Marilyn Martyn v. Rossell Nevins, M.D., et al.

Las Vegas, Nevada personal injury medical malpractice lawyers represented the Plaintiff.

In 2009, Dr. Russell Nevins performed a revision right total shoulder arthroplasty on Marilyn Martyn. During this shoulder replacement surgery, Martyn suffered a fracture to her distal humerus. Nevins attempted to cement the fracture, but the cement extravasated through the fracture in the distal humerus and caused a burning injury to Martyn's radial nerve, resulting in permanent radial nerve palsy.



Martyn sued Russell Nevins, M.D.; R. Nevins, M.D., Ltd.; and Nevada Orthopedic & Spine Center, LLP (collectively, appellants), alleging professional negligence. She contended that Dr. Nevins' negligence could be imputed to Nevins Ltd. and Nevada Orthopedic based upon vicarious liability and/or respondeat superior.



The case went to trial twice. Following the first trial, the jury found in favor of appellants. Martyn moved for a new trial due to juror misconduct, which the district court granted. Before the second trial, Martyn made two offers of judgment, first for $1,000,000 and later for $750,000. Appellants rejected both offers.



At trial, the district court gave the jury a res ipsa loquitur instruction, which informed the jury that the existence of an injury from an unintended burn caused by heat during medical care gave rise to a rebuttable presumption that the injury was the result of negligence. The jury found in favor of Martyn. Although the jury determined that damages were warranted in the amounts of $1,576,800 for past pain and suffering and $1,576,800 for future pain and suffering, the district court reduced the total amount for pain and suffering to $350,000 pursuant to NRS 41A.035. Including interest and other damages, the district court entered judgment awarding Martyn a total of $3,156,402.34. Martyn then requested attorney fees and expert costs. The court retaxed and awarded costs in part, capping Martyn's expert witness costs at $9,000 ($1,500 each for six expert witnesses) pursuant to NRS 18.005(5) (2007); 2007 Nev. Stat., ch. 440, § 7, at 2191. The court awarded $1,578,201.17 in attorney fees as well, reducing the 50% contingency fee agreed upon between Martyn and her counsel pursuant to NRS 7.095, which applies to limit contingent fees in actions against health care providers, as to Nevins individually but not as to the entity appellants, such that only $545,126.85 of the total award could be collected from Nevins.



* * *



Nevins v. Martyn, 140 Nev.Adv.Op. 66, 85193, 85247, 85541 (Nev. Oct 17, 2024)

Affirmed in part and reversed in part.