Chowdhry v. NLVH, Inc.

• Decision Date: 07 May 1993
• Docket Number: No. 21344,21344
• Citation: 851 P.2d 459,109 Nev. 478
• Parties: Bashir A. CHOWDHRY, M.D., Appellant, v. NLVH, INC., a Nevada corporation, dba Community Hospital of North Las Vegas, Sally Lapica, Special Administratrix of the Estate of Andrew Lapica, M.D., Deceased, Marian Dreihaupt, Special Administratrix of the Estate of Lawrence Wilchins, M.D., Deceased, Frank Silver, M.D., Charles W. Moore, and American Health Care Management Home Care, Inc., a Texas corporation, Respondents.
• Court: Nevada Supreme Court

Page 459

851 P.2d 459

109 Nev. 478

Bashir A. CHOWDHRY, M.D., Appellant, v. NLVH, INC., a Nevada corporation, dba Community Hospital of

North Las Vegas, Sally Lapica, Special Administratrix of the

Estate of Andrew Lapica, M.D., Deceased, Marian Dreihaupt,

Special Administratrix of the Estate of Lawrence Wilchins,

M.D., Deceased, Frank Silver, M.D., Charles W. Moore, and

American Health Care Management Home Care, Inc., a Texas

corporation, Respondents.

No. 21344.

Supreme Court of Nevada.

May 7, 1993.

Gentile, Porter & Kelesis, Las Vegas, for appellant.

Barker, Gillock, Koning & Brown and Bruce S. Kickinson, Las Vegas, for respondent Sally Lapica.

Alverson, Taylor, Mortensen & Nelson and Daniel E. Curriden, Las Vegas, for respondents NLVH, Inc., Marian Dreihaupt, Frank Silver, Charles W. Moore and American Health Care Management Home Care, Inc.

OPINION

PER CURIAM:

FACTS

The incident which precipitated this litigation occurred in the early morning hours of October 2, 1985. Shortly after midnight, a young woman entered the emergency room of the respondent hospital North Las Vegas Hospital ("NLVH"), complaining of chest pain and shortness of breath. She was seen by respondent Andrew Lapica, the emergency physician on duty. Lapica diagnosed the patient as suffering from a possible pneumohemothorax ¹ which required the placement of a chest tube to drain accumulated fluids. Lapica contacted appellant Dr. Bashir A. Chowdhry, a physician who had performed recent surgery on the young woman and who was also the on-call thoracic surgeon at NLVH. Lapica told Chowdhry that his services were required at NLVH. However, the details of the ensuing conversation are disputed.

The record reveals that Chowdhry refused to return to NLVH to treat the patient because he had recently left there, and would only treat her if she were transferred to University Medical Center ("UMC") (then known as Southern Nevada Memorial Hospital) or Humana Sunrise Hospital ("Sunrise"). Chowdhry testified that he could not tend to the patient at NLVH because of a conflicting emergency at UMC; however, Chowdhry admittedly failed to inform anyone at NLVH of this conflict.

Having received no assurances from Chowdhry that he would return to NLVH, Lapica contacted NLVH's Chief of Staff, respondent Lawrence Wilchins. ² Lapica related the events to Wilchins, stating in particular that Chowdhry refused to come to NLVH and attend to his patient. Lapica then sought Wilchins' advice on how to proceed. Both physicians concluded that if the patient could be safely transported to Sunrise, the transfer should be effected so she could be treated by Chowdhry.

Lapica contacted the emergency room doctor at Sunrise, explained the nature and basis of the problem, and received permission to transfer the patient. The patient was ultimately transported to Sunrise, where she was treated by Chowdhry.

Lapica and Barbara Crow, the supervising nurse at NLVH, prepared incident reports detailing the morning's events and submitted them to the hospital administrator In response to Chowdhry's request, a hearing was held before the Medical Executive Committee on November 1, 1985. As a result of the hearing, Chowdhry's staff privileges were reinstated, but a reprimand was placed in his file for jeopardizing himself, the patient and the hospital. NLVH denied Chowdhry's subsequent request to have the reprimand expunged from his record, thus prompting Chowdhry to file the instant action.

respondent Charles Moore. On the following day, October 3, 1985, Moore informed respondent Frank Silver, then Chief of Surgery, that Chowdhry had refused to come to the NLVH emergency room to treat his patient, and insisted on her transfer to Sunrise. Thereafter, the matter was directed to the NLVH Surgery Committee, which recommended summary suspension of Chowdhry's hospital privileges. A letter to that effect was sent to Chowdhry on October 3, 1985, and Chowdhry received notification of the complaint and suspension on October 4, 1985.

Chowdhry's complaint alleged, inter alia, theories of liability based upon negligence, breach of contract, conspiracy, defamation and negligent and intentional infliction of emotional distress. His claims were premised upon an implied charge of patient abandonment and the manner in which NLVH conducted the disciplinary proceedings. Chowdhry sought compensatory and punitive damages and expungement of the suspension and reprimand from his file.

