Court reinstates malpractice suit against Vegas surgeon

By Cy Ryan (contact)

Thursday, Dec. 30, 2004 | 9:01 a.m.

CARSON CITY -- The Nevada Supreme Court Wednesday reinstated a medical malpractice suit against a Las Vegas surgeon who treated a man for lower digestive tract problems.

The court voted 3-0 to overturn the decision of District Judge Nancy Saitta who dismissed Alan Borger's suit against Dr. James Lovett and his Desert West Surgery.

The 2002 special session of the Nevada Legislature overhauled the medical malpractice law and required that any malpractice suit must be accompanied by affidavits from medical experts that malpractice occurred. The expert must practice or have practiced in an area substantially similar to the doctor being sued.

Lovett is a surgeon. Borger's suit included an affidavit from Dr. Marc Kudisch, a gastroenterologist, that Lovell had performed an unnecessary surgery on Borger.

Saitta dismissed the Borger suit on grounds that Kudisch practices gastroenterology and that is not "substantially similar to the type of practice" engaged in by Lovett.

The Supreme Court said Saitta erred in dismissing the suit.

"The diagnosis and treatment rendered by Dr. Lovett implicates Dr. Kudisch's area of expertise, the practice of gastroenterology," the court said.

Borger consulted with Lovett in January 1998 for his digestive problems. Lovett secured a clinical consultation from Dr. Dipak Desai, a gastroenterologist, who confirmed that Borger suffered from Crohn's disease, a regional inflammation of the small intestines.

In March 1999, Lovett performed surgery but Borger's condition did not improve. He then consulted Dr. Kudisch who concluded Dr. Desai misdiagnosed Borger and that Dr. Lovett performed unnecessary surgery.

The suit, filed in June 2002, also names Desai and his Gastroenterology Center of Nevada as defendants.

The court also said that a district court must dismiss a malpractice suit that is not accompanied by an affidavit of an expert. And the district court cannot permit the complaint be amended to allow an affidavit to be included.

The court said one purpose of the law "is to ensure that such actions be brought in good faith based upon competent expert opinion. In this, the statute clearly works against frivolous lawsuits filed with some vague hope that a favorable expert opinion might eventually surface."