Sadler v. Pacificare of Nev., Inc.

• Decision Date: 31 December 2014
• Docket Number: No. 62111.,62111.
• Citation: 130 Nev. Adv. Op. 98,340 P.3d 1264
• Parties: Susan SADLER ; and Jack Sadler, Sr., individually and on Behalf of all Persons Similarly Situated, Appellants, v. PACIFICARE OF NEVADA, Inc., a Nevada Corporation, Respondent.
• Court: Nevada Supreme Court

340 P.3d 1264

130 Nev. Adv. Op. 98

Susan SADLER ; and Jack Sadler, Sr., individually and on Behalf of all Persons Similarly Situated, Appellants

v.PACIFICARE OF NEVADA, Inc., a Nevada Corporation, Respondent.

No. 62111.

Supreme Court of Nevada.

Dec. 31, 2014.

Rehearing Denied May 1, 2015.

Marquiz Law Office and Craig A. Marquiz, Henderson; George O. West, III, Las Vegas, for Appellants.

Lewis Roca Rothgerber LLP and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas; Holland & Hart LLP and Constance L. Akridge and Matthew T. Milone, Las Vegas, for Respondent.

BEFORE HARDESTY, DOUGLAS and CHERRY, JJ.

OPINION

By the Court, HARDESTY, J.:

Following an outbreak of hepatitis C

that was linked to unsafe injection practices used in procedures performed at certain health-care facilities in southern Nevada, patients of those facilities who had undergone such procedures were advised to submit to testing for blood-borne diseases, including hepatitis B

, hepatitis C, and HIV. This appeal concerns whether, in the absence of a present physical injury, those patients who have so far tested negative for such diseases, or who have not yet been tested, may state a claim for negligence based on the need to undergo ongoing medical monitoring as a result of the unsafe injection practices at these health-care facilities. Because we conclude that such individuals may state a claim for negligence, we reverse the district court's dismissal of the complaint and remand this matter to the district court for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Appellants Jack and Susan Sadler, on behalf of themselves and a proposed class of similarly situated individuals,¹ filed a complaint in the district court against respondent PacifiCare of Nevada, Inc., a health maintenance organization, asserting claims of negligence and negligence per se on the ground that PacifiCare failed to perform its duty to establish and implement a quality assurance program to oversee the medical providers within its network. In the complaint, the Sadlers alleged that PacifiCare's failure to monitor the medical providers allowed those providers to use unsafe injection practices, including reusing syringes and consequently injecting patients with medications from contaminated vials, which resulted in the Sadlers and the putative class members being “exposed to and/or placed at risk of contracting HIV, hepatitis B

, hepatitis C and other blood-borne diseases, requiring subsequent medical monitoring ... for infections of the same.” As relief for their negligence claims, the Sadlers sought to have the court establish a court-supervised medical monitoring program at PacifiCare's expense.

PacifiCare moved for judgment on the pleadings, arguing that the Sadlers' complaint failed to state a negligence claim on the ground that they had not alleged an “actual injury,” such as testing positive for a blood-borne illness. Instead, PacifiCare characterized the Sadlers' claim as one for a risk of exposure. And PacifiCare contended that the Sadlers' fear of injury or illness could not support their negligence claims. The Sadlers opposed the motion for judgment on the pleadings, arguing that the injury that must be alleged to state a tort claim does not need to be a physical injury, as suggested by PacifiCare. The crux of the Sadlers' opposition was that, by asserting that PacifiCare's negligence had caused them to need ongoing medical monitoring, they had alleged a legal injury sufficient to support their negligence claims.

Following a hearing on the matter, the district court granted PacifiCare's motion for judgment on the pleadings. In addressing the question of injury, the district court found it significant that the Sadlers had alleged exposure to blood generally, but had not specifically alleged exposure to infected blood. The court therefore concluded that the Sadlers' claims were based on a risk of exposure to infected blood, which the court found was insufficient to allege an injury. On this basis, the court granted judgment in favor of PacifiCare. This appeal followed.

