Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court of Nev., No. 65562.

Docket NºNo. 65562.
Citation376 P.3d 167, 132 Nev. Adv. Op. 53
Case DateJuly 28, 2016
CourtSupreme Court of Nevada

376 P.3d 167
132 Nev.
Adv. Op. 53

HUMBOLDT GENERAL HOSPITAL; and Sharon McIntyre, M.D., Petitioners
v.
The SIXTH JUDICIAL DISTRICT COURT of the State of Nevada, In and for the County of Humboldt; and the Honorable Michael Montero, District Judge, Respondents
and
Kelli Barrett, Real Party in Interest.

No. 65562.

Supreme Court of Nevada.

July 28, 2016.


376 P.3d 169

Pollara Law Group and Dominique A. Pollara, Sacramento, California, for Petitioners.

David Allen & Associates and David Allen, Reno, for Real Party in Interest.

Before the Court En Banc.

OPINION

By the Court, HARDESTY, J.:

NRS 41A.071 requires that a medical expert affidavit be filed with “medical malpractice” claims.1 Real party in interest Kelli Barrett filed a complaint without an expert affidavit against petitioners Humboldt General Hospital and Sharon McIntyre, M.D., that included a battery claim based on an alleged lack of informed consent. In this case, we determine whether a battery claim against a medical provider based on an allegation of lack of informed consent is subject to the NRS 41A.071 medical expert affidavit requirement.

We conclude that allegations raising the scope of informed consent rather than the absence of consent to a medical procedure, even when pleaded as a battery action, constitute medical malpractice claims requiring a medical expert affidavit. Accordingly, because Barrett's complaint raises the scope of informed consent for the medical procedure, but does not allege a complete lack of consent, Humboldt and Dr. McIntyre's motion to dismiss Barrett's battery claim should have been granted. We thus grant the petition.

FACTS AND PROCEDURAL HISTORY

Barrett had an intrauterine device (IUD) surgically implanted by Dr. McIntyre at Humboldt General Hospital. Approximately one year later, Barrett received a letter from Humboldt stating that the IUD was not approved by the Federal Drug Administration (FDA). Her IUD was not FDA approved because it was shipped from Finland to a Canadian pharmacy rather than to a location in the United States. However, the implanted IUD was identical to FDA-approved IUDs and was manufactured at the same plant in Finland.

Barrett filed a complaint without a supporting medical expert affidavit alleging negligence and battery claims against Dr. McIntyre and Humboldt. In her negligence claim, Barrett alleged that Dr. McIntyre and Humboldt “had a duty to provide [her] with care, treatment, medications and medical devices consistent with state and federal law.” And, in her battery claim, Barrett alleged that Dr. McIntyre and Humboldt “knew or reasonably should have known that ... Barrett did not consent to the implantation in [her] body of said IUD which lacked FDA approval.”

Dr. McIntyre and Humboldt moved to dismiss Barrett's complaint based on NRS 41A.071's requirement that an expert affidavit be filed with medical malpractice actions. The district court granted the motion to dismiss the negligence claim, finding that an expert affidavit was required, but denied the motion as to the battery claim, finding that “it does not appear beyond a doubt that” Barrett needed to include an affidavit with her battery claim. Dr. McIntyre and Humboldt then petitioned this court for a writ of mandamus directing the district court to dismiss Barrett's battery complaint under NRS 41A.071.

DISCUSSION

Whether a claim under the informed consent doctrine must be pleaded as a tort action for negligence, rather than as one for battery, is an issue of first impression in Nevada. Because Barrett generally consented to the procedure performed, and the operative facts implicate the scope of informed consent, we conclude that Barrett's battery claim is actually a medical malpractice claim requiring a medical expert affidavit under NRS 41A.071.

Writ of mandamus

“Normally, this court will not entertain a writ petition challenging the denial of a motion to dismiss,” Buckwalter v. Eighth

376 P.3d 170

Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010), but we may do so when “(1) no factual dispute exists and the district court is obligated to dismiss an action pursuant to clear authority under a statute or rule; or (2) an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of granting the petition,” State v. Eighth Judicial Dist. Court, 118 Nev. 140, 147, 42 P.3d 233, 238 (2002). Furthermore, this court may consider writ petitions that present matters of first impression that may be dispositive in the particular case. Otak Nev., LLC v. Eighth Judicial Dist. Court, 129 Nev. ––––, ––––, 312 P.3d 491, 496 (2013).

