Jain v. McFarland
| Citation | 851 P.2d 450,109 Nev. 465 |
| Decision Date | 07 May 1993 |
| Docket Number | No. 22646,22646 |
| Parties | Ranjit JAIN, M.D., Frank D. Silver, M.D., and John Dudek, M.D., Appellants, v. Jerlean McFARLAND, Respondent. |
| Court | Supreme Court of Nevada |
Alverson, Taylor, Mortensen & Nelson, Las Vegas, for appellant Jain.
Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Las Vegas, for appellant Silver.
Hafen & Mayor, Las Vegas, for appellant Dudek.
Barker, Gillock, Koning & Brown, Las Vegas, for respondent.
Vargas & Bartlett and Jeffrey J. Whitehead, Reno, for amici curiae American Medical Ass'n, Nevada State Medical Ass'n, and Nevada Hosp. Ass'n.
Facts
On August 1, 1985, Jerlean McFarland (Ms. McFarland) underwent a total abdominal hysterectomy and anterior vaginal repair. After the surgery, she experienced urinary incontinence and was referred to Dr. Ranjit Jain (Dr. Jain), a board-certified urologist. Ms. McFarland's complaint was that she was "wet all the time." Dr. Jain knew that Ms. McFarland had recently had a hysterectomy, but he did not perform a "methylene blue test" to detect a possible vesicovaginal fistula, 1 a hole between the bladder and vaginal wall which causes leakage of urine to the vagina. Instead, Dr. Jain diagnosed stress incontinence, and on November 1, 1985, he performed a Stamey procedure 2 to lift the bladder. Following the Stamey procedure, Ms. McFarland still leaked urine. To cope with the problem, she resorted to wearing diapers and became so depressed that she considered committing suicide.
When the leakage worsened, Ms. McFarland asked Dr. Jain to locate the problem. On February 26, 1986, as a last resort, Dr. Jain performed the "methylene blue test" and diagnosed a vesicovaginal fistula. However, because Ms. McFarland's insurance had lapsed, she had no coverage until she could return to work as a bathroom attendant. Dr. Jain did not inform Ms. McFarland that she should receive prompt treatment while the fistula was still the size of a pinhole or that a simple cauterization procedure was available. He also did not attempt to follow up on her treatment. At trial, he testified that he thought he would be in trouble if he treated a patient who did not have insurance.
By the fall of 1986, Ms. McFarland's urine leakage had intensified. Having returned to work in February, 1986, she was again eligible for insurance. In September, 1986, Dr. Frank Silver (Dr. Silver), a board-certified gynecologist, diagnosed a vesicovaginal fistula. On October 6, 1986, Dr. Silver attempted a transvaginal repair, but Ms. McFarland still leaked urine. Dr. Silver subsequently referred her to Dr. John Dudek (Dr. Dudek), a board-certified urologist. Dr. Silver and Dr. Dudek jointly decided to operate to re-repair the vesicovaginal fistula. On December 9, 1986, only two months after the prior surgery, they operated on Ms. McFarland, using the "bladder" or "abdominal" approach preferred by urologists, rather than the vaginal approach Dr. Silver used on his first attempt.
Shortly after the surgery, Ms. McFarland continued to leak urine. Due to her discomfort and embarrassment, she stopped singing in her church choir and had to leave her son's high school graduation ceremony early. Her husband divorced her in 1987 because her condition interfered with her ability to have sexual relations. On March 1, 1988, Dr. Ehrlich and Dr. Raz at the UCLA Medical Center attempted a third fistula repair. The surgery was only partially successful, and Ms. McFarland must undergo surgery at least one more time.
On January 4, 1989, Ms. McFarland brought an action before the medical-legal screening panel (the screening panel), as required by NRS 41A.016(1). 3 The screening panel found no reasonable probability of medical malpractice on the part of Dr. Jain, Dr. Silver, or Dr. Dudek. Ms. McFarland subsequently obtained the depositions of several other doctors.
