Health Care -

Nevada

I. Statutes Protecting Dependent Adults or Elders from Neglect or Abuse

If an older person or a vulnerable person suffers a personal injury or death that is caused by abuse or neglect or suffers a loss of money or property caused by exploitation, the person who caused the injury, death, or loss is liable to the older person or vulnerable person for two times the actual damages incurred by the older person or vulnerable person. Nev. Rev. Stat. 41.1395(1)

A. Conduct

1. Neglect: The failure of a person who has assumed legal responsibility or a contractual obligation for caring for an older person or a vulnerable person, or who has voluntarily assumed responsibility for such a person’s care, to provide food, shelter, clothing or services within the scope of the person’s responsibility or obligation, which are necessary to maintain the physical or mental health of the older person or vulnerable person. A person voluntarily assumes responsibility to provide care for an older person only to the extent that the person has expressly acknowledged the person’s responsibility to provide such care. Nev. Rev. Stat. 41.1395(4)(c)

2. Abuse: Willful and unjustified:

a. Infliction of pain, injury, or mental anguish; or

b. Deprivation of food, shelter, clothing, or services which are necessary to maintain the physical or mental health of an older person or a vulnerable person. Nev. Rev. Stat. 41.1395(4)(a)(1)-(2)

3. Exploitation: Any act taken by a person who has the trust and confidence of an older person or a vulnerable person or any use of the power of attorney or guardianship of an older person or a vulnerable person to:

a. Obtain control, through deception, intimidation, or undue influence, over the money, assets, or property of the older person or vulnerable person of the ownership, use, benefit or possession of that person’s money, assets, or property; or

b. Convert money, assets, or property of the older person with the intention of permanently depriving the older person or vulnerable person of the ownership, use, benefit, or possession of that person’s money, assets, or property.

c. “Undue influence” does not include the normal influence that one member of a family has over another. Nev. Rev. Stat. 41.1395(b)(1)-(2)

B. Persons Protected

1. Older Person: a person who is 60 years of age or older. Nev. Rev. Stat. 41.1395(4)(d)

2. Vulnerable Person – Types of Impairment

a. Has a physical or mental impairment that substantially limits one or more of the major life activities of the person; and

b. Has a medical or psychological record of the impairment or is otherwise regarded as having the impairment.

c. The term includes, without limitation, a person who has an intellectual disability, a person who has a severe learning disability, a person who suffers from a severe mental or emotional illness or a person who suffers from a terminal or catastrophic illness or injury. Nev. Rev. Stat. 41.1395(4)(e)(1)-(2)

C. Persons/Entities Excluded from Statute

1. A person who caused injury, death, or loss to a vulnerable person if the person did not know or have reason to know that the harmed person was a vulnerable person. Nev. Rev. Stat. 41.1395(3)

D. Reporting Requirement for Litigation

1. There is no requirement that a person serve notice and a copy of the Summons and Complaint to the state at or before the time of filing the civil action.

E. Preclusion of Arbitration

1. Arbitration is not precluded in elder abuse cases. See, e.g., Manor Health Care Center, Inc. v. Monsour (Nev. 2010) 2013 WL 3341726 (affirming arbitrator’s award of damages in an elder abuse case against a health care center).

F. Criminal Provision

1. Abuse/Isolation: Any person who abuses or isolates an older person or vulnerable person for the first time is guilty of a gross misdemeanor. For any subsequent offense, or if the person has been convicted in another jurisdiction for the same or similar conduct, the person is guilty of a Category B felony. Nev. Rev. Stat. 200.5099(1)(a)-(b); 200.5099(6)

2. Neglect: Any person who assumes responsibility, legally, voluntarily, or pursuant to a contract, to care for an older person or a vulnerable person, and who neglects the older person or vulnerable person to suffer physical pain or mental suffering, permit or allows the older person or vulnerable person to suffer unjustifiable physical pain or mental suffering, or permits or allows the older person or vulnerable person to be placed in a situation where the older person or vulnerable person may suffer physical pain or mental suffering as a result of abuse or neglect, is guilty of a gross misdemeanor unless a more severe penalty is prescribed by law for the act or omission which brings about the abuse. Nev. Rev. Stat. 200.5099(2)(a)-(c)

a. To permit means permission that a reasonable person would not grant and which amounts to a neglect of responsibility attending the care and custody of an older person or a vulnerable person. Nev. Rev. Stat. 200-5099(9)(b)

b. To allow means to take no action to prevent or stop the abuse or neglect of an older person or a vulnerable person if the person knows or has reason to know that the older person or vulnerable person is being abused or neglected. Nev. Rev. Stat. 200-5099(9)(a)

3. Exploitation: The severity of the punishment for exploitation depends upon the value of the money, assets, or property obtained. Nev. Rev. Stat. 200-5099(3)(a)-(c).

G. Statute of Limitations: Two Years Nev. Rev. Stat. 11.190(4)(e).

H. Burden of Proof: Preponderance of the evidence Nev. Rev. Stat. 41.1395(2)

I. Can Regulations Establish Standard of Care?

1. Most likely. Nevada courts have consistently held that a violation of a statute constitutes “negligence per se if the injured party belongs to the class of persons that the statute was intended to protect, and the injury suffered is the type the statute intended to protect, and the injury suffered is of the type the statute was intended to prevent. Vega v. Eastern Courtyard Associates (Nev. 2001) 117 Nev. 436, 440.

II. Damages

A. Damages Available

1. Actual Damages

2. Special Damages

3. Punitive Damages

4. Injunctive Relief

5. Costs of Suit

B. Does Pain and Suffering of Decedent Survive Death? YES

1. When a person who has a cause of action dies before judgment, the damages recoverable by the decedent’s executor or administrator include all losses or damages which the decedent incurred or sustained before the decedent’s death, including . . . damages for pain and suffering. Nev. Rev. Stat. 41.100(3)

C. Attorneys’ Fees Available: YES

1. Limitation: Upon a showing by a preponderance of the evidence that the person who is liable for damages acted with recklessness, oppression, fraud, or malice, the court shall order the person to pay the attorneys’ fees and costs of the person who initiated the lawsuit. Nev. Rev. Stat. 41.1395(2)

III. Legislation Affecting Statute

A. Pending: None

B. Anticipated: None