Here, there is no factual dispute regarding the absence of an expert medical affidavit filed with the complaint. Further, this case presents an important issue of law concerning the right to pursue a battery claim in a medical malpractice action that implicates the scope of informed consent. Because this issue is likely to recur, as evidenced by other writ petitions filed with this court seeking similar relief, and may be dispositive of the pending case, we exercise our discretion to entertain the merits of this writ petition.

Expert affidavit requirement in medical malpractice claims

The issues raised in this case present purely legal questions, primarily regarding statutory construction, so we conduct a de novo review. Zohar v. Zbiegien, 130 Nev. ––––, ––––, 334 P.3d 402, 405 (2014). “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.” NRS 41A.071 ;2 see also Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1306, 148 P.3d 790, 795 (2006) ( “We conclude that when a plaintiff has failed to meet NRS 41A.071's expert affidavit requirement, the complaint is void ab initio and must be dismissed, without prejudice, and no amendment to cure an NRS 41A.071 defect is allowed.”). NRS 41A.009 (1985) defines “[m]edical malpractice” as “the failure of a physician [or] hospital ... in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances.”

Initially, we examine whether informed consent issues generally constitute medical malpractice, such that NRS 41A.071 requires a medical expert affidavit to be filed with a complaint. Next, we consider whether a battery claim can be maintained when the claim arises out of a lack of consent.

Issues of informed consent typically constitute medical malpractice claims

NRS Chapter 41A governs medical malpractice actions in Nevada. Within that statutory scheme,...

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18 practice notes
  • Lawrence v. Las Vegas Metro. Police Dep't, Case No. 2:16-cv-03039-RFB-NJK (
    • United States
    • U.S. District Court — District of Nevada
    • 31 Marzo 2020
    ...dog bite were harmful intentional contacts to which Childress did not consent. Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 132 Nev. 544, 376 P.3d 167, 171 (2016) ("A battery is an intentional and offensive touching of a person who has not consented to the touching."). To establish negligen......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...and considerations of judicial economy support its review. Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court , 132 Nev. 544, 547, 376 P.3d 167, 170 (2016).Scott's writ petition raises a legal issue of first impression with statewide importance—the disqualification standard where the alleged......
  • Canarelli v. The Eighth Judicial Dist. Court of the State, 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...and considerations of judicial economy support its review. Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. 544, 547, 376 P.3d 167, 170 (2016). Scott's writ petition raises a legal issue of first impression with statewide importance-the disqualification standard where the alleged......
  • Szymborski v. Spring Mountain Treatment Ctr., No. 66398
    • United States
    • Nevada Supreme Court of Nevada
    • 26 Octubre 2017
    ...Villa Nursing Centre, 471 Mich. 411, 684 N.W.2d 864, 872 (2004) ; Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. ––––, 376 P.3d 167, 172 (2016) (reasoning that a medical expert affidavit was required where the scope of a patient's informed consent was at issue, because medical ......
  • Request a trial to view additional results
18 cases
  • Lawrence v. Las Vegas Metro. Police Dep't, Case No. 2:16-cv-03039-RFB-NJK (
    • United States
    • U.S. District Court — District of Nevada
    • 31 Marzo 2020
    ...dog bite were harmful intentional contacts to which Childress did not consent. Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 132 Nev. 544, 376 P.3d 167, 171 (2016) ("A battery is an intentional and offensive touching of a person who has not consented to the touching."). To establish negligen......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...and considerations of judicial economy support its review. Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court , 132 Nev. 544, 547, 376 P.3d 167, 170 (2016).Scott's writ petition raises a legal issue of first impression with statewide importance—the disqualification standard where the alleged......
  • Canarelli v. The Eighth Judicial Dist. Court of the State, 82299
    • United States
    • Nevada Supreme Court of Nevada
    • 24 Marzo 2022
    ...and considerations of judicial economy support its review. Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. 544, 547, 376 P.3d 167, 170 (2016). Scott's writ petition raises a legal issue of first impression with statewide importance-the disqualification standard where the alleged......
  • Szymborski v. Spring Mountain Treatment Ctr., No. 66398
    • United States
    • Nevada Supreme Court of Nevada
    • 26 Octubre 2017
    ...Villa Nursing Centre, 471 Mich. 411, 684 N.W.2d 864, 872 (2004) ; Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court, 132 Nev. ––––, 376 P.3d 167, 172 (2016) (reasoning that a medical expert affidavit was required where the scope of a patient's informed consent was at issue, because medical ......
  • Request a trial to view additional results

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