and Dewey Dirks
It has been shown to us again and again over the years that this trust
is terribly misplaced. When you look at the numbers of medical
institutions and doctors being sued for mistakes and add almost half
that many people that are prevented from bringing a lawsuit because of
lawyer error, you should wonder why we continue to trust lawyers,
judges and medical people this much and stop doing it.
So, that in mind, this incident gives cause for more mistrust.
August 20, 2013, I was with a family member in court, making her case
orally, and because of judicial error, was unable to. She made a
point, several times — throughout writings and motions from the onset
— about Nevada’s statute of limitations on medical malpractice. It is
one thing, unsettling as it may be, to argue with lawyers about common
points of law; but scarier than that is to be required to argue with
your own lawyer about the law. And it is scarier still to have to try
and argue with the judge who is unfamiliar with the very legislation
that it is his/her job to adjudicate with accuracy.
The law in question here is the Nevada revised statutes, or NRS
41A.097. Many lawyers claim it to be a confusing statute. To a small
degree, I agree. However, it is not so confusing that it justifies the
extremely widespread confusion we have. This mass confusion isolates
many people from the justice they deserve due to attorneys and judges
who do not understand this part of the statute:
NRS 41A.097(2) Limitation of actions; tolling of limitation.
2. Except as otherwise provided in subsection 3, an action for injury
or death against a provider of health care may not be commenced more
than 3 years after the date of injury or 1 year after the plaintiff
discovers or through the use of reasonable diligence should have
discovered the injury, whichever occurs first.
Laypeople, such as myself, should not have to understand the statutes
— but for self-defense, I suggest you get familiar with them. There
are solid reasons lawyer jokes proliferate.
The statute was voted in by the people in 2004 so you do not have to
understand legislative intent. Quoting the Ballot Questions 2004
handbook, which explains the law and changes it in a way those of us
without a law degree can understand, we read:
“The proposal also revises the statute of limitations for the filing
of actions. The current law that requires an injured person to file a
medical malpractice lawsuit within 3 years of the date of injury
remains unchanged. The current law also provides that if the injury
was not immediately apparent, the injured person has 2 years from the
time the person discovers or should have discovered the injury to file
the lawsuit. The proposal would reduce this time from 2 years to 1
It is that simple.
The opposing attorney and the judge misunderstood the statute so a
case for wrongful death was dismissed unjustly. The injury was in
December 2011 and she did not file until June 2013, because many
lawyers told her she had two years by statute. She needed that time to
grieve the devastating loss of a full term baby, not chase lawyers.
She was within the three-years mandated. Where those lawyers got two
years is another story. There’s the confusion that is mostly
intentional throughout the legal community because lawyers that
represent doctors have a much easier time defending their clients by
getting a case thrown out as opposed to arguing it.
The Judge first complimented Ambrosia for her legal skills. After
that, just about every word he spoke to her was dripping with disdain
and condescension. He gave Ambrosia the discovery she had argued for
and then “apologized” for not being able to agree with her
interpretation of this statute. That was an unconscionable error, and
then he gave discovery on a closed case. How many hundreds of others
has he done this to? This judge went on to tell her that many lawyers
take these cases all the time and most on contingency; so, and I quote
“maybe you should think about the fact that you don’t have a very good
I applaud honesty, brutal or not, but only when the person being
honest has bothered to get a few facts first. This judge had
absolutely no idea of the law he is supposed to enforce, much less
that we contacted many — around twenty — and got three different
responses. Almost a third would not take the case because there was no
autopsy. About half of the rest would not take the case because of
their belief in the one-year statute of limitations. All of the
remaining lawyers we contacted would not return our calls.
Twice, when I had an attorney, they got angry when I did not take the
first settlement offer we got; they scorned me and would seldom do
what I asked. The truth is, lawyers make as many mistakes as we do and
they are expensive.
It’s time to rethink the trust that we give so freely to professional
people as these are not isolated cases. In interviews I conduct as an
advocate, I have heard this story too many times to count.