Barrett v. Baird, No. 25947

Docket NºNo. 25947
Citation908 P.2d 689, 111 Nev. 1496
Case DateDecember 19, 1995
CourtSupreme Court of Nevada

Page 689

908 P.2d 689
111 Nev. 1496
Peggy BARRETT, Appellant,
v.
George BAIRD, M.D.; St. Rose de Lima Hospital; Byron
Brown, M.D.; and Marvin Bernstein, M.D., Respondents.
No. 25947.
Supreme Court of Nevada.
Dec. 19, 1995.

Page 692

Barker, Gillock, Koning & Brown, Las Vegas; Mark Alan Johnson, Seattle, WA, for Appellant.

Hafen Mayor & Palmer, Las Vegas, for Respondent Baird.

Thorndal, Backus, Armstrong & Balkenbush, Las Vegas; Greines, Martin, Stein & Richland and Barbara W. Ravitz, Beverly Hills, CA, for Respondent St. Rose de Lima Hospital.

Gifford, Vernon, Beasey & Barker, Las Vegas, for Respondent Brown.

Mandelbaum & Curtis, Las Vegas; Schuering, Zimmerman, Scully & Nolen and Thomas J. Doyle, Sacramento, CA, for Respondent Bernstein.

Frankie Sue Del Papa, Attorney General and Edward T. Reed, Deputy Attorney General, Carson City, for Amicus Curiae the State of Nevada Department of Business and Industry Division of Insurance.

Thomas E. Drendel, Reno, for Amicus Curiae NTLA and ATLA.

OPINION

PER CURIAM:

Thomas Barrett contracted chicken pox. Mr. Barrett was not feeling well and went to respondent St. Rose de Lima Hospital (Hospital). There he was seen by respondent Dr. George Baird who, after performing several tests and prescribing treatments for Mr. Barrett, released Mr. Barrett from the hospital. That night, Mr. Barrett became delirious. He was rushed to the hospital and placed on a respirator, but the hospital did not have sufficient facilities to continue treating Mr. Barrett. Mr. Barrett was then transferred to the University Medical Center (Center).

At the Center, respondent Dr. Byron Brown treated Mr. Barrett. One of the treatments prescribed was a dialysis. Respondent Dr. Marvin Bernstein supervised the dialysis. During dialysis, Mr. Barrett had a cardiorespiratory arrest. As a result, he suffered severe brain damage and eventually died.

Appellant Peggy Barrett (Barrett), Mr. Barrett's wife, commenced an action for medical malpractice. Barrett claimed that Mr. Barrett's death was the result of the combined effects of (1) the negligent failure of Dr. Baird, as an agent of the Hospital, to admit Mr. Barrett to the Hospital on January 26, 1989, when, she claims, there was clear medical evidence that his chicken pox had disseminated and that he was developing varicella pneumonia and secondary infections due to the virus, and (2) Drs. Brown and Bernstein's negligent failure to diagnose and correct a massive bleed into Mr. Barrett's left pleural space, and Dr. Bernstein's negligent dialyzing of Mr. Barrett when he was hemodynamically unstable, due to the bleed.

Barrett commenced her action in accord with NRS 41A.016 by filing a petition before the Medical-Legal Malpractice Screening Panel (the screening panel) against Dr. Baird and the Hospital. Subsequent to a finding of no probability of negligence by the panel, Barrett filed a second petition with the panel against Drs. Brown and Bernstein. This panel, like the first, returned a finding of no probability of negligence as to the named physicians.

Despite the respective panel findings of no probability of negligence, Barrett brought a wrongful death action against Dr. Baird, the Hospital, Dr. Brown, and Dr. Bernstein, alleging medical malpractice in the treatment of her husband. The panel findings were introduced into evidence. A unanimous jury found that the defendants were not negligent. Judgments were entered in favor of all defendants for costs and attorney fees pursuant to NRS 41A.056(2).

