Zohar v. Zbiegien

• Decision Date: 18 September 2014
• Docket Number: No. 60050.,60050.
• Citation: 334 P.3d 402,130 Nev. Adv. Op. 74
• Parties: Max ZOHAR, a Minor; and Dafna Noury, Individually and as the Natural Mother of Max Zohar, Appellants, v. Michael ZBIEGIEN, M.D., an Individual; EmCare, Inc., a Foreign Corporation; EmCare Physician Services, Inc., a Foreign Corporation; EmCare Physician Providers, Inc., a Foreign Corporation; and Rachel Lovera, R.N., an Individual, Respondents.
• Court: Nevada Supreme Court

334 P.3d 402

130 Nev. Adv. Op. 74

Max ZOHAR, a Minor; and Dafna Noury, Individually and as the Natural Mother of Max Zohar, Appellants

v.Michael ZBIEGIEN, M.D., an Individual; EmCare, Inc., a Foreign Corporation; EmCare Physician Services, Inc., a Foreign Corporation; EmCare Physician Providers, Inc., a Foreign Corporation; and Rachel Lovera, R.N., an Individual, Respondents.

No. 60050.

Supreme Court of Nevada.

Sept. 18, 2014.

Eglet Wall Christiansen and Artemus W. Ham and Erica D. Entsminger, Las Vegas, for Appellants.

Alverson, Taylor, Mortensen & Sanders and David J. Mortensen and Ian M. Houston, Las Vegas, for Respondents Michael Zbiegien, M.D.; EmCare, Inc.; EmCare Physician Services, Inc.; and EmCare Physician Providers, Inc.

Hall Prangle & Schoonveld, LLC, and Michael E. Prangle and Casey W. Tyler, Las Vegas, for Respondent Rachel Lovera, R.N.

BEFORE THE COURT EN BANC.

OPINION

By the Court, GIBBONS, C.J.:

In this opinion, we consider whether an expert affidavit attached to a medical malpractice complaint, which otherwise properly supports the allegations of medical malpractice contained in the complaint but does not identify all the defendants by name and refers to them only as staff of the medical facility, complies with the requirements of NRS 41A.071. We conclude that in order to achieve NRS 41A.071's purpose of deterring frivolous claims and providing defendants with notice of the claims against them, while also complying with the notice-pleading standards for complaints, the district court should read a medical malpractice complaint and affidavit of merit together when determining whether the affidavit meets the requirements of NRS 41A.071. In this case, the expert affidavit, while omitting several names, adequately supported the allegations of medical malpractice against respondents contained in the complaint and provided adequate notice to respondents of the claims against them. We therefore reverse the district court's order of dismissal and remand this case to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Appellant Dafna Noury, mother of then–16–month–old Max Zohar (collectively, the Zohars), took Max to the emergency room at Summerlin Hospital for treatment of a parrot bite on his right middle finger. The medical staff at Summerlin Hospital, including respondents Michael Zbiegien, M.D., and Rachel Lovera, R.N., irrigated Max's finger, repaired it, then dressed and bandaged the finger. Several days later, Dr. Zbiegien and a nurse examined Max's finger again, and Noury asserts that they only removed and reapplied the outer dressing

while the original wounddressing was left in place. When Max returned several days later to have the dressing removed, the Zohars allege that the hospital staff was unable to remove the inner dressing from Max's finger because it was stuck to Max's laceration. As a result, the dressings had to be soaked off. Once the staff removed the dressing, they noted that Max's finger was discolored. The emergency team consulted two hand specialists—who are not parties to this appeal—who noted that Max's finger was “dusky,” swollen, and had “venous/arterial flow compromise.” Max underwent a series of surgeries but eventually required a partial amputation of his finger.

The Zohars filed a medical malpractice complaint against multiple defendants, including Summerlin Hospital Medical Center, Zbiegien, and Lovera, as well as EmCare, Inc.; EmCare Physician Services, Inc.; and EmCare Physician Providers, Inc. (collectively, the EmCare entities).¹ The Zohars' complaint asserted claims of medical malpractice and professional negligence against Zbiegien and Lovera, as well as vicarious liability against the EmCare entities. The Zohars attached an expert affidavit of Burton Bentley II, M.D., F.A.A.E.M., to the complaint pursuant to NRS 41A.071. Dr. Bentley's affidavit stated that, to a reasonable degree of medical probability, the medical staff in the emergency department at Summerlin Hospital breached the standard of care when Max's finger was dressed too tightly. Dr. Bentley chronologically described Max's treatment and summarized the relevant medical records and photos that were the basis of his opinions. The affidavit specified the allegedly negligent activities of several individuals, as well as the activities of “the staff of the emergency department of Summerlin Hospital Medical Center, including but not limited to the responsible physician or physicians, nurse or nurses, and/or ancillary emergency department staff.”² The affidavit did not identify Zbiegien, Lovera, or the EmCare entities by name.

