358 P.3d 234 (Nev. 2015), 66346, Tam v. Eighth Judicial District Court

Docket Nº:66346
Citation:358 P.3d 234
Opinion Judge:HARDESTY, C.J.:
Party Name:STEPHEN TAM, M.D., Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JERRY A. WIESE, DISTRICT JUDGE, Respondents, and SHERRY CORNELL, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES THOMAS CORNELL, JR.; KARLA CRAWFORD, AS SPECIAL ADMINISTRATOR OF THE ES...
Attorney:Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E. Jordan, Las Vegas, for Petitioner. Law Office of Bradley L. Booke and Bradley L. Booke, Las Vegas; Shandor S. Badaruddin, Missoula, Montana, for Real Parties in Interest Sherry Cornell, Karla Crawford, and Patrick N. Chapin. Car...
Judge Panel:Hardesty, C.J. We Concur: Parraguirre, J., Douglas, J., Cherry, J., Saitta, J., Pickering, J. We Concur: Parraguirre, J., Douglas, J., Cherry, J., Saitta, J., Pickering, J.
Case Date:October 01, 2015
Court:Supreme Court of Nevada
 
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Page 234

358 P.3d 234 (Nev. 2015)

STEPHEN TAM, M.D., Petitioner,

v.

THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JERRY A. WIESE, DISTRICT JUDGE, Respondents,

and

SHERRY CORNELL, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES THOMAS CORNELL, JR.; KARLA CRAWFORD, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES THOMAS CORNELL, JR.; PATRICK N. CHAPIN, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF CHARLES THOMAS CORNELL, JR.; AND ALFREDO HIBBART, PA, Real Parties in Interest

No. 66346

Supreme Court of Nevada

October 1, 2015

Page 235

Original petition for writ of mandamus challenging a district court order ruling a statute unconstitutional in a medical malpractice action.

Petition granted.

Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E. Jordan, Las Vegas, for Petitioner.

Law Office of Bradley L. Booke and Bradley L. Booke, Las Vegas; Shandor S. Badaruddin, Missoula, Montana, for Real Parties in Interest Sherry Cornell, Karla Crawford, and Patrick N. Chapin.

Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C. McBride, Las Vegas, for Real Party in Interest Alfredo Hibbart.

Hardesty, C.J. We Concur: Parraguirre, J., Douglas, J., Cherry, J., Saitta, J., Pickering, J.

OPINION

Page 236

BEFORE THE COURT EN BANC.

HARDESTY, C.J.:

NRS 41A.035 (2004) limits the recovery of a plaintiff's noneconomic damages in a health-care provider's professional negligence action to $350,000. In this petition, we resolve three issues related to this statute: whether the statute violates a plaintiff's right to trial by jury, whether the cap applies separately to each cause of action, and whether the statute applies to medical malpractice actions. We conclude that the district court erred in finding the statute unconstitutional on the basis that it violates a plaintiff's constitutional right to trial by jury. We further conclude that the district court erred when it found the statutory cap applies per plaintiff and per defendant. And finally, we conclude that the district court erred when it found the statute only applies to professional negligence and not to medical malpractice. Accordingly, we grant the petition.

FACTS

After the death of Charles Thomas Cornell, Jr., real party in interest Sherry Cornell,1 individually and as administrator of Charles's estate, filed a complaint alleging, among other causes of actions, professional negligence and medical malpractice. The complaint named numerous defendants, including petitioner Stephen Tam, M.D.

Charles had several chronic medical conditions. However, Cornell alleged that Charles died after receiving care from the defendants, who discharged him without medications or prescriptions for essential medications, including insulin, to treat his diabetes.

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Consequently, the complaint alleged that Charles died because he did not have access to insulin.

The district court dismissed several of the defendants and numerous claims from the action, and the remaining claims for trial fell " within the definition of medical malpractice as set forth in NRS 41A.009." Relevant to this opinion is that Dr. Tam filed an omnibus motion in limine requesting in part that the plaintiffs' noneconomic damages be limited to $350,000 as a whole pursuant to NRS 41A.035 (2004).

The district court denied this motion finding that NRS 41A.035 was unconstitutional, as it violated a plaintiff's constitutional right to trial by jury. The district court also found that the cap in NRS 41A.035 does not apply to the case as a whole but that a separate cap applies to each plaintiff for each of the defendants.2 In addition, the district court found that the cap in NRS 41A.035 did not apply to medical malpractice claims.3 This petition for writ relief followed.

Writ relief is appropriate

Dr. Tam petitions this court for a writ of mandamus compelling the district court to vacate its order denying his motion in limine. " 'A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station or to control an arbitrary or capricious exercise of discretion.'" Humphries v. Eighth Judicial Dist. Court, 129 Nev.Adv.Rep. 85, 312 P.3d 484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)); NRS 34.160. Generally, " [w]rit relief is not available . . . when an adequate and speedy legal remedy exists." Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558. " While an appeal generally constitutes an adequate and speedy remedy precluding writ relief, we have, nonetheless, exercised our discretion to intervene 'under circumstances of urgency or strong necessity, or when an important issue of law needs clarification and sound judicial economy and administration favor the granting of the petition'" Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (footnote omitted) (quoting State v. Second Judicial Dist. Court, 118 Nev. 609, 614, 55 P.3d 420, 423 (2002)).

In this case, although an appeal from a final judgment appears to be an adequate and speedy remedy for the individual parties, resolving this writ petition could affect the course of the litigation and thus promote sound judicial economy and administration. Moreover, this petition raises an important legal issue in need of clarification involving public policy, which could resolve or mitigate related or future litigation. Accordingly, we exercise our discretion to entertain Dr. Tam's petition for writ of mandamus.

The district court erred in finding NRS 41A.035 unconstitutional, as the statute does not violate the right of trial by jury

NRS 41A.035 provides that " [i]n an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages awarded in such an action must not exceed $350,000." The district court concluded that the statute violates the right of trial by jury because it takes a question of fact--the determination of damages--away from the jury.

" [T]his court reviews de novo determinations of whether a statute is constitutional." Hernandez v. Bennett-Haron, 128 Nev.Adv.Rep. 54, 287 P.3d 305, 310 (2012). " Statutes

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are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. In order to meet that burden, the challenger must make a clear showing of invalidity." Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d 682, 684 (2006) (citation omitted).

In Nevada, " [t]he right of trial by Jury shall be secured to all and remain inviolate forever." Nev. Const, art. 1, § 3. This provision guarantees " the right to have factual issues determined by a jury." Drummond v. Mid-West Growers Coop. Corp., 91 Nev. 698, 711, 542 P.2d 198, 207 (1975).

In order for a statute to violate the right to trial by jury, a statute must make the right practically unavailable. Barrett v. Baird, 111 Nev. 1496, 1502, 908 P.2d 689, 694 (1995) (" [T]he correct standard for evaluating whether a statute unconstitutionally restricts the right to a jury trial is that the right must not be burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable." (internal quotations...

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