Tam v. Eighth Judicial Dist. Court of State

Decision Date01 October 2015
Docket NumberNo. 66346.,66346.
Citation358 P.3d 234,131 Nev. Adv. Op. 80
PartiesStephen TAM, M.D., Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the County of Clark; and the Honorable Jerry A. Wiese, District Judge, Respondents, and Sherry Cornell, Individually and as Special Administrator of the Estate of Charles Thomas Cornell, Jr.; Karla Crawford, as Special Administrator of the Estate of Charles Thomas Cornell, Jr.; Patrick N. Chapin, as Special Administrator of the Estate of Charles Thomas Cornell, Jr.; and Alfredo Hibbart, PA, Real Parties in Interest.
CourtNevada Supreme Court

Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E. Jordan, Las Vegas, for Petitioner.

Law Office of Bradley L. Booke and Bradley L. Booke, Las Vegas; Shandor S. Badaruddin, Missoula, Montana, for Real Parties in Interest Sherry Cornell, Karla Crawford, and Patrick N. Chapin.

Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C. McBride, Las Vegas, for Real Party in Interest Alfredo Hibbart.

Before the Court En Banc.


By the Court, HARDESTY, C.J.:

NRS 41A.035 (2004) limits the recovery of a plaintiffs noneconomic damages in a health-care provider's professional negligence action to $350,000. In this petition, we resolve three issues related to this statute: whether the statute violates a plaintiff's right to trial by jury, whether the cap applies separately to each cause of action, and whether the statute applies to medical malpractice actions. We conclude that the district court erred in finding the statute unconstitutional on the basis that it violates a plaintiffs constitutional right to trial by jury. We further conclude that the district court erred when it found the statutory cap applies per plaintiff and per defendant. And finally, we conclude that the district court erred when it found the statute only applies to professional negligence and not to medical malpractice. Accordingly, we grant the petition.


After the death of Charles Thomas Cornell, Jr., real party in interest Sherry Cornell,1 individually and as administrator of Charles's estate, filed a complaint alleging, among other causes of actions, professional negligence and medical malpractice. The complaint named numerous defendants, including petitioner Stephen Tam, M.D.

Charles had several chronic medical conditions. However, Cornell alleged that Charles died after receiving care from the defendants, who discharged him without medications or prescriptions for essential medications, including insulin, to treat his diabetes . Consequently, the complaint alleged that Charles died because he did not have access to insulin.

The district court dismissed several of the defendants and numerous claims from the action, and the remaining claims for trial fell “within the definition of medical malpractice as set forth in NRS 41A.009.” Relevant to this opinion is that Dr. Tam filed an omnibus motion in limine requesting in part that the plaintiffs' noneconomic damages be limited to $350,000 as a whole pursuant to NRS 41A.035 (2004).

The district court denied this motion finding that NRS 41A.035 was unconstitutional, as it violated a plaintiffs constitutional right to trial by jury. The district court also found that the cap in NRS 41A.035 does not apply to the case as a whole but that a separate cap applies to each plaintiff for each of the defendants.2 In addition, the district court found that the cap in NRS 41A.035 did not apply to medical malpractice claims.3 This petition for writ relief followed.

Writ relief is appropriate

Dr. Tam petitions this court for a writ of mandamus compelling the district court to vacate its order denying his motion in limine. ‘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 an arbitrary or capricious exercise of discretion.’ Humphries v. Eighth Judicial Dist. Court, ––– Nev. ––––, 312 P.3d 484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) ); NRS 34.160. Generally, [w]rit relief is not available ... when an adequate and speedy legal remedy exists.” Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558. “While an appeal generally constitutes an adequate and speedy remedy precluding writ relief, we have, nonetheless, exercised our discretion to intervene ‘under circumstances of urgency or strong necessity, or when an important issue of law needs clarification and sound judicial economy and administration favor the granting of the petition.’ Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (footnote omitted) (quoting State v. Second Judicial Dist. Court, 118 Nev. 609, 614, 55 P.3d 420, 423 (2002) ).

In this case, although an appeal from a final judgment appears to be an adequate and speedy remedy for the individual parties, resolving this writ petition could affect the course of the litigation and thus promote sound judicial economy and administration. Moreover, this petition raises an important legal issue in need of clarification involving public policy, which could resolve or mitigate related or future litigation. Accordingly, we exercise our discretion to entertain Dr. Tam's petition for writ of mandamus.

The district court erred in finding NRS 41A.035 unconstitutional, as the statute does not violate the right of trial by jury

NRS 41A.035 provides that [i]n an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages awarded in such an action must not exceed $350,000.” The district court concluded that the statute violates the right of trial by jury because it takes a question of fact—the determination of damages—away from the jury.

[T]his court reviews de novo determinations of whether a statute is constitutional.” Hernandez v. Bennett–Haron, ––– Nev. ––––, 287 P.3d 305, 310 (2012). Statutes are presumed to be valid, and the challenger bears the burden of showing that a statute is unconstitutional. In order to meet that burden, the challenger must make a clear showing of invalidity.” Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d 682, 684 (2006) (citation omitted).

In Nevada, [t]he right of trial by Jury shall be secured to all and remain inviolate forever.” Nev. Const. art. 1, § 3. This provision guarantees “the right to have factual issues determined by a jury.” Drummond v. Mid–West Growers Coop. Corp., 91 Nev. 698, 711, 542 P.2d 198, 207 (1975).

In order for a statute to violate the right to trial by jury, a statute must make the right practically unavailable. Barrett v. Baird, 111 Nev. 1496, 1502, 908 P.2d 689, 694 (1995) ([T]he correct standard for evaluating whether a statute unconstitutionally restricts the right to a jury trial is that the right must not be burdened by the imposition of onerous conditions, restrictions or regulations which would make the right practically unavailable.” (internal quotations omitted)), overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970, 980 (2008).

While jurisdictions disagree on whether caps on statutory damages violate the right to trial by jury,4 we have previously held that a statutory limit on damages does not infringe upon a plaintiffs constitutional right. Arnesano v. State, Dep't of Transp., 113 Nev. 815, 819, 942 P.2d 139, 142 (1997), abrogated on other grounds by Martinez v. Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). In Arnesano, the plaintiffs contended that a $50,000 cap on damages under NRS 41.035 (limiting damages in a tort action against the government) violated their right to a jury trial. Id. at 819–20, 942 P.2d at 142. After explaining that it is the jury's role to determine the extent of a plaintiff's injury, this court concluded that ‘it is not the role of the jury to determine the legal consequences of its factual findings.... That is a matter for the [L]egislature.’ Id. at 820, 942 P.2d at 142 (quoting Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir.1989) (first alteration in original) (upholding a statutory cap on medical malpractice liability)).

California has also addressed this exact issue in upholding the constitutionality of its statutory cap on noneconomic damages in an action involving a health-care provider's professional negligence. See Yates v. Pollock, 194 Cal.App.3d 195, 239 Cal.Rptr. 383, 385 (1987) (concluding that such an argument is merely “an indirect attack upon the Legislature's power to place a cap on damages”). The Yates court reasoned that while the statute could possibly result in a lower judgment than the jury's award, “the Legislature retains broad control over the measure ... of damages that a defendant is obligated to pay and a plaintiff is entitled to receive, and ... [it] may expand or limit recoverable damages so long as its action is rationally related to a legitimate state interest.” Id. at 385–86 (internal quotations omitted) (third alteration in original).

Consistent with our prior holding in Arnesano and persuasive caselaw from California, we conclude that NRS 41A.035's cap does not interfere with the jury's factual findings because it takes effect only after the jury has made its assessment of damages, and thus, it does not implicate a plaintiffs right to a jury trial.

NRS 41A.035 does not violate equal protection rights

Cornell also argues that the district court correctly found the statute unconstitutional but for the wrong reasons. Cornell argues that NRS 41A.035 violates the Equal Protection Clause and claims there is no rational basis for the statute. The district court did not address the equal protection argument in its order. Although this court would not normally address an issue that the district court declined to consider and develop the factual record, this court can consider constitutional issues...

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