Szydel v. Markman

• Citation: 117 P.3d 200
• Decision Date: 11 August 2005
• Docket Number: No. 42663.,42663.
• Parties: Annette SZYDEL and Kevin Szydel, Individually, and as Husband and Wife, Appellants, v. Barry MARKMAN, M.D., Respondent.
• Court: Supreme Court of Nevada

117 P.3d 200

Annette SZYDEL and Kevin Szydel, Individually, and as Husband and Wife, Appellants, v. Barry MARKMAN, M.D., Respondent.

No. 42663.

Supreme Court of Nevada.

August 11, 2005.

Murdock & Associates, Chtd., and Robert E. Murdock, Las Vegas, for Appellants.

John H. Cotton & Associates, Ltd., and Anthony J. D'Olio and Mara E. Fortin, Las Vegas, for Respondent.

Before ROSE, GIBBONS and HARDESTY, JJ.

OPINION

By the Court, ROSE, J.:

In this appeal, we consider whether a medical malpractice action filed under Nevada's res ipsa loquitur statute, NRS 41A.100, which does not require expert testimony at trial, must include a medical expert affidavit, as mandated by NRS 41A.071. We conclude that the expert affidavit requirement does not apply when the malpractice action is based solely on the res ipsa loquitur doctrine.

FACTS

On June 22, 2001, respondent Dr. Barry Markman performed a bilateral mastopexy, or breast lift, operation on appellant Annette Szydel. After Dr. Markman completed the procedure on the right breast, the nursing staff conducted an equipment count and informed Dr. Markman that all sponges, needles, and other equipment used during the surgery were accounted for. Dr. Markman closed Szydel's right breast and continued the operation on her left breast. After Dr. Markman completed the procedure on her left breast, the nursing staff informed Dr. Markman that one of the surgical needles was unaccounted for.

Dr. Markman conducted a thorough search of Szydel's left breast but was unable to locate the missing needle. Following an initial search of the operating field and operating room, an x-ray was taken to see if the missing needle was located within the wound or had adhered to Szydel's body. Following the hospital's standard procedure in such situations, the hospital staff relocated Szydel to the recovery room to facilitate a thorough search of the operative suite and the surgical drapes. Dr. Markman informed Szydel of the missing needle and explained that, if necessary, she would be taken back into the operating room to remove the needle.

The standard x-ray did not indicate the presence of a foreign object. The search of the operative suite and Szydel's surgical drapes also failed to locate the missing needle. Dr. Markman then took Szydel to the fluoroscopy¹ suite to rule out any possibility that the needle was left inside Szydel's body. The results of the fluoroscopy showed that the needle was located in the middle of Szydel's right breast, indicating that the initial equipment count performed after the procedure on her right breast was incorrect. Szydel was taken back to the operative suite, and the needle was removed.

At the time of Szydel's surgery, a Nevada statute required that medical malpractice claims be submitted to a medical-legal screening panel before proceeding in district court. In June 2002, the Governor called a special session of Nevada's Legislature to "address a perceived medical malpractice insurance crisis" in Nevada.² During the special session, the Legislature enacted various measures intended to reform the way medical malpractice claims are handled, including completely eliminating the requirement for prescreening of medical malpractice cases by the medical-legal screening panel and requiring medical malpractice actions to be accompanied by an expert's affidavit.³ However, the changes passed during the special session were not effective until October 1, 2002. As a result, claimants who filed a case with the panel before the effective date could elect to opt out of the new statutory scheme and continue under the prior prescreening statutes.⁴

Szydel filed a complaint with the medical-legal screening panel on September 27, 2002. Szydel elected to continue with the panel. The panel then informed Szydel by letter that her complaint was procedurally deficient and advised her that unless she corrected the deficiencies before December 4, 2002, her complaint would not be filed or submitted to the panel and any subsequent filing would be considered a new complaint.⁵

Szydel never corrected the procedural problems with her complaint, and the panel dismissed her claim without prejudice on January 9, 2003. Six months later, on June 6, 2003, Szydel and her husband filed a malpractice complaint in district court. Szydel's complaint alleged that in performing the mastopexy operation, Dr. Markman left a surgical needle inside Szydel's breast and, under Nevada's res ipsa loquitur statute, there is a rebuttable presumption of negligence. Dr. Markman moved to dismiss for failure to comply with NRS 41A.071, the new statutory provision requiring malpractice actions to be accompanied by a medical expert's affidavit.

