Borger v. Dist. Ct.
| Decision Date | 29 December 2004 |
| Docket Number | No. 42128.,42128. |
| Citation | 102 P.3d 600,120 Nev. 1021 |
| Parties | Alan M. BORGER, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF CLARK, and the Honorable Nancy M. Saitta, District Judge, Respondents, and James V. Lovett, M.D., F.A.C.S., Individually; Lewis & Lovett, Ltd., D/B/A Desert West Surgery; Dipak K. Desai, M.D., F.A.C.G., Individually; and Endoscopy Center of Southern Nevada, L.L.C., D/B/A Gastroenterology Center of Nevada, Real Parties in Interest. |
| Court | Nevada Supreme Court |
John L. Hilts, Las Vegas; Leslie H. Wolf, Incline Village, for Petitioner.
Lauria Tokunaga & Gates, LLP, and Anthony D. Lauria, Sacramento, California, for Real Parties in Interest Dipak Desai and Endoscopy Center of Southern Nevada, d/b/a Gastroenterology Center of Nevada.
Lewis Brisbois Bisgaard & Smith, LLP, and V. Andrew Cass and Jeffrey D. Olster, Las Vegas, for Real Parties in Interest James Lovett and Lewis & Lovett, d/b/a Desert West Surgery.
Before ROSE, MAUPIN and DOUGLAS, JJ.
This original petition for a writ of mandamus challenges district court orders dismissing petitioner's medical malpractice action and denying his motion to amend his malpractice complaint. Because the petition involves important issues of law concerning the expert witness certification requirements of recently enacted NRS 41A.071, issues that merit clarification to further judicial economy in this case and in general, we grant this petition for writ relief.1
In January 1998, petitioner Alan Borger consulted with real party in interest James Lovett, M.D., a general surgeon, for treatment of recurrent lower digestive tract difficulties. Eventually, in early 1999, Dr. Lovett secured a clinical consultation from real party in interest, Dipak Desai, M.D., a gastroenterologist. Dr. Desai diagnostically confirmed that Borger suffered from a condition known as Crohn's disease2 and agreed with Dr. Lovett's recommendations for surgical intervention. On March 26, 1999, in accordance with the joint assessment, Dr. Lovett performed a colectomy3 and ileostomy4 upon Borger.
Unfortunately, Borger's condition did not improve over time. In January 2002, Borger began treatment with a second gastroenterologist, Marc Kudisch, M.D. Dr. Kudisch ultimately concluded that Dr. Desai misdiagnosed Borger with Crohn's disease, and that Dr. Lovett recommended and performed an unnecessary and overly aggressive surgical procedure. On June 24, 2002, Borger filed a complaint for medical malpractice against Drs. Lovett and Desai with the Nevada medical-legal screening panel.5
When Borger initiated the panel proceedings, all medical malpractice actions were subject to statutory prescreening by medical-legal screening panels.6 This statutory mechanism prohibited the filing of malpractice actions in district court without prior resort to the prescreening procedures.7 Complaints for panel review were lodged with the Division of Insurance of the Nevada Department of Business and Industry8 and, under certain circumstances, were subject to dismissal or rejection by the panel if filed without an affidavit from a medical expert in support of the malpractice claim.9 Findings of the panel in favor of or against the medical provider were admissible in any ultimate trial proceedings in district court.10
During the summer of 2002, while Borger's claim remained pending before the screening panel, the Governor of Nevada called the Legislature into special session to address a perceived medical malpractice insurance crisis. The Legislature, among other things, enacted various measures limiting or "capping" noneconomic damages in medical malpractice cases,11 tied damage limitations to procurement by medical providers of minimum professional liability coverage,12 changed the rules concerning joint and several liability of multiple malpractice defendants,13 repealed provisions requiring prescreening of cases by medical-legal screening panels,14 and provided for mandatory settlement conferences.15 NRS 41A.071, enacted as part of the special legislative package, requires that medical malpractice complaints filed on or after October 1, 2002,16 be accompanied by affidavits of merit from medical experts.17 Under this provision, the affiant must practice or have practiced in an area that is "substantially similar to the type of practice engaged in at the time of [the defendant's] alleged malpractice."18 A district court must dismiss, "without prejudice," any malpractice complaint filed in violation of NRS 41A.071.