On January 31, 1989, Ms. McFarland filed a complaint in the district court alleging that Dr. Jain failed to timely diagnose the vesicovaginal fistula. She further alleged that Dr. Silver and Dr. Dudek were negligent in failing to properly repair the fistula. On July 2, 1991, the parties' attorneys met in a pre-trial conference in the chambers of the district court to decide how to handle the screening panel findings at trial. The court stated that it would not preclude Mr. Gillock, counsel for Ms. McFarland, from disclosing the dates on which Ms. McFarland hired her experts, which were subsequent to the screening panel decision.
The trial lasted from July 8 to July 13, 1991. The jury returned a verdict against Dr. Jain in the sum of $978,860.00, against Dr. Silver in the sum of $69,941.00, and against Dr. Dudek in the sum of $209,823.00, a twenty-five percent/seventy-five percent apportionment of damages as between Dr. Silver and Dr. Dudek, respectively. With respect to Dr. Jain, the jury rated Ms. McFarland's comparative negligence at twenty-three percent, reducing the verdict against Dr. Jain to $753,722.20. On July 25, 1991, the district court entered a judgment on the jury verdict against the appellants that included an additional award of prejudgment interest on the past damages.
The appellants argue that the district court violated NRS 41A.016(2) 4 when it allowed Ms. McFarland's counsel, Mr. Gillock, to tell the jury that the screening panel had not received certain witnesses' testimony. The appellants further argue that this evidence concerning other witnesses "frustrates the legislative intent in enacting the screening panel scheme as it did." The appellants complain that the district court allowed Ms. McFarland to state what evidence the screening panel did not have before it, but the court prohibited them from informing the jury what evidence the panel did have before it.
The minutes of the July 2, 1991, pretrial conference reflect that the court ruled as follows:
Court stated it will not preclude Mr. Gillock from arguing the dates the experts were hired.
During his opening argument at the trial, Mr. Alverson, counsel for Dr. Jain, started to address the subject of the screening panel's findings. The relevant portions of the trial transcript are as follows:
....
During closing argument, Mr. Gillock stated as follows:
And the Defendants have thrown up every conceivable road block along the way that it is possible to throw up--careless testimony, loose testimony, the screening panel, three local doctors, three local lawyers. They parade in a big sign that says the screening panel found that the Defendants were exonerated. But yet, every lawyer in this courtroom knows at the time of the screening panel hearing and knows that since then we have acquired Dr. Sparkuhl's deposition, Dr. Hirsch's deposition, Dr. Ehrlick's [sic] deposition. Dr. Rosenstein's current opinions as to the standard of care and the causation have been acquired since then. Dr. Rosenstein was employed in 1990. The screening panel was in 1989.
The purposes of the screening panel are to minimize frivolous suits against doctors, to encourage settlement, and to lower the costs of malpractice premiums and health care. In accord with the majority of states, Nevada provides for the admission of the panel decision at trial as mere evidence, as opposed to conclusive evidence. Jean A. Macchiaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58 Geo.Wash.L.Rev. 181, 193 (1990). Nevada is one of three states that expressly prohibits calling a panelist as a witness, while allowing admission of the panel decision. Id. at 194.
NRS 41A.016(2) states that the findings of the medical-legal screening panel and "no other evidence" concerning the screening panel or its deliberations is admissible in any action subsequently filed in district court. We hesitate to disturb or question carefully crafted legislation which balances various concerns to arrive at a structure that will fairly benefit all the parties to a medical malpractice suit, limit the burdens on the judicial system, and reduce health care costs by discouraging frivolous litigation. In Dubler v. Stetser, 179 N.J.Super. 139, 430 A.2d 962 (Ct.App.Div.1981), the court analyzed a statute similar to NRS 41A.016 and held that when instructing the jury as to its approach to medical malpractice panel findings, the trial judge must explain the function of the malpractice panel. In this regard, the judge should set forth the identity of each of the three panel members, as to profession only, because the findings of the panel would be virtually meaningless to a jury which was unaware of the occupations of pa...
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