NRS 41A.071 requires the dismissal of any medical malpractice action filed in district court without a medical expert's supporting affidavit. Szydel opposed Dr. Markman's motion and argued that because this was a retained foreign object case under NRS 41A.100, Nevada's res ipsa loquitur statute, which does not require expert testimony at trial, the affidavit requirement of NRS 41A.071 was inapplicable to her complaint.

After giving Szydel additional time to obtain an expert's affidavit, the district court dismissed Szydel's complaint without prejudice for her failure to comply with NRS 41A.071. Szydel appeals.

DISCUSSION

Standard of review and applicable law

Szydel argues that the expert witness affidavit requirement of NRS 41A.071 does not apply in a retained foreign object case under NRS 41A.100(1)(a), the res ipsa loquitur statute. Our review of statutory provisions is de novo.⁶ When construing a statute, the legislative intent is controlling.⁷ Under the plain meaning rule, "[t]his court will not look beyond the plain language of the statute, unless it is clear that this meaning was not intended."⁸ When the language of a statute is clear on its face, this court will deduce the legislative intent from the words used.⁹

When two statutes are clear and unambiguous but conflict with each other when applied to a specific factual situation, an ambiguity is created and we will attempt to reconcile the statutes.¹⁰ In doing so, we will attempt to read the statutory provisions in harmony, provided that this interpretation does not violate legislative intent.¹¹

Resolution of the conflict between NRS 41A.100 and NRS 41A.071

We begin with the plain meaning rule and look to the meaning of language employed in each of the statutes.¹² NRS 41A.100(1) provides an exception to the basic requirement that expert testimony or evidence from a recognized medical text or treatise is required to prove negligence and causation in a medical malpractice lawsuit.¹³ As this court has noted, NRS 41A.100(1) requires that a res ipsa loquitur instruction must be given when the circumstances and evidence so warrant.¹⁴ In Born v. Eisenman, this court noted that:

"[A]ll a plaintiff need do to warrant an instruction under the statutory medical malpractice res ipsa loquitur rule is present some evidence of the existence of one or more of the factual predicates enumerated in the statute. If the trier of fact then finds that one or more of the factual predicates exist, then the presumption must be applied. This is the approach taken in Nev. J.I. 6.17."¹⁵

NRS 41A.100(1)(a) sets forth the specific exception involved in this case and states that expert testimony is not required in instances where a foreign object is unintentionally left in the patient's body following surgery.¹⁶

In contrast, NRS 41A.071 requires the dismissal of a medical malpractice action filed without an affidavit from a medical professional practicing in a substantially similar field.¹⁷ As this court recently noted in Borger v. District Court, the plain language of NRS 41A.071 provides a threshold requirement for medical malpractice pleadings and does not pertain to evidentiary matters at trial, as does NRS 41A.100(1).¹⁸ However, in a footnote, this court in Borger noted the apparent conflict between NRS 41A.071 and NRS 41A.100(1) but left the issue unresolved because NRS 41A.100(1) was not at play in that case.¹⁹

The language of these two statutes is unambiguous. However, when read together, the statutes are in conflict because NRS 41A.100(1) permits a jury to infer negligence without expert testimony at trial,²⁰ whereas NRS 41A.071 requires dismissal whenever the expert affidavit requirement is not met.²¹ Accordingly, we agree with Szydel that requiring an expert affidavit at the start of a malpractice action, while permitting the plaintiff to proceed at trial without the need to produce expert testimony under the res ipsa loquitur doctrine, leads to an absurd result. Enforcing this requirement in a res ipsa case would do little to advance the primary goal of the expert affidavit requirement, which is to deter frivolous litigation and identify meritless malpractice lawsuits at an early stage.²²

In Palanque v. Lambert-Woolley,²³ the New Jersey Supreme Court held that New Jersey's statutory affidavit requirement does not apply to "common knowledge" malpractice cases where "`"jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts."'"²⁴ The New Jersey court noted that in such a case "whether a plaintiff's claim meets the [required] threshold of merit can be determined on the face of the complaint."²⁵ The court reasoned that

requiring an affidavit of merit in such a case is not necessary to achieve the primary goal of the statute, that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation. Indeed, recognition of the common knowledge exception allows meritorious claims to move forward without the added, and in those cases unnecessary, cost of hiring an expert to execute an affidavit when that expert will not testify at trial.²⁶

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