Prior to the commencement of trial, the district court excluded certain evidence pertaining to Lapica. At the close of Chowdhry's case in chief, the district court dismissed the claim for punitive damages. After the close of the evidence, directed verdicts were granted eliminating Chowdhry's claims for defamation and infliction of emotional distress. On Chowdhry's remaining claims for negligence, breach of contract and conspiracy, the jury found that NLVH, Moore and Silver were collectively 30 percent negligent, that NLVH violated its bylaws, that there was no conspiracy, and that Chowdhry had not abandoned his patient. Concluding that Chowdhry had no reasonable basis for bringing the action, the district court awarded $209,376 in attorney's fees and $69,835 in costs to NLVH, Silver, Moore and Wilchins. Lapica was awarded $47,566 in attorney's fees and $9,428 in costs. This appeal followed.

DISCUSSION

On appeal, Chowdhry raises the following contentions: (1) that the district court erred in dismissing his defamation, punitive damage and infliction of emotional distress claims; (2) that the district court erred in excluding evidence concerning Lapica's employment history; and (3) that the district court erroneously awarded respondents attorney's fees.

A. Involuntary Dismissal of Chowdhry's Claims

Chowdhry's punitive damage claim was dismissed pursuant to NRCP 41(b). Directed verdicts were entered pursuant to NRCP 50(a) against Chowdhry's defamation and infliction of emotional distress claims.

A motion for involuntary dismissal of an action may be made after the close of plaintiff's case "on the ground that upon the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury." NRCP 41(b). In ruling on a 41(b) motion, a court must accept the plaintiff's evidence as true, draw all permissible inferences in the plaintiff's favor, and not assess the credibility of the witnesses or the weight of the evidence. Nevada Indus. Dev., Inc. v. Benedetti, 103 Nev. 360, 362, 741 P.2d 802, 804 (1987) (citations omitted). To defeat a 41(b) motion, the plaintiff must present a prima facie case upon which relief may be granted. Id. at 362-63, 741 P.2d at 804.

NRCP 50(a) provides that a motion for directed verdict shall be denied "[i]f the evidence is sufficient to sustain a verdict for the opponent." Stated differently, "[a] directed verdict is proper only in those instances where the evidence is so overwhelming for one party that any other verdict would be contrary to the law." Bliss v. DePrang, 81 Nev. 599, 602, 407 Mindful of these principles, we now address the propriety of the district court's rulings.

P.2d 726, 727-28 (1965). On a motion for a directed verdict, the district court must view the evidence and all inferences therefrom in a light most favorable to the non-moving party. Broussard v. Hill, 100 Nev. 325, 327, 682 P.2d 1376, 1377 (1984). The same standard applies on appellate review. Bliss, 81 Nev. at 601, 407 P.2d at 727.

1. Infliction of Emotional Distress

We have not previously had occasion to decide whether a plaintiff may recover for negligent infliction of emotional distress for negligent acts committed directly against the plaintiff. In State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985), we first recognized a cause of action for negligent infliction of emotional distress where a bystander suffers "serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant." 101 Nev. at 718, 710 P.2d at 1379. The "physical impact" requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff. See, e.g., Rowland v. Union Hills Country Club, 157 Ariz. 301, 757 P.2d 105 (Ct.App.1988); Evans v. Twin Falls County, 118 Idaho 210, 796 P.2d 87 (1990), cert. denied 498 U.S. 1086, 111 S.Ct. 960, 112 L.Ed.2d 1048 (1991); and Allen v. Otis Elevator Co., 206 Ill.App.2d 173, 150 Ill.Dec. 699, 563 N.E.2d 826 (1990), appeal denied, 141 Ill.2d 535, 162 Ill.Dec. 481, 580 N.E.2d 107 (1991). In the context of intentional infliction of emotional distress, we have stated that "[t]he less extreme the outrage, the more appropriate it is to require evidence of physical injury or illness from the emotional distress." Nelson v. City of Las Vegas, 99 Nev. 548, 555, 665 P.2d 1141, 1145 (1983).

In the present case, Chowdhry's emotional distress claims are premised upon respondents' accusations of patient abandonment. Chowdhry testified that as a result, "he was very upset" and could not sleep. Insomnia and general physical or emotional discomfort are insufficient to satisfy the physical impact requirement. See Hopkins v. State, 237 Kan. 601, 702 P.2d 311, 320-21 (1985). No other evidence was presented of serious emotional distress or physical injury or illness. Moreover, the evidence failed to demonstrate the existence of extreme or outrageous conduct or intent to cause severe emotional distress. See Nelson, 99 Nev. at 555, 665 P.2d at 1145. In short, Chowdhry failed, as a matter of law, to present sufficient evidence to sustain verdicts for negligent or intentional infliction of emotional distress. Therefore, the district court properly granted directed verdicts on these claims.

2. Defamation

Chowdhry contends that respondents made several statements charging him with patient abandonment and insists that these statements are defamatory per se...