The Supreme Court of the State of Nevada (“Nevada Supreme Court”) stated in its opinion filed on July 9, 2020: “we consider whether a nurse’s mistake in administering a drug to one patient, when the drug was prescribed to a different patient, as well as the alleged failure to thereafter monitor the patient, are matters of professional negligence subject to NRS 41A.071s affidavit requirement or a matter of ordinary negligence that would not require a supporting affidavit under the common knowledge exception. We conclude that the exception applies in this case to the drug’s administration, as lay jurors could understand that mistakenly administering a drug to the wrong patient is negligent without the benefit of expert testimony. Thus, any claim based solely on that act would not be subject to dismissal under NRS 41A.071 for failing to attach a supporting medical expert affidavit. But we conclude that the other allegation of failing to monitor the patient after administering the drug is subject to NRS 41A.071s affidavit requirement. We therefore affirm in part and reverse in part the district court’s dismissal order and remand for further proceedings in line with this decision.
The Underlying Facts
While taking care of multiple patients, a nurse employed by the defendant nursing home mistakenly administered to the decedent 120 milligrams of morphine that had been prescribed for another patient. The nurse soon realized her mistake and reported it to her supervisor. Acting on a physician’s orders, the defendant nursing home administered Narcan, another drug, to the decedent to counteract the morphine, but the nursing home decided not to send the decedent to the hospital at that time.
The defendant nursing home monitored the decedent’s vital signs and recorded that she was “alert and verbally responsive” at 5 p.m. the day the morphine was administered. The following morning at 11 a.m., when the nurse who had administered the wrong medication arrived to check on the decedent, she found the decedent unresponsive. The decedent was transported to the hospital and passed away three days later. Her death certificate lists morphine intoxication as the cause of death.
The nursing home negligence wrongful death complaint alleged that the defendant’s nurse administered the wrong medication to the decedent and thereafter failed to properly monitor or treat the decedent, both of which led to the decedent’s death. The Estate also alleged that the defendant nursing home’s negligent mismanagement, understaffing, and operation of the nursing home led to the erroneous administration of morphine and the failure to treat and monitor the decedent as the morphine took her life. The complaint specifically alleged that the defendant nursing home had a duty to properly train and supervise its staff to act with the level of knowledge, skill, and care ordinarily used under similar circumstances by similarly trained and experienced licensed nurses.
The defendant nursing home moved for summary judgment, and the district court granted the motion, finding that even though the Estate made direct claims against the nursing home and otherwise borrowed language from the elder abuse statute, the gravamen of the complaint’s allegations sounded in professional negligence. Accordingly, the district court concluded that the Estate was required to file an expert affidavit and its failure to do so rendered the complaint void ab initio. The Estate appealed.
Nevada Supreme Court Opinion
The Nevada Supreme Court stated, “Where the allegations underlying negligent hiring claims are inextricably linked to professional negligence, courts have determined that the negligent hiring claim is better categorized as vicarious liability rather than an independent tort … we therefore clarify that negligent hiring, training, and supervision claims cannot be used to circumvent NRS Chapter 41A’s requirements governing professional negligence lawsuits when the allegations supporting the claims sound in professional negligence.”
The Nevada Supreme Court further stated, “critically, if the underlying negligence did not cause [the decedent’s] death, no other factual basis was alleged for finding [the defendant nursing home] liable for negligent staffing, training, and budgeting. We conclude that the Estate’s claims are inextricably linked to the underlying negligence, and if the underlying negligence is professional negligence, as addressed below, the Estate’s complaint is subject to NRS 41A.071s affidavit requirement.”
Common Knowledge Exception
The Nevada Supreme Court stated, “If, on the other hand, the reasonableness of the health care provider’s actions can be evaluated by jurors on the basis of their common knowledge and experience, then the claim is likely based in ordinary negligence … [the common knowledge exception] applies only to situations involving negligence that is apparent without any expert testimony and does not apply to situations where the professional exercises medical judgment.”
The Nevada Supreme Court stated: “When determining whether to apply the exception, we adopt the framework set forth by the Supreme Court of Michigan: [A] court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or [professional negligence]: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern [professional negligence] actions.”
In the case it was deciding, the Nevada Supreme Court stated: “the Estate’s complaint focused on management and staffing issues at [the defendant nursing home]. But the Estate ultimately based its theory on two underlying allegations against [the defendant nursing home]: (1) [the nurse] administered morphine to [the decedent] that was prescribed for another patient, and (2) [the defendant nursing home] thereafter failed to properly monitor and care for [the decedent]. For the following reasons [i.e., the Estate’s claim that the nurse administered morphine that was not prescribed to the decedent does not raise any questions of medical judgment beyond the realm of common knowledge or experience. The nurse used no professional judgment in administering the morphine—she simply gave the decedent the wrong drug because she had mixed up the prescriptions], we conclude that the latter allegation is based in professional negligence, while the former sounds in ordinary negligence.”
“Thus, although administering medication constitutes medical treatment … an allegation that a health care professional administered a patient’s medicine to a different patient is an allegation of ordinary negligence that requires no expert testimony to assess.”
The Nevada Supreme Court concluded: “The mistaken administration of another patient’s morphine in this case constitutes ordinary negligence that a lay