the treatment must be medically necessary for the treatment of injuries resulting from a particular accident.  Generally speaking, this statement of medical necessity is very helpful to an attorney during an arbitration or a short trial.  In these proceedings, it is not necessary for the doctor to actually appear to give testimony in the event that his medical records contain a statement of medical necessity and other evidentiary requirements.  The doctor in his discharge report or in his medical records can simply state that, “In my opinion, all treatment rendered to the patient (from first date of treatment to last date of treatment) was medically necessary to treat injuries that the patient received in her accident of (date of accident).

4. Medical causation.

In order for a Plaintiff to prevail in a personal injury case, medical evidence must contain a statement by a physician concerning causation.  That statement can be, “It is my opinion to a reasonable degree of medical probability the injuries that I diagnosed and treated the patient for were caused by the accident of (date of accident).”  The healthcare provider can simply include such a statement in his records or narrative reports.
5. Reasonable and Customary Charges.
This statement is extremely helpful on mediation, arbitration and short trial cases.  

In order to admit a medical bill into evidence, the attorney must lay a foundation that the charges for the medical treatment were reasonable in amount and are customary charges for same or similar services in the Las Vegas area.

The physician in his narrative or medical records can once again simply state that, “I have reviewed the billings for this patient.  In my opinion, the charges for services rendered by my facility were reasonable in amount and customary charges for the Las Vegas medical community.”  Once again, this information will eliminate the need to have the medical provider actually testify in an arbitration or short trial proceeding.  This is especially important if there are numerous medical providers.  Attorneys can’t afford to bring all providers to a short trial.  Even if you win, you can only receive $500.00 per expert.

In the event that the healthcare provider does not provide information concerning medical necessity, causation and reasonable and customary charges, the attorney can provide the healthcare provide with an affidavit that he can sign which can be used in mediation, arbitration and the short trial program, so that the medical bills and records of the provider meet legal foundational requirements for admissibility.

6. Depositions.

The healthcare provider should be prepared during deposition to testify concerning medical necessity, causation and reasonable and customary charges.  Oftentimes, healthcare providers during deposition have absolutely no idea of what their facility charged the patient.  They are ill-prepared to testify on matters of reasonable and customary charges.  Many physicians have never seen their client’s bill.  In preparation for a deposition, the healthcare provider should review his bill and the charges and be prepared to testify concerning reasonable and customary charges.  The healthcare provider should also understand and be prepared to testify concerning opinions on medical necessity and causation.  Most healthcare providers give adequate testimony concerning their records, but are very weak when it comes to their testimony in these three areas.

7. Timely Production of Bills and Records.

Most lay persons would be surprised to know how long it takes to receive medical bills and records from some healthcare facilities.  Sometimes, it takes months to receive bills and records.  Healthcare providers can charge .60¢ per page for their records.  We find that most healthcare providers are unaware of delays by their office concerning requests for bills and records.  The faster that the attorney can receive the bills and records, the more quickly he can settle the client’s personal injury claim, and pay the client’s healthcare providers for services rendered.  

We find that staff turnover is largely responsible for delays on requests for bills and records.  We have the most problems with outside billing companies that provide billing services for multiple providers.  Outside billing services are a nightmare to work with.  They are hard to reach and are more non-responsive to attorney office contact. 

When we attempt to obtain a complete copy of the entire medical file during a deposition, we are often told by the healthcare provider that they can’t provide a copy of the bills and records.  This must be done by advance notice.

With litigation, time limitations are always involved.  Therefore, if a provider delays in providing the attorney with bills and records, this may contribute to sanctions on the part of the attorney, or dismissal of the case, if records cannot be provided in a timely manner.  If the patient is still treating as his case approaches a trial date, any new records and bills must be produced prior to the discovery cut-off date, which is usually 45 days prior to trial.

8. Balances.

Information concerning total charges and balances is very important to the personal injury attorney.  One would think that an attorney just makes a call to a healthcare provider and he can immediately obtain information on total charges, and any balance that is due and owing, after payment by insurance, and after application of provider discounts.  We find that oftentimes we cannot get this information from the healthcare provider.  We need to have this information in order to settle cases, and to participate meaningfully in mediation and settlement conferences.  Once again, it should not take weeks or even days in order to obtain this information.  The attorney’s office needs access to this information.  Once again, this problem is magnified when outside billing company’s are involved.

9. Reductions.

In order to get cases settled and to meaningfully participate in settlement conferences and mediation, it is necessary for the attorney to know ahead of time what reductions the healthcare provider is willing to accept.  During the mediation or settlement conference, if an offer is made, the attorney must be able to tell the client what he or she will end up with as a net recovery during the proceeding.  The attorney does not know how much money will be offered to settle the client’s case.  Therefore, the attorney will contact the healthcare provider, usually in writing (via fax) for pre-approved reductions prior entering into a mediation or settlement conference.  Most healthcare providers are not aware of how mediations and settlement conferences work.  It appears that mediation and settlement conferences currently are being utilized more frequently in an attempt to resolve claims.

10. Custodian of Records Affidavit.

In order to authenticate medical bills and records for admissibility into evidence, it is necessary for the attorney to authenticate these documents.  This can be done with a Custodian of Records Affidavit.  My office, as a matter of procedure, sends  with every request for bills and records, a Custodian of Records Affidavit.  These certificates are sometimes ignored by healthcare providers.  Generally speaking, we receive bills and records without an executed Custodian of Records Affidavit.  The medical records, for purposes of litigation, cannot be admitted into evidence without the Custodian of Records Affidavit.  Most judges will not admit bills and records into evidence without the executed Custodian of Records Affidavit.  In order to respond to the affidavit properly, the healthcare provider should be able to provide a notarized signature by the Custodian.  Our office, as an alternative, will send two Custodian of Records Affidavits.  One has a form for notarization, and the other has a statement stating that the custodian signs under penalty of perjury.  The second alternative may not work with some judges.  Therefore, it is critical if the Custodian of Records has access to a notary for proper execution of the Custodian of Records Affidavits.

11. Arthritis Defense.

Most personal injury cases involve injuries to the neck and back.  The defense of these claims largely involves concentration on degenerative arthritis or degenerative changes in the spine.

The healthcare provider should not let the defense attorney set up their case by catching the healthcare provider off guard to comment on pre-existing degenerative changes that appear in the patient’s diagnostic tests.  For the most part, I have been informed by healthcare providers that degenerative changes such as spondylosis are generally asymptomatic.  These degenerative changes increase the susceptibility of the patient to risk of injury.  This is very important on low impact auto accident cases.  Degenerative changes may decrease the injury threshold for an accident, increase the length of treatment, and produce more chronic conditions.  Therefore, it is important for the healthcare provider to understand the concept because anytime a diagnostic test shows degenerative changes, the defense will concentrate on this in an effort to defend the case, and to attempt to show that any symptomology that the patient had post accident was due to degenerative changes, and not to the subject accident.

12. Medical Records From Other Healthcare Providers.

It is the position of our Discovery Commissioner that a healthcare provider can testify on medical records from other healthcare providers that are in his file.  There are two types of medical experts.  The treating physician and the medical expert.  The treating physician can comment on medical necessity, and the reasonable and customary nature of outside healthcare referrals without being designated as a medical expert.  These types of charges involved MRI’s, and referrals to specialists like orthopedic doctors and neurologists.  The healthcare provider should be able to testify that the services provided by these outside facilities were medically necessary, and that their charges were reasonable and customary.  Obviously, it will be necessary for the doctor to not only request a copy of the medical report from the referred facility, but also must obtain a copy of their bill.

All of the areas covered in this blawg should be common knowledge to healthcare providers that are involved with personal injury cases.  We have seen a tremendous turnover in medical facilities that deal with personal injury cases in recent years. Many of the new healthcare providers that are treating patient’s on personal injury cases, do not have much experience at litigation.  The information contained in this blawg is critical to the healthcare provider in understanding his role in assisting his patients on injury claims and during litigation.

If you wait until you have settlement to report a Medicare Liability Claim, you will undoubtedly experience frustration.

The thing to do is to report the Medicare Liability Claim as soon as it comes into your office.  Start the process immediately.  This is true, even if Medicare pays no medical bills on a liability claim.  Currently, all insurance carriers, because of the financial penalties associated with the new Medicare guidelines, want something in writing from Medicare concerning the extent of their lien for all Medicare eligible claimants.  Otherwise, you may end up with Medicare as a payee on your settlement check.

If you wait until you have a settlement to report a Medicare Liability Claim, you will undoubtedly experience frustration.

The thing to do is to report the Medicare Liability Claim as soon as it comes into your office.  Start the process immediately.  This is true, even if Medicare pays no medical bills on a liability claim.  Currently, all insurance carriers, because of the financial penalties associated with the new Medicare guidelines, want something in writing from Medicare concerning the extent of their lien for all Medicare eligible claimants.  Otherwise, you may end up with Medicare as a payee on your settlement check.

The reporting process involves the following steps:

1. The first step is to call COBC (Coordination of Benefits Contractor) to report the claim over the phone.  (800)999-1118.  They are open Monday-Friday 8:00 a.m. to 8:00 p.m., Eastern time.  It is now much easier to reach a COBC representative.
2. After you do this you will be sent a Consent to Release form that must be signed by your client.  This gives you authority to obtain your client’s lien information from Medicare.
3. You will then receive a form which is printed in red. This form requires the same information that you gave COBC over the phone.  Your client must sign this form.
4. About 8 weeks later (if your lucky) you will the receive a conditional payment letter (CPL).  This lists the payments for medical bills that MSPRC believes are related to the liability claim.  Most often it contains all bills that are paid by Medicare subsequent to the date of the accident.  You must send a letter to MSPRC to challenge the relationship of any bills on this list to medical treatment related to the liability accident.  You will then receive a revised CPL, or you can file an appeal stating the reasons why all medical bills listed are not related.
5. After you reach a settlement, you give MSPRC the gross settlement amount, and your attorneys fees, costs.  MSPRC then computes a final lien amount.  You will receive a Final Demand Lien Letter from MSPRC after they receive your settlement information.  If this is not paid in a timely manner, interest will accrue on the the Medicare lien.

Medicare does take into consideration attorneys’ fees and costs incurred by the recipient in determining the final demand amount.  As a result, the conditional payment amount related to the liability claim will be reduced.

If you get the Medicare liability claim ball rolling at the beginning of your client’s claim, all you will need at the end of the claim is the Final Demand Lien Letter from MSPRC.

Are there automobile accidents where auto insurance coverages do not apply?  The answer to that question is, unfortunately, yes.

On December 30, 2004, a young man was driving his pickup truck westbound on Hacienda.  The adverse driver, prior to the accident, was driving his pickup truck northbound in the southbound lanes on Rainbow (on the wrong side of the road), ran a red light at a very high rate of speed and collided with the driver’s side of the young man’s vehicle.  The young man died almost instantly.  The collision between the adverse vehicle and the decedent’s vehicle prevented the adverse vehicle from colliding head-on with the other vehicles that were stopped in the southbound lanes of Rainbow for a stop light.

The adverse driver claims to have experienced a seizure just prior to the accident.

The traffic accident report approximates the adverse driver’s speed at approximately sixty-nine to seventy-three (69-73) miles per hour.

The adverse driver was taken to University Medical Center after the accident. His Dilantin level was below therapeutic range.

In the litigation that followed this fatal accident, the Defendants (the adverse driver and his employer) asserted the affirmative defense of “sudden medical emergency” or “blackout”.

The sudden medical emergency defense was established by the Supreme Court of Ohio in a case dating back to 1956, Lehman v.  Haynam, 133 N.E 2d 97 (1956). The Ohio Supreme Court stated, “where the driver of an automobile is suddenly stricken by a period of unconsciousness which he had no reason to anticipate and which renders it impossible for him to control the car he is driving, he is not chargeable with negligence as to such lack of control.”

In that case, the Defendants Affirmative Defense stated “The subject accident and Plaintiffs’ damages, if any, were caused by an unavoidable sudden emergency and not by Defendants’ negligence or other actionable conduct, the existence of which is denied.”

The Ohio Supreme Court reviewed the sudden medical emergency defense in the case of Roman v. State of Gobbo, 99 Ohio St. 3d 260, (2003). This involved an accident where the Defendant Walter Roman suffered an incapacitating heart attack prior to the accident. In that accident, the Roman vehicle caused a multiple vehicle car accident resulting in the death of Nino Gobbo and his wife Frances.

The “sudden medical emergency” defense has not been adopted by the Nevada Supreme Court.  Public policy in Nevada dictates that it should not be adopted in the state of Nevada.  However, in several cases filed in our District Court, the Defendants have raised this defense.

The rational behind the adoption of the sudden medical emergency defense is based upon the premise that to find a Defendant liable for the effects of an unforeseen medical emergency that causes sudden unconsciousness is to impose strict liability for the violation of traffic statutes.

To that extent the doctrine may be logical, however in equating no negligence with no liability the doctrine is not sensible.

In the Roman case, the decedents and injured parties were not negligent either. They did nothing wrong except to be in the Defendant’s path when they died or were injured. Yet these individuals bear the harsh consequences of the sudden medical emergency doctrine.

Because of this defense they could not recover damages from the person who caused them death and destruction, even though they were completely innocent victims of a motor vehicle accident. They also can not recover from their uninsured motorist coverage, since this coverage is fault based. This also does not make sense.  See my prior post  on Uninsured Motorist Underinsurance Coverage.

