Homsi v. The Heights of Summerlin, LLC

• Docket Number: 85162-COA
• Decision Date: 28 June 2023
• Parties: MHD AD NAN HOMSI, AN INDIVIDUAL. Appellant, v. THE HEIGHTS OF SUMMERLIN, LLC, A FOREIGN LIMITED LIABILITY COMPANY; AND BQ OPERATIONS HOLDINGS, LLC, A FOREIGN LIMITED LIABILITY COMPANY, Respondents.
• Court: Court of Appeals of Nevada

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MHD AD NAN HOMSI, AN INDIVIDUAL. Appellant, v. THE HEIGHTS OF SUMMERLIN, LLC, A FOREIGN LIMITED LIABILITY COMPANY; AND BQ OPERATIONS HOLDINGS, LLC, A FOREIGN LIMITED LIABILITY COMPANY, Respondents.

No. 85162-COA

Court of Appeals of Nevada

June 28, 2023

UNPUBLISHED OPINION

ORDER OF REVERSAL AND REMAND

Gibbons, C.J.

Mhd Adnan Horn si appeals from a district court order dismissing a tort action pursuant to NRCP 12(b)(5) for failure to file a medical expert affidavit of merit as required by NRS 41A.071. Eighth Judicial District Court, Clark County; Jessica K Peterson, Judge.

Homsi sued respondents The Heights of Summerlin, LLC and BQ Operations Holdings, LLC (collectively referred to as the Heights), for ordinary negligence and other related claims.^[1] He did not allege any claims for professional negligence, nor did he attach a medical expert affidavit as required by NRS 41A.071. In his complaint, Homsi generally alleged that within hours of being admitted to the Heights' facility, he was left alone with no fall precautions in place and subsequently fell. Homsi additionally alleged that the Heights "knew or should have known that [he] was a fall risk," that the Heights "failed to provide adequate fall protection to [ ] Homsi" and that its "failure to provide adequate fall protection fell below the reasonable and accepted standard of care in the Clark County, Nevada community."

The district court granted the Heights' motion to dismiss Homsi's complaint with prejudice^[2], finding that his claims sounded in professional negligence, as opposed to ordinary negligence, and that because Homsi failed to support his claims with a medical expert affidavit as required by NRS 41A.071, dismissal under NRCP 12(b)(5) was appropriate.^[3] The district court also denied Homsi's request for leave to amend his complaint to make further allegations to support his claim for ordinary negligence. This appeal followed.

On appeal, Homsi contends the district court erred in dismissing his complaint because his claims sounded in ordinary negligence and not professional negligence because he satisfied the common knowledge exception to the requirements of NRS 41A.071. Specifically, Homsi argues that the Heights knew or should have known that fall precautions were required for a patient admitted to its facility. And a jury based on its common knowledge and experience could find the Heights' failure to enact any fall precautions whatsoever would render it liable under an ordinary negligence theory without the need of a medical expert opinion. Additionally Homsi argues that the district court erred in denying his request for leave to amend his complaint to make further allegations to support his ordinary negligence claim.

Standard of review

This court reviews a district court order dismissing a complaint pursuant to NRCP 12(b)(5) de novo. Porchia v. City of Las Vegas, 138 Nev., Adv. Op. 4, 504 P.3d 515, 518 (2022). Similarly, this court reviews a district court's decision to dismiss a complaint for failing to comply with NRS 41A.071 de novo. Yafchak v. S. Las Vegas Med. Invs., LLC, 138 Nev., Adv.Op. 70, 519 P.3d 37, 40 (2022). This court will only affirm a district court's order to dismiss "if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him] to relief." Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008). Further, "when a defendant moves to dismiss a plaintiffs complaint for failure to comply with NRS 41A.071, the burden is on the defendant to demonstrate the plaintiffs allegations arise under NRS Chapter 41 A." Yafchak, 138 Nev., Adv. 70, 519 P.3d at 40. When reviewing a motion to dismiss, "this court will recognize all factual allegations in [the plaintiffs] complaint as true and draw all inferences in [his] favor." Buzz Stew, LLC, 124 Nev. at 228, 181 P.3d at 672.

The district court erred in dismissing Homsi's complaint pursuant to NRCP 12(b)(5)

"The distinction between professional and ordinary negligence can be subtle, and [a court must] look to the 'gravamen or substantial point or essence' of each claim to make the necessary determination." Estate of Curtis v. S. Las Vegas Med. Inu'rs, LLC, 136 Nev. 350, 354, 466 P.3d 1263, 1267 (2020) (quoting Szymborski v. Spring Mountain Treatment Ctr., 133 Nev. 638, 642-43, 403 P.3d 1280, 1285 (2017)). "Allegations of breach of duty involving medical judgment, diagnosis, or treatment indicate that a claim is for [professional negligence]." Szymborski, 133 Nev. at 642, 403 P.3d at 1284. "[I]f the jury can only evaluate the plaintiffs claims after presentation of the standards of care by a medical expert, then it is a [professional negligence] claim." Id. "If, on the other hand, the reasonableness of the health care provider's actions can be evaluated by jurors on the basis of their common knowledge and experience, then the claim is likely based in ordinary negligence." Id. at 642, 403 P.3d at 1285.

This is referred to as a common knowledge exception to the medical affidavit requirement.

To apply the common knowledge exception,

[a] court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or [professional negligence]: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.

Estate of Curtis, 136 Nev. at 356, 466 P.3d at 1268 (second alteration in original) (quoting Bryant v Oakpointe Villa Nursing Ctr., Inc., 684 N.W.2d 864, 871 (Mich. 2004)). "If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern [professional negligence] actions." Id. (alteration in original) (quoting Bryant, 684 N.W.2d at 871). However, we note that the common knowledge exception "is extremely narrow and only applies in rare situations." Id. Following the Estate of Curtis decision, the supreme court and this court have determined in various unpublished dispositions whether certain allegations sounded in ordinary negligence or professional negligence. See most notably Conlin v. Southwest Med. Assocs., Inc., No. 84205, 2023 WL 3142540 (Nev. April 27, 2023) (Order of Reversal and Remand) (determining that a woman that fell off a raised examination table at the conclusion of her...