Zbiegien, Lovera, and the EmCare entities filed motions to dismiss, arguing that Dr. Bentley's affidavit was deficient because it did not specifically name them as negligent parties.³ The Zohars opposed the motions, arguing that the affidavit, when read together with the complaint, properly supported all allegations contained in the complaint. In the alternative, the Zohars requested leave to amend their complaint and expert affidavit. The district court granted the motions to dismiss and denied the Zohars' motion to amend.⁴ The Zohars now appeal.

DISCUSSION

The district court erred in determining that the Zohars' expert affidavit was inadequate to support the allegations of medical malpractice

We review a district court order granting a motion to dismiss de novo. Munda v. Summerlin Life & Health Ins. Co.,

127 Nev. ––––, ––––, 267 P.3d 771, 774 (2011), Such an order will be affirmed only where “ ‘it appears beyond a doubt that the plaintiff could prove no set of facts ... [that] would entitle him [or her] to relief.’ ” Id. (quoting Vacation Via., Inc. v. Hitachi Am., Ltd., 110 Nev. 481, 484, 874 P.2d 744, 746 (1994) ).

Similarly, we review issues of statutory construction de novo. Pub. Agency Comp. Trust v. Blake, 127 Nev. ––––, ––––, 265 P.3d 694, 696 (2011). If a statute is clear on its face, we will not look beyond its plain language. Wheble v. Eighth Judicial Dist. Court, 128 Nev. ––––, ––––, 272 P.3d 134, 136 (2012). But when a statute is susceptible to more than one reasonable interpretation, it is ambiguous, and this court must resolve that ambiguity by looking to the statute's legislative history and “construing the statute in a manner that conforms to reason and public policy.” Great Basin Water Network v. Taylor, 126 Nev. 187, 196, 234 P.3d 912, 918 (2010).

NRS 41A.071 requires that a medical malpractice action must be filed with “an affidavit, supporting the allegations contained in the action. ” (Emphasis added.) NRS Chapter 41A does not, however, define the level of detail required to adequately “support[ ]” a plaintiff's allegations. Looking to other sources, the word “support” has varying definitions. Black's Law Dictionary defines support as “[b]asis or foundation.” Black's Law Dictionary 1577–78 (9th ed.2009). Additionally, support has been defined as “to provide with substantiation,” “corroborate,” or “to ... serve as a foundation.” Merriam–Webster's Collegiate Dictionary 1256 (11th ed.2007). Given these definitions, and that the statute does not define what level of support is required, we conclude that the term “support” in NRS 41A.071 is ambiguous because it may reasonably be interpreted as merely providing some substantiation or foundation for the underlying facts within the complaint, or it may also be interpreted to require that the affidavit corroborate every fact within the complaint, including individual defendant identities. In light of this ambiguity, we will evaluate the statute's legislative history and attempt to construe it in a manner that conforms to reason and public policy. See Great Basin, 126 Nev. at 196, 234 P.3d at 918.

NRS 41A.071 was enacted in 2002 as part of a special legislative session that was called to address a medical malpractice insurance crisis in Nevada. See Borger v. Eighth Judicial Dist. Court, 120 Nev. 1021, 1023, 102 P.3d 600, 602 (2004). At the time, doctors claimed that medical malpractice “insurers were quoting premium increases of 300 to 500 percent.” Hearing on S.B. 2 Before the Senate Comm. of the Whole, 18th Special Sess. (Nev., July 29, 2002) (statement of Governor Guinn).

The Legislature addressed the medical malpractice insurance crisis, in part, by capping noneconomic damages, requiring settlement conferences, and supplanting the existing malpractice screening panels with the expert affidavit requirement under NRS 41A.071. Borger, 120 Nev. at 1023–24, 1026, 102 P.3d at 602, 604. NRS 41A.071's affidavit requirement was implemented “ ‘to lower costs, reduce frivolous lawsuits, and ensure that medical malpractice actions are filed in good faith based upon competent expert medical opinion.’ ”⁵ Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006) (quoting Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005) ). The Governor of Nevada stated that the legislation “balance [d] the needs of injured parties, patients who seek the best medical care available and the doctors who must purchase and carry insurance to protect themselves and their patients.” Hearing on S.B. 2 Before the Senate Comm. of the Whole, 18th Special Sess. (Nev., July 29, 2002) (statement of Governor Guinn).

As noted above, the legislative history of NRS 41A.071 demonstrates that it was enacted to deter baseless medical malpractice litigation, fast track medical malpractice cases, and encourage doctors to practice in Nevada while also respecting the injured plaintiffs right to litigate his or her case and receive full compensation for his or her injuries. The legislative history does not reveal, however, the precise level of specificity that an expert affidavit must include in order to “support” the allegations in a medical malpractice claim under NRS 41A.071. In light of this uncertainty, we are left to construe the statute in a manner that conforms to reason and public policy and thus continues to...