Under the special session legislation, malpractice plaintiffs could elect to proceed under the repealed statutory format in actions filed with the Division of Insurance or in district court before October 1, 2002. Because Borger claimed considerable noneconomic damages, he elected to proceed under the old system, under which damage awards were not subject to monetary limitations.
On December 19, 2002, before the conclusion of the screening panel proceedings, Borger filed his first formal complaint in district court for medical malpractice against the real parties in interest: Dr. Lovett, Lewis & Lovett, Ltd., d/b/a Desert West Surgery, Dr. Desai and his corporate affiliate, Endoscopy Center of Southern Nevada, L.L.C., d/b/a Gastroenterology Center of Nevada. Pertinent to these proceedings, the complaint alleged (1) that Dr. Lovett and Dr. Desai misdiagnosed Borger's condition, (2) that Dr. Lovett's conduct fell below the standard of care by performing the wrong surgical procedure, and (3) that the surgical result obtained was deficient. No affidavit of merit accompanied the initial complaint. On March 7, 2003, Borger filed an amended complaint in the matter, which incorporated an affidavit of Dr. Kudisch supporting the allegations against both physicians. At that point, the parties stipulated to stay the district court proceedings until the medical-legal screening panel concluded its prescreening functions.19
After the panel made findings in favor of the defense, Dr. Lovett and Lewis & Lovett, Ltd., d/b/a Desert West Surgery, moved to dismiss Borger's complaint for failure to submit an affidavit of merit by an expert in Dr. Lovett's area of practice — general surgery. Although conceding that Dr. Kudisch's affidavit supported claims against Dr. Desai, both being gastroenterologists, Dr. Lovett argued that Borger's failure to supply an affidavit from a general surgeon mandated dismissal of the action against him.
Borger argued in response that Dr. Kudisch practiced within a discipline substantially similar to that practiced by Dr. Lovett in his assessment, diagnosis and treatment of Borger. Alternatively, Borger sought leave to amend his complaint to comply with NRS 41A.071. In this, Borger attached the affidavit of a general surgeon to his proposed amended complaint.
The district court dismissed the case against Dr. Lovett and his professional corporation and denied Borger's motion to amend, as follows:
The expert in this case Dr. Kudisch is a gastroenterologist. Gastroenterology is not an area that is substantially similar to the type of practice engaged in by [Dr. Lovett] at the time of the alleged malpractice, and therefore the affidavit is insufficient to satisfy the statutory requirement.... [As to the motion to amend] ... [t]he remedy for failure to attach an appropriate supporting affidavit is dismissal without prejudice.
Borger's mandamus petition requests relief from this order.
"A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust, or station, or to control an arbitrary or capricious exercise of discretion."20 A writ of mandamus is not available where the petitioner has a plain, speedy, and adequate remedy at law.21 "Mandamus is an extraordinary remedy, and the decision as to whether a petition will be entertained lies within the sound discretion of this court."22 Because this petition raises important legal issues that are likely to be the subject of extensive litigation in the near term within the Nevada district court system, because inconsistent rulings at that level may likely result, and because avoidance of multiple actions in connection with Borger's claims will conserve judicial resources here and in the district court, we elect to resolve this petition on its merits.23 Affidavit requirements under NRS 41A.071
Although Borger filed his action with the Division of Insurance in June 2002, before the effective date of the newly created legislative scheme, elected to proceed under the repealed system, and supported his case with expert opinions before the screening panel, the parties agree that the affidavit requirements of NRS 41A.071 apply to these proceedings. Borger, however, contends that the district court incorrectly interpreted the language of this statute. We review a district court's conclusions of law, including statutory interpretations, de novo.24
As noted, the special legislative package repealed the former statutory construct under which a panel of doctors and lawyers prescreened medical malpractice complaints. Accordingly, the expert affidavit requirements of NRS 41A.071 are designed to account for the abolition of the screening panels and to ensure that parties file malpractice cases in good faith, i.e., to prevent the filing of frivolous lawsuits.25 In its entirety, NRS 41A.071 provides:
If an action for medical malpractice ... is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.
Dr. Lovett takes a literal approach to this provision, contending...
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