Engelson v. Dignity Health
| Docket Number | 84978-COA |
| Decision Date | 28 December 2023 |
| Citation | 139 Nev.Adv.Op. 58 |
| Parties | GINA ENGELSON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LENORE MEYER, DECEASED, Appellant, v. DIGNITY HEALTH, A FOREIGN NONPROFIT CORPORATION. D/B/A ST. ROSE DOMINICAN HOSPITAL-SIENA CAMPUS; GRAPE HOLDINGS LLC, A FOREIGN LIMITED LIABILITY COMPANY, D/B/A SAGE CREEK POST-ACUTE, Respondents. GINA ENGELSON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LENORE MEYER, DECEASED, Appellant, |
| Court | Nevada Court of Appeals |
1
139 Nev.Adv.Op. 58
GINA ENGELSON, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF LENORE MEYER, DECEASED, Appellant,
v.
DIGNITY HEALTH, A FOREIGN NONPROFIT CORPORATION. D/B/A ST. ROSE DOMINICAN HOSPITAL-SIENA CAMPUS; GRAPE HOLDINGS LLC, A FOREIGN LIMITED LIABILITY COMPANY, D/B/A SAGE CREEK POST-ACUTE, Respondents.
No. 84978-COA
Court of Appeals of Nevada
December 28, 2023
Appeal from a district court order granting motions to dismiss in a professional negligence action. Eighth Judicial District Court, Clark County; Jessica K. Peterson, Judge.
Burris & Thomas, LLC, and Steven M. Bums and Gary Myers, Las Vegas, for Appellant.
Hall Prangle & Schoonveld. LLC, and Kenneth M. Webster and Tyson J. Dobbs, Las Vegas, for Respondent Dignity Health.
Hutchison & Steffen, PLLC, and David J. Mortensen and Candace C. Herling, Las Vegas, for Respondent Grape Holdings LLC.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and WESTBROOK, JJ.
OPINION
WESTBROOK. J.
Complaints for professional negligence must be timely filed within the applicable statute of limitations period, NRS 41A.097(2), and must be supported by an affidavit of merit, NRS 41A.071. When a party suffers an injury or wrongful death caused by professional negligence, NRS 41 A.097(2) provides that the statute of limitations begins to run from the date the plaintiff discovers or should have discovered their legal injury. In the underlying proceeding, the district court dismissed an estate's survivorship claims after finding "irrefutable" evidence that the estate and its special administrator knew or should have known about the relevant legal injury more than a year before filing the complaint.[1]
When appellant moved for reconsideration on grounds that the complaint was timely when the claims were construed as wrongful death claims, the district court denied reconsideration on the basis that her complaint failed to state a claim for wrongful death. The district court also found her affidavit of merit was insufficient to support a wrongful death
claim because it did not establish that professional negligence caused the wrongful death.
We conclude that the district court erred when it dismissed appellant's complaint as time-barred. In doing so, we take this opportunity to clarify that an affidavit of merit need not opine as to the element of causation to support a professional negligence-based wrongful death claim under NRS 41A.071. Therefore, we reverse and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
85-year-old Lenore Meyer was admitted to St. Rose Dominican Hospital-Siena Campus (St. Rose-Siena) in late June 2020. During her stay at St. Rose-Siena, Meyer received treatment for a urinary tract infection, blocked bowels, and a possible Clostridium difficile (C-diff) infection.
On or about July 28, 2020, Meyer transferred to a skilled nursing facility, Sage Creek Post-Acute (Sage Creek), to receive post-treatment rehabilitation. Upon her admission, Sage Creek documented that Meyer had a stage 3 decubitis ulcer, or bedsore, in her sacral region.
Because of COVID-19 pandemic protocols, Meyer's family was unable to visit her at Sage Creek. However, during this time, Meyer apparently called members of her family to report that she was receiving horrible treatment, which included failing to assist her when she needed to go to the bathroom and leaving her to lie in bed in her own feces. Meyer's family reportedly made numerous phone calls to voice their concerns to the charge nurse and nurse manager. Meyer remained at Sage Creek for approximately two weeks before returning to St. Rose-Siena with a recurrence of C-diff and possible sepsis.
When Meyer was readmitted to St. Rose-Siena on August 12, the hospital documented that Meyer's sacral bedsore was now '"huge," "down
to the bone," unstageable, and infected. Meyer remained at St. Rose-Siena for almost a month, until the hospital discharged her on September 4. However, just days later, on September 8, Meyer returned to the hospital due to weakness and altered mental status. At that point, an infectious disease specialist diagnosed Meyer with sepsis, colitis, and pneumonia, and again noted the infected sacral bedsore. On September 10, St. Rose-Siena discharged Meyer to home hospice, where she died four days later.
Exactly one year after Meyer's death, on September 14, 2021, Meyer's daughter Gina Engelson-as special administrator of Meyer's estate-filed a professional negligence complaint against St. Rose-Siena and Sage Creek.[2] Engelson alleged that the nursing care provided by St. Rose-Siena and Sage Creek fell below the standard of care in more than a dozen ways, which included negligence in "[f]ail[ing] to timely and adequately treat skin lesions in order to prevent a preexisting ulcer from getting worse." Engelson alleged that as a "direct and proximate result" of negligence by St. Rose-Siena and Sage Creek, Meyer was "caused to suffer serious bodily injury, including worsened pressure ulcer wounds, infection and great pain of mind and body, loss of a chance of a better outcome, and contributed to her death." Engelson further alleged that, under Nevada law, Meyer's claims and causes of action "survive[d] her death and [could] be prosecuted by the administrator of [her] [e]state." Engelson also alleged that St. Rose-Siena and Sage Creek were "vicariously responsible under the doctrine of respondeat superior . . . for the injuries and death" of Meyer.
Two exhibits were attached to Engelson's complaint: a "Declaration of Expert" made under penalty of perjury by Debbie Marsh, R.N.. which served as an "affidavit of merit,"[3] and an electronic disc containing the medical records and other documentation relied on by Marsh. In her affidavit of merit, Marsh explained that she was familiar with the standard of care for nursing at both hospitals and skilled nursing facilities. She identified specific nurses at St. Rose-Siena and Sage Creek who she believed breached the standard of care in their treatment of Meyer during the summer of 2020. And she identified specific acts of negligence at St. Rose-Siena and Sage Creek that she believed fell below the standard of nursing care. As to St. Rose-Siena, Marsh opined that the hospital negligently allowed Meyer's stage 3 pressure ulcer to develop while failing to document its existence. As to Sage Creek, Marsh opined that its nurses did not meet the standard of care for the prevention, clinical staging, and management of Meyer's pressure-induced soft tissue injuries, which required pressure redistribution, improving skin perfusion, minimizing excess moisture, and turning Meyer every two hours. Although Marsh asserted that the acts of negligence by St. Rose-Siena and Sage Creek "denied Mrs. Meyer a better outcome," she did not offer any opinion that these acts of professional negligence caused Meyer's death.
St. Rose-Siena and Sage Creek moved to dismiss Engelson's complaint pursuant to NRS 41 A.097(2) on the basis that it was filed more than one year after Engelson and/or Meyer discovered or should have discovered the legal injury, which they characterized as Meyer's negligently caused bedsore.[4] To establish that Engelson's complaint was time-barred, St. Rose-Siena and Sage Creek relied on factual statements from Marsh's affidavit of merit, where Marsh summarized the information that she had received from Engelson's attorneys based on their interviews with unnamed members of Meyer's family.
Relying primarily on Marsh's affidavit of merit, St. Rose-Siena argued that, as of July 28, 2020, Engelson and Meyer were on inquiry notice of the Meyer estate's negligence claims against the hospital because that was the date that the stage 3 sacral ulcer was first documented in Meyer's medical records at Sage Creek. Likewise, Sage Creek relied on the Marsh affidavit to argue that Engelson and/or Meyer were on inquiry notice of the estate's potential negligence claims on or before Meyer's discharge from Sage Creek because, after Sage Creek documented the bedsore, Meyer had spoken by phone with her family regarding the allegedly substandard care she was receiving while at Sage Creek.
The district court agreed, finding that Engelson's complaint and the accompanying affidavit of merit established "irrefutable evidence that Plaintiff was aware of her injury on or around August 11, 2020 at the
latest."[5] Because Engelson's complaint was filed more than a year after that date, the court entered an order dismissing Engelson's complaint as time-barred.
Thereafter. Engelson moved for reconsideration, arguing for the first time that, because her complaint alleged wrongful death claims, it was timely filed within one year of her discovery of that legal injury: Meyer's wrongful death. In addition, Engelson reargued that Sage Creek was not a "[p]rovider of health care" as defined in NRS 41A.017 and, therefore, the one-year statute of limitations did not apply to Sage Creek. The district court rejected both arguments.
In its order denying reconsideration, the district court concluded that Engelson's complaint failed to state a wrongful death claim and that her affidavit of merit did not satisfy the requirements of NRS 41 A.071 because it did not support the allegation that professional negligence caused Meyer's death. Additionally, the district court concluded that, regardless of whether Sage Creek was, itself, a "provider of health care" as defined in NRS 41A.017, Engelson's claims against Sage Creek were inextricably linked to the underlying alleged professional negligence of its nurses, and therefore, her claims were subject to the requirements of NRS Chapter 41A. Engelson appeals.
ANALYSIS
St. Rose-Siena's and Sage Creek's motions to dismiss were not converted to motions for summary judgment
St. Rose-Siena and Sage Creek both acknowledge that they sought dismissal under...
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