Mountainview Hosp., Inc. v. Eighth Judicial Dist. Court of Nevada

• Decision Date: 05 April 2012
• Docket Number: No. 57502.,57502.
• Citation: 273 P.3d 861,128 Nev. Adv. Op. 17
• Parties: MOUNTAINVIEW HOSPITAL, INC.; Jason E. Garber, M.D.; and Jason E. Garber, M.D., Ltd., Petitioners, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Stefany Miley, District Judge, Respondents,andLaura Rehfeldt; and Edward Rehfeldt, Real Parties in Interest.
• Court: Nevada Supreme Court

128 Nev. Adv. Op. 17
273 P.3d 861

MOUNTAINVIEW HOSPITAL, INC.; Jason E. Garber, M.D.; and Jason E. Garber, M.D., Ltd., Petitioners,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, in and for the COUNTY OF CLARK; and the Honorable Stefany Miley, District Judge, Respondents,andLaura Rehfeldt; and Edward Rehfeldt, Real Parties in Interest.

No. 57502.

Supreme Court of Nevada.

April 5, 2012.

[273 P.3d 862]

Hall Prangle & Schoonveld, LLC, and John F. Bemis, Kenneth M. Webster, and Michael T. Koptik, Las Vegas, for Petitioner Mountain View Hospital, Inc.

Lewis Brisbois Bisgaard & Smith, LLP, and Keith A. Weaver and Michael J. Shannon, Las Vegas, for Petitioners Jason E. Garber, M.D.; and Jason E. Garber, M.D., Ltd.

Roger P. Croteau & Associates, Ltd., and Roger P. Croteau and Timothy E. Rhoda, Las Vegas, for Real Parties in Interest.BEFORE DOUGLAS, HARDESTY and PARRAGUIRRE, JJ.

[273 P.3d 863]

OPINION By the Court, HARDESTY, J.:

In this petition for extraordinary writ relief, we are asked to consider whether a plaintiff has complied with the affidavit requirement in a medical malpractice action when a medical expert's opinion letter attached to the plaintiff's complaint does not include a jurat,¹ and there is no declaration from the medical expert in either the opinion letter or a notary acknowledgment declaring that the statements contained in the opinion letter are made under penalty of perjury.

We conclude that the absence of a properly executed jurat does not render a medical expert's written statement insufficient to meet the affidavit requirement of NRS 41A.071. Because a jurat is merely evidence that the medical expert swore under oath to the veracity of his or her statement before an officer authorized to administer oaths, it is clear that other evidence that the expert's written statement was made under oath can be offered to satisfy NRS 41A.071's affidavit requirement.

FACTS AND PROCEDURAL HISTORY

Real parties in interest Laura and Edward Rehfeldt filed a complaint for medical malpractice, among other claims, alleging that Laura contracted a Methicillin–resistant Staphylococcus aureus (MRSA) and went into septic shock after undergoing elective back surgery at MountainView Hospital. Because Laura tested negative for being colonized with or a carrier for MRSA prior to the surgery, the Rehfeldts asserted that petitioners MountainView Hospital, Jason E. Garber, M.D., and Jason E. Garber, M.D., Ltd. (collectively, MountainView) ² committed medical malpractice by failing to provide a clean and sterile hospital environment and failing to properly care for Laura.

Accompanying their complaint for medical malpractice, and at issue in this case, was an opinion letter from Dr. Bernard T. McNamara supporting the Rehfeldts' claim, with a “California All–Purpose Acknowledgment” form attached to the letter. Neither the opinion letter nor the acknowledgment contained any statement that Dr. McNamara swore under oath that the statements contained in his letter were true and correct, and neither the opinion letter nor the acknowledgment contained a declaration from Dr. McNamara declaring that his statements were made under penalty of perjury. The acknowledgment was prepared by a California notary public and stated as follows:

On 12/15/08 before me, Sandra Ferrer Notary Public, personally appeared Bernard T. McNamara, who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

The notary public signed the acknowledgment and affixed her notary stamp; however, Dr. McNamara signed only his letter. The Rehfeldts filed an amended complaint attaching the same opinion letter from Dr. McNamara and notary acknowledgment, and included a similar letter from a nurse, Mary Wyckoff. ³

Dr. Garber responded to the Rehfeldts' amended complaint by filing a motion to dismiss, which MountainView Hospital joined. Dr. Garber argued that NRS 41A.071 requires a supporting medical expert

[273 P.3d 864]

affidavit to be attached to a medical malpractice complaint, and that Dr. McNamara's opinion letter and the notary acknowledgment failed to satisfy that requirement. Without specifically discussing the statute's affidavit requirement, the district court entered a written order summarily denying Dr. Garber's motion to dismiss.

The case was subsequently reassigned to a different department in the district court, and MountainView Hospital filed a second motion to dismiss, reasserting Dr. Garber's argument that the Rehfeldts failed to comply with the affidavit requirement of NRS 41A.071. Dr. Garber joined in the motion. According to MountainView Hospital, the district court verbally denied its second motion at a hearing, “alleging that [the previous judge] had already ruled that [the Rehfeldts'] letter from Dr. McNamara was the equivalent of an affidavit.” However, a written order denying MountainView Hospital's second motion to dismiss was never filed in the district court.⁴ MountainView Hospital and Dr. Garber then filed the instant petition for a writ of mandamus or prohibition.⁵

DISCUSSION

This court has original jurisdiction to issue writs of mandamus and prohibition. Nev. Const. art. 6, § 4. Whether extraordinary writ relief will issue is solely within this court's discretion. Walters v. Dist. Ct., 127 Nev. ––––, ––––, 263 P.3d 231, 233 (2011). “A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion.” We the People Nevada v. Secretary of State, 124 Nev. 874, 879, 192 P.3d 1166, 1170 (2008); NRS 34.160. “A writ of prohibition ... is available when a district court acts without or in excess of its jurisdiction.” International Game Tech. v. Dist. Ct., 122 Nev. 132, 142, 127 P.3d 1088, 1096 (2006); NRS 34.320. Generally, an extraordinary writ may only be issued in cases “where there is not a plain, speedy and adequate remedy” at law. NRS 34.170; NRS 34.330. In addition, consideration of extraordinary writ relief is often justified “ ‘where an important issue of law...