DISCUSSION

Standard of review

Under NRCP 12(c), the district court may grant a motion for judgment on the pleadings when the material facts of the case “are not in dispute and the. movant is entitled to judgment as a matter of law.” Bonicamp v. Vazquez, 120 Nev. 377, 379, 91 P.3d 584, 585 (2004). Because an order granting a motion for judgment on the pleadings presents a question of law, our review of such an order is de novo. Lawrence v. Clark Cnty., 127 Nev. ––––, ––––, 254 P.3d 606, 608 (2011). As with a dismissal for failure to state a claim, in reviewing a judgment on the pleadings, we will accept the factual allegations in the complaint as true and draw all inferences in favor of the nonmoving party. Cf. Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (setting forth the standard of review for an order dismissing a complaint under NRCP 12(b)(5) ); see also Bernard v. Rockhill Dev. Co.,

103 Nev. 132, 135, 734 P.2d 1238, 1241 (1987) (explaining that a “motion for a judgment on the pleadings has utility only when all material allegations of fact are admitted in the pleadings and only questions of law remain”).

Medical monitoring

The goal of a medical monitoring claim is to require the defendant to pay for the costs of long-term diagnostic testing to aid in early detection of latent diseases that may have been caused by the defendant's tortious conduct. Bower v. Westinghouse Elec. Corp., 206 W.Va. 133, 522 S.E.2d 424, 429 (1999). This court has previously considered medical monitoring in only one opinion, Badillo v. American Brands, Inc., 117 Nev. 34, 16 P.3d 435 (2001), in which the plaintiffs sought a judgment requiring the defendant tobacco companies to pay for the plaintiffs' ongoing medical monitoring for tobacco-related diseases. Id. at 38, 16 P.3d at 438. There, the federal district court certified a question to this court, asking whether Nevada common law recognizes medical monitoring as either an independent tort action or a remedy. Id. at 37–38, 16 P.3d at 437. Considering the specific circumstances presented and the way such claims had been treated by other courts, the Badillo court concluded that there is no common law cause of action for medical monitoring in Nevada. Id. at 44, 16 P.3d at 441. Further, because Badillo had not identified an underlying cause of action, the court did not reach the question of whether medical monitoring is a viable remedy to a tort claim generally. Id. at 41, 16 P.3d at 440.

In this case, the Sadlers have specifically sought medical monitoring as a remedy for negligence, and thus, they do not ask this court to consider whether to recognize medical monitoring as an independent cause of action under the circumstances presented here. PacifiCare does not dispute that medical monitoring may be a viable remedy for a properly stated cause of action, but it contends that the Sadlers have not alleged a present physical injury and, therefore, have not sufficiently stated a claim for negligence. As the Badillo court did not answer whether medical monitoring is a remedy for negligence, this appeal presents a question of first impression for this court. To address it, we look first to our general negligence law before turning to how other courts have analyzed the injury requirement in the context of medical monitoring as a remedy.

Negligence

In order to state a claim for negligence, a plaintiff must allege that “(1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, (3) the breach was the legal cause of the plaintiff's injuries, and (4) the plaintiff suffered damages.”² DeBoer v. Senior Bridges of Sparks Family Hosp., Inc., 128 Nev. ––––, ––––, 282 P.3d 727, 732 (2012). Thus, the third element of a negligence claim contemplates that the plaintiff has suffered an injury. See id. As the district court's order and the parties' arguments have all been limited to whether the injury requirement is satisfied in this case, we similarly limit our inquiry to that issue, leaving the remaining elements of the negligence claims to be considered by the district court on remand.

Injury generally

The Sadlers argue that they have alleged an injury based on actual exposure to infected blood by asserting that they were exposed to the blood of other patients and that they were “exposed to and/or placed at risk of contracting HIV, hepatitis B

, hepatitis C and other blood-borne diseases.” Alternatively, the Sadlers argue that, even if they did not allege actual exposure to contaminated blood, they nonetheless have stated a claim for negligence by alleging that PacifiCare injured them by causing them to need ongoing medical monitoring. Conversely, PacifiCare argues that a plaintiff attempting to state a claim for negligence must allege a present physical injury, such that, here, the plaintiffs would be required to allege that they had actually contracted an illness. In granting judgment in favor of PacifiCare, the district court appears to have recognized that an injury may be found on less than a showing of actual illness, but the court declined to find a cognizable injury because the Sadlers had not alleged actual exposure to contaminated blood.

We begin our inquiry with the broad question, which asks whether the injury needed to state a tort claim must be a physical injury, or instead, whether some other type of legal injury may satisfy that requirement. Although PacifiCare has not argued that the Sadlers' claims were barred by the economic loss doctrine, our review of the parties' respective positions leads us to conclude that this doctrine is implicated by the issue presented, as it is closely related to the injury requirement. In addressing negligence claims, this court has noted that the “economic loss doctrine marks the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties...