Fierle v. Perez
| Decision Date | 19 November 2009 |
| Docket Number | No. 49602.,49602. |
| Citation | 219 P.3d 906 |
| Parties | Patricia FIERLE and Daniel Fierle, Husband and Wife, Appellants, v. Jorge PEREZ M.D., Ltd., A Nevada Professional Corporation, d/b/a Sierra Nevada Oncology Care; Jorge Perez, M.D., Ph.D., MRCP, MRCPATH, An Individual; Linda Lesperance, R.N., APN-C, An Individual; Charmaine Cruet, R.N., APN-C, An Individual; and Melissa Mitchell, R.N., An Individual, Respondents. |
| Court | Nevada Supreme Court |
Lemons, Grundy & Eisenberg and Alice Campos Mercado and Edward J. Lemons, Reno, for Respondents Perez and Mitchell.
Before the Court En Banc.
Appellants Patricia Fierle and her husband, Daniel Fierle, filed a complaint against Dr. Jorge Perez, members of his staff, and his professional medical corporation. The complaint stemmed from an incident where Patricia suffered severe burns from chemotherapy treatment that Dr. Perez's staff administered. After initially failing to attach an expert affidavit to the complaint, the Fierles then filed a first amended complaint with an attached medical expert's affidavit. On respondents' motion, the district court dismissed the complaint in full and struck the first amended complaint. The Fierles then filed a motion for relief pursuant to NRCP 52(b), 59(e), and 60(b), which was denied. The Fierles now appeal.
This appeal involves mainly issues of first impression regarding the applicability of NRS 41A.071 to professional medical corporations in medical malpractice actions and nurses and nurse practitioners in professional negligence actions; and whether medical malpractice and professional negligence claims made in the complaint that are void ab initio because no expert affidavit is attached may be cured by the amendment of the complaint regardless of whether other claims in the original complaint survive.
We conclude that an expert affidavit is required for medical malpractice actions against professional medical corporations and professional negligence actions against nurses and nurse practitioners under NRS 41A.071, and therefore, we conclude that the district court did not err in dismissing the Fierles' complaint with regard to such claims. Additionally, we conclude that the district court erred in dismissing the negligent extravasation claim against one member of Dr. Perez's staff because that claim falls under the res ipsa loquitur statutory exception to NRS 41A.071 and, therefore, is not required to be supported by an expert medical affidavit. We further conclude that medical malpractice and professional negligence claims made in a complaint that become void ab initio for lack of the attachment of an expert affidavit may not be cured by the amendment of that complaint, regardless of whether other claims in the original complaint survive.
In July 2005, Patricia was diagnosed with breast cancer. She then underwent a mastectomy. In addition to the mastectomy, a catheter was also surgically placed in Patricia's chest wall for the infusion of chemotherapy medications. In this procedure, the catheter is surgically attached to the tissue under the skin, and a second part of the catheter is placed into the subclavian vein. Once surgically inserted, the catheter can be accessed via needle to inject chemotherapy medications into the patient's subclavian vein.
Patricia then became a patient of Dr. Perez and his employees, registered nurse Melissa Mitchell and nurse practitioners Charmaine Cruet and Linda Lesperance, for the administration of her chemotherapy. The Fierles allege that on Patricia's third visit to Dr. Perez's office, Mitchell's administration of the chemotherapy medications did not infuse into the catheter but instead infused into her tissue, causing a subcutaneous burn called an "extravasation." Patricia alleges that she complained of pain but respondents failed to give her medical attention. A day later, on September 16, 2005, Patricia was referred to a radiologist after a nurse in Dr. Perez's office noted redness and swelling of Patricia's chest. An ultrasound revealed that the catheter tip was not in the subclavian vein but had coiled in the tissues.
Within two weeks of the alleged extravasation, Patricia sought treatment from another doctor. That doctor in turn referred her to yet another doctor, Dr. Miercort, for further treatment. In Dr. Miercort's January 17, 2007, affidavit attached to appellants' amended complaint, Dr. Miercort opined that when he began treating Patricia, he believed that "negligent extravasation" had occurred. Dr. Miercort referred Patricia to U.C. Davis Medical Center, where Patricia was diagnosed with "a severe extravasation of chemotherapy over the right shoulder and subclavian region."
The Fierles filed a complaint in district court on September 14, 2006, alleging, among other claims, medical malpractice stemming from chemotherapy treatment for Patricia's breast cancer. In their first claim, the Fierles alleged that Mitchell failed to use due care in the administration of the chemotherapy and that negligence caused Patricia to be burned with epirubicin.1 Additionally, the Fierles alleged that Dr. Perez, Lesperance, and Cruet were negligent in the training and supervision of Mitchell. In their second claim, the Fierles alleged loss of consortium relating to Daniel's loss as a result of Patricia's injuries.2 In their third and final claim, the Fierles alleged "Willful Failure to Provide Treatment and Constructive Fraud" against Dr. Perez and Jorge Perez M.D., Ltd. Subsequently, upon realizing that an expert affidavit may be required, the Fierles filed an amended complaint with an affidavit from Dr. Miercort attached.
Jorge Perez M.D., Ltd., Dr. Perez, and Mitchell (collectively, Perez respondents) moved to dismiss the Fierles' complaint. The Perez respondents' motion to dismiss relied on the fact that the Fierles failed to file the original complaint with an accompanying expert affidavit, as required under NRS 41A.071. Further, the Perez respondents moved to strike the amended complaint based upon our decision in Washoe Medical Center v. District Court, 122 Nev. 1298, 1300, 148 P.3d 790, 792 (2006) (). Cruet and Lesperance joined in the motion to dismiss and motion to strike the first amended complaint.
The district court granted the motion to dismiss and the motion to strike and found that the Fierles' allegations did not fall under NRS 41A.100(1)(c), Nevada's codification of the res ipsa loquitur doctrine, because the allegations "are not matters of common knowledge to a layperson, but instead must be established by a medical expert." As such, the district court dismissed the Fierles' complaint and struck the amended complaint under NRS 41A.071 because the original complaint was filed without a supporting expert medical affidavit.
Thereafter, the Fierles filed a motion to alter or amend the findings of fact, conclusions of law, and judgment, pursuant to NRCP 52(b) and 59(e), and for relief from judgment, pursuant to NRCP 60(b). The motion purported to reveal newly discovered evidence that Dr. Perez concealed and withheld medical records. In support of this motion, the Fierles attached two affidavits: a second one from Dr. Miercort and one from registered nurse Rhonda Uhart, an employee of the oncologist who took over Patricia's treatment following her injury at Dr. Perez's office. Uhart and Dr. Miercort attested that Dr. Perez's office withheld records when requested by their respective offices. The district court denied the motion.3 This appeal follows.
Standard of review
Here, the district court's dismissal of this case stemmed from its interpretation and application of statutes. This court reviews a district court's statutory construction determinations de novo. Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 579, 97 P.3d 1132, 1135 (2004); Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003).
NRS 41A.071 applies to professional medical corporations
We first consider whether NRS 41A.071 applies to professional medical corporations. We conclude that it does.
The expert affidavit provision of the medical malpractice statutes, NRS 41A.071, provides:
If an action for medical malpractice or dental 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.
NRS 41A.009 defines medical malpractice as "the failure of a physician, hospital or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances." Appellants argue that under these statutes an affidavit from a medical expert is not required in suits against a professional medical corporation.
While we acknowledge that the statutory definition for medical malpractice refers to a physician and not to a professional medical corporation, NRS 89.060 and 89.220 make clear that when dealing with a medical malpractice claim against professional entities and professional associations, no statute alters the personal liability of a physician in those claims. NRS 89.060(1) provides that:
The provisions of this chapter relating to professional entities do not modify any law applicable to the relationship between a person furnishing professional service and a person receiving such service, including liability arising out of such...
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