Barrett filed two separate motions for a new trial--one based on asserted errors that occurred at trial and the other challenging the constitutionality of the screening panel

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statute. Both motions were denied. Barrett renews her denied challenges on appeal. Specifically, Barrett claims the screening panel statute is unconstitutional because it violates the right to a jury trial, equal protection, separation of powers, and due process. Furthermore, she claims that the district court abused its discretion in not granting her a new trial because opposing counsel engaged in discovery misconduct, made a remark about the high cost of health care, made an improper "golden rule" argument, showed the jury a picture of one of counsel's family, conducted a scientific demonstration during opening statement without laying foundation and then stated in closing argument that Barrett failed to refute the experiment, and, finally, improperly referred to the screening panel as an expert witness. Barrett also claims that the district court should have excluded evidence that she remarried.

We conclude that the screening panel statute is constitutional. Nevertheless, we reverse the lower court's judgment and award of attorney fees in favor of respondents on the grounds that the district court abused its discretion in failing to grant Barrett a new trial due to respondents' counsels' misconduct. NRCP 59(a)(2).

Respondents first claim that Barrett is precluded from raising her constitutional challenges on appeal to this court because they were not raised at trial. Failure to object below bars review on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52-53, 623 P.2d 981, 983-84 (1981). However, this court may address constitutional issues raised for the first time on appeal. See McCullough v. State, 99 Nev. 72, 74, 657 P.2d 1157, 1158 (1983). We do so here.

1. Right to a Jury Trial

NRS 41A.049(2) and NRS 41A.016(2) provide that the screening panel's decision is admissible at trial and that the panel may base that decision on medical records and expert witnesses, some of which may contain hearsay that would be inadmissible at a trial. 1 However, the statutes do not provide a claimant before a screening panel the opportunity to cross-examine any witnesses. Furthermore, panel members may not be deposed or subpoenaed regarding their decisions, nor may the panel's decision be subject to collateral review by a district court. See Phelps v. District Court, 106 Nev. 917, 921, 803 P.2d 1101, 1103 (1990).

Barrett asserts that the screening panel statute violates her constitutional right to a jury trial by allowing the screening panel to "preadjudicat[e] the issues of negligence and causation based on incompetent evidence (affidavits) and in the absence of cross-examination." She argues that the jury is not aware that the panel's decision is based on evidence which would not otherwise be admissible and which a plaintiff was not able to attack. She claims that the logical tendency is for a jury to overvalue the weight of the panel finding when the judge instructs the jury on the decision of "a panel of experts." Thus, she concludes that introduction of the panel's decision at trial substantially burdens her and other claimants' constitutional right to a jury trial.

We hold that the panel's consideration of otherwise inadmissible evidence not subject to cross-examination, the inability to depose or subpoena members of the panel, and the lack of judicial review of panel decisions do not violate Barrett's or any malpractice claimant's constitutional right to a jury trial. Article 1, Section 3 of the Nevada Constitution states in pertinent part: "The right of trial by jury shall be secured to all and remain inviolate forever; ..." 2 In sum,

Page 694

the Nevada Constitution guarantees "the right to have factual issues determined by a jury." Drummond v. Mid-West Growers, 91 Nev. 698, 711, 542 P.2d 198, 207 (1975). 3 This court has held that the 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.' " Williams v. Williams, 110 Nev. 830, 833, 877 P.2d 1081, 1083 (1994) (quoting Application of Smith, 381 Pa. 223, 112 A.2d 625, 629 (1955)). We hold that the screening panel statute does not make a medical malpractice claimant's right to a jury trial practically unavailable because it does not undermine the guarantee that a jury will find the facts.

Barrett first claims that the screening panel statute denies her right to a jury trial because jurors will overvalue the weight of the panel's decision without knowing that the panel's decision relies on evidence that would be inadmissible at trial. This claim lacks merit. In Jain v. McFarland, 109 Nev. 465, 472, 851 P.2d 450, 455 (1993), this court held that the screening panel process "is not a full trial on the merits and should not be represented as such." Indeed, NRS 41A.069, 4 which sets out jury instructions that a jury are to be given when panel findings are introduced at trial, clearly indicates that the panel's recommendation is, in effect, "an expert opinion which is to be evaluated by the jury in the same manner as it would evaluate any other expert opinion." 5 Comiskey v. Arlen, 55 A.D.2d 304, 390 N.Y.S.2d 122, 126 (1976), aff'd 43 N.Y.2d 696, 401 N.Y.S.2d 200, 372 N.E.2d 34 (1977). In Nevada, as in most jurisdictions, experts may rely on evidence that is otherwise inadmissible at a trial even when testifying before a jury as to an ultimate issue such as negligence. 6 NRS 41A.100, 50.285, 50.295. A jury is free to accept or reject that expert's opinion. Therefore, the fact that the screening panel's decision is introduced to the jury does not infringe on the jury's fact-finding

Page 695

duty even though the panel decision is based on otherwise inadmissible evidence.

