Phelps v. Second Judicial Dist. Court, In and For County of Washoe, 21561

• Decision Date: 27 December 1990
• Docket Number: No. 21561,21561
• Citation: 106 Nev. 917,803 P.2d 1101
• Parties: Anne PHELPS, Armen Phelps and Annette Griffith, individually, and Anne Phelps, as personal representative of the Estate of Arthur E. Phelps, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF WASHOE, Department Two, and the Honorable Charles M. McGee, District Judge, Respondents, and Donald A. SPRING, M.D., Real Party in Interest.
• Court: Nevada Supreme Court

Page 1101

803 P.2d 1101

106 Nev. 917

Anne PHELPS, Armen Phelps and Annette Griffith,

individually, and Anne Phelps, as personal

representative of the Estate of Arthur

E. Phelps, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF WASHOE, Department Two, and the Honorable Charles M. McGee,

District Judge, Respondents,

and

Donald A. SPRING, M.D., Real Party in Interest.

No. 21561.

Supreme Court of Nevada.

Dec. 27, 1990.

Dale L. Sare & Associates and William B. Cherry, South Lake Tahoe, Cal., for petitioners.

Brian McKay, Atty. Gen. and James C. Smith, Deputy, Carson City, and Hibbs, Roberts, Lemons & Grundy, Reno, for respondents.

Osborne, Jenkins & Gamboa, Chtd., Reno, for real party in interest.

OPINION

PER CURIAM:

This original petition for a writ of prohibition challenges an order of the district court declaring that the affidavit of petitioners' medical expert cannot be presented to the joint medical legal screening panel, and enjoining members of the joint medical legal screening panel and other state officials from considering the affidavit of petitioners' medical expert. Because we conclude that the district court was without jurisdiction to enjoin the action of the medical legal screening panel, we grant this petition.

On December 22, 1989, petitioners filed with the joint medical legal screening panel ("screening panel") a complaint for the wrongful death of Arthur E. Phelps. Real party in interest Donald A. Spring, M.D., was a named defendant in that complaint. The complaint alleged that the medical malpractice of Spring and others caused Phelps' death. Attached to the complaint was a letter informing all defendants and the screening panel that petitioners intended to rely on the expert testimony of Dr. Dennis R. Breen, a cardiologist from Sacramento, California. The letter informed the defendants of Breen's telephone number. In their answer to the complaint, defendants specifically referred to Breen as the "Sacramento Cardiologist." Petitioners attached to their response to defendants' answer the affidavit of Breen, in which Breen opines that Phelps' death resulted from the defendants' negligence.

On May 2, 1990, the defendants filed with the Insurance Commissioner, under whose authority the screening panel operates, a motion to strike the affidavit of Breen. This motion was premised on the incorrect assumption that NRS 41A.039(4) and NAC 41A.050 preclude a claimant in a medical malpractice action from submitting the affidavit of a medical expert in his response to the defendant's answer. ¹ The Insurance Commissioner denied the motion to strike, finding that he lacked jurisdiction to strike documents submitted to the screening panel, and that it was the sole right of the screening panel to consider or disregard the pleadings submitted to it.

Spring then petitioned the district court for judicial review of the decision of the Insurance Commissioner. Having later concluded that the remedy of judicial review was not available to him, Spring filed in the district court a complaint for declaratory and injunctive relief on September 26, 1990. The complaint named only Spring as a plaintiff, and the Insurance Commissioner and the screening panel as the only defendants. Petitioners and the remaining defendants were not named as parties to the declaratory relief action. Thus, the matter proceeded in the absence of most of the interested parties.

At a hearing on the complaint for declaratory relief, Spring argued that the affidavit of Breen constituted new matter which could not be presented to the screening panel. The Insurance Commissioner and the screening panel indicated to the court that the state was neutral on the question of whether the affidavit of Breen should be considered by the screening panel. Counsel for petitioners was allowed to argue the legal position of petitioners, although petitioners were not parties to the proceeding.

On October 19, 1990, the district court entered a declaratory judgment in favor of Spring, and permanently enjoined the Insurance Commissioner and the screening panel from considering the affidavit of Breen. In that judgment, the district court concluded that it had jurisdiction to entertain the action for declaratory and injunctive relief. In this conclusion, the district court erred.

NRS 30.030 provides in part that courts of record "shall have power to declare the rights, status and other legal relations" of persons who file appropriate complaints. In this case, there was no dispute between the named defendants, the Insurance Commissioner and the screening panel, and the plaintiff. The dispute involved the plaintiff and the petitioners in this action. The district court was certainly without authority to declare the alleged rights of the petitioners who were not parties to the action before it.

More importantly, however, this alleged declaratory judgment action on behalf of Spring did not involve the declaration of any right, status or legal relation. The action of the screening panel does not involve the substantial right of any party to a medical malpractice action. If the plaintiff is unsuccessful in such an action, he may nonetheless pursue his suit to trial. If the defendant is unsuccessful, he may demand that his liability be determined at a trial. The determination of the screening panel simply affects the burdens of the parties with respect to the payment of attorney's fees if the matter proceeds to trial, and the unsuccessful party before the screening panel is also unsuccessful before the finder of fact. See NRS Chapter 41A.

NRS 41A.039(4) (emphasis added) provides in relevant part that "[t]he panel shall disregard any portion of the response that does not address an allegation raised in the answer...." The statute clearly contemplates that the panel, upon determining that any portion of the response is not responsive to the answer, shall disregard that portion of the response. The district court's judgment, rather than declaring the rights, status or legal relations of the parties properly before it, instead simply usurps the authority...