The prohibition against driving left of center, speeding and driving through a red light are some of our most important traffic rules established for the protection of the public.  Nobody would be willing to drive on our roadways without the expectation that others will comply with these traffic laws.  Yet, even these laws are trumped by the Sudden Medical Emergency Doctrine. The questions is, “Why?”.

No valid public policy is served by applying the “Sudden Medical Emergency Doctrine.”  The doctrine prevents accident victims from pursuing damages from the person who caused their death and injury. The doctrine prevents accident victims from collecting uninsured motorist coverage on their own automobile insurance policies, which they purchased to protect themselves and their families from just such a catastrophe.

The end result of the adoption of the sudden medical emergency defense is that accident victims involved in these unfortunate accidents, regardless of the degree of their injuries, would not be able to collect their damages from any liability insurance or from their own uninsured motorist coverage. This makes absolutely no sense. The “Sudden Medical Emergency Doctrine” is not logical and should not be accepted.

A better rule would be to allow innocent victims, like the Plaintiffs in the first example case, to pursue damages against the auto insurance coverage of the person who’s sudden medical emergency resulted in a violation of traffic safety laws which were the proximate causes of death or injury.

Nevada Public Policy concerning epilepsy is expressed by our traffic laws.

In the state of Nevada one of the qualifications to drive a commercial motor vehicle and obtain a Commercial Drivers License is that the applicant does not have an established medical history or clinical diagnoses of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a motor vehicle. See, NRS 391.41 (d)(8).

This statute states that “epilepsy is a chronic functional disease characterized by seizures or episodes that occur without warning, resulting in loss of voluntary control which may lead to loss of consciousness and/or seizures. Therefore, the following drivers can not be qualified:

(1) A driver who had a medical history of epilepsy;

(2) A driver who has a current clinical diagnoses of epilepsy; or,

(3) A driver who is taking anti-seizure medication.

The sudden medical emergency defense is contrary to Nevada’s financial responsibility laws.

NRS 484.185 states as follows:

Every owner of a motor vehicle which is registered or required to be registered in this state shall continuously provide, while the motor vehicle is present or registered in this state, insurance:

1. In the amount of $15,000.00 for bodily injury of one person in any accident;

2. Subject to the limit for one person in the amount of $30,000.00 for bodily injury to or death of two or more persons in any one accident;

3. In the amount of $10,000.00 for injury to or destruction of property of others in any one accident, for the payment of tort liabilities arising from the maintenance or use of the motor vehicle. (emphasis added)

The purpose of this section is to ensure that motor vehicles carry continuous liability insurance. State, Dep’t of Motor Vehicles v. Lawlor, 101 Nev 616, 707 P 2d 1140 (1985).

The sudden medical emergency defense creates an exemption from Nevada’s financial responsibility law. This is a windfall to the liability insurance carriers of the person claiming “sudden medical emergency.”

The purpose of the motor vehicle financial responsibility law is to guarantee protection to one who is injured by an automobile not covered by liability insurance.  A.G.O. 250 (3-27-1957).

If the “sudden medical emergency” defense is adopted by our State Legislature or by Nevada Case law, the burden of financial responsibility will fall upon the deceased or injured individuals and their families because they will not be able to rely upon their own uninsured motorist coverage to recover their damages.  Innocent victims would then have to rely on other collateral sources for payment of their lost earnings, medical bills, funeral expenses, etc. The financial burden of the sudden medical emergency defense then fall upon first party health insurance companies.  Since this defense extinguishes fault (negligence), it extinguishes the right of subrogation.  Subrogation is a fault-based legal concept which allows insurance companies paying medical bills or property damage bills to recover their payments from the third-party tortfeasor.

Nevada law is replete with cases protecting the rights of injured parties, See, e.g, State Farm v. Hinkle, 87 Nev. 478, 488 P.2d 1151 (1971) (Restriction on uninsured motorist coverage for a minor injured while riding a motorcycle by an exclusionary provision violated express public policy); Buck v. Greyhound Lines, Inc., 105 Nev. 756, 783 P.2d 437 (1989) (Affirming joint and several liability for negligence-free passengers protecting the rights of innocent victims of accidents); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996) (Non-deligible duty to provide responsible third-party security personnel); Allison v. Merck and Co., Inc., 110 Nev. 762, 878 P.2d 948 (1994) (Public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those that market them and be treated as a cost of production against which liability insurance can be obtained).

Assuming that no first party insurance is available in situations where the sudden medical emergency defense is asserted, then the burden of financial responsibility falls upon the general public. Our tax dollars in the form of public assistance will pay for medical care and living expenses of “sudden medical emergency” victims.

Whatdoyado to prevent the “Sudden Medical Emergency” defense from being adopted in Nevada?  Speak to your Legislators.