In a recent federal court decision, Wray v. Gregory, 61 F.3d 1414 (9th Cir.1995), referring to Nevada's screening panel statute, the Ninth Circuit, in dictum, questioned whether relying solely on the statutorily-mandated instruction that the jury "weigh the screening panel's findings as it would 'any other evidence' " satisfied the Nevada and federal constitutions. Id. at 1419. The Ninth Circuit suggested, "a judge would be well...

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  • Grosjean v. Imperial Palace, Inc., No. 44542.
    • United States
    • Nevada Supreme Court of Nevada
    • July 30, 2009
    ...P.3d 459, 464 (2000), overruled on other grounds by Lioce, 124 Nev. 1, 174 P.3d 970; Barrett v. Baird, 111 212 P.3d 1079 Nev. 1496, 1514, 908 P.2d 689, 701-02 (1995), overruled on other grounds by Lioce, 124 Nev. 1, 174 P.3d We recently redefined, in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970......
  • Countrywide Home Loans, Inc. v. Thitchener, No. 46499.
    • United States
    • Nevada Supreme Court of Nevada
    • September 11, 2008
    ...Following trial, the district court denied Countrywide's motion for a new trial based on the "permeation" rule in Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995), overruled by Lioce v. Cohen, 124 Nev. ___, ___, 174 P.3d 970, 980 (2008). Reviewing these comments de novo, we c......
  • Irish v. Gimbel
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 6, 2000
    ...flowing from this result might well reach constitutional limits.") (emphasis added).3 In 743 A.2d 740 a recent case, Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995), the Nevada Supreme Court Since the parties are in no way precluded from impeaching the panel's conclusion by competent e......
  • In re S. N.H. Med. Ctr., No. 2011–754.
    • United States
    • Supreme Court of New Hampshire
    • October 30, 2012
    ...has the authority to enact laws affecting evidentiary rules. See Irish v. Gimbel, 691 A.2d 664, 672 (Me.1997) ; Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689, 700 (1995), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008) ; Comiskey, 390 N.Y.S.2d at 126. Of course......
  • Request a trial to view additional results
30 cases
  • Grosjean v. Imperial Palace, Inc., No. 44542.
    • United States
    • Nevada Supreme Court of Nevada
    • July 30, 2009
    ...P.3d 459, 464 (2000), overruled on other grounds by Lioce, 124 Nev. 1, 174 P.3d 970; Barrett v. Baird, 111 212 P.3d 1079 Nev. 1496, 1514, 908 P.2d 689, 701-02 (1995), overruled on other grounds by Lioce, 124 Nev. 1, 174 P.3d We recently redefined, in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970......
  • Countrywide Home Loans, Inc. v. Thitchener, No. 46499.
    • United States
    • Nevada Supreme Court of Nevada
    • September 11, 2008
    ...Following trial, the district court denied Countrywide's motion for a new trial based on the "permeation" rule in Barrett v. Baird, 111 Nev. 1496, 1515, 908 P.2d 689, 702 (1995), overruled by Lioce v. Cohen, 124 Nev. ___, ___, 174 P.3d 970, 980 (2008). Reviewing these comments de novo, we c......
  • Irish v. Gimbel
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 6, 2000
    ...flowing from this result might well reach constitutional limits.") (emphasis added).3 In 743 A.2d 740 a recent case, Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995), the Nevada Supreme Court Since the parties are in no way precluded from impeaching the panel's conclusion by competent e......
  • In re S. N.H. Med. Ctr., No. 2011–754.
    • United States
    • Supreme Court of New Hampshire
    • October 30, 2012
    ...has the authority to enact laws affecting evidentiary rules. See Irish v. Gimbel, 691 A.2d 664, 672 (Me.1997) ; Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689, 700 (1995), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008) ; Comiskey, 390 N.Y.S.2d at 126. Of course......
  • Request a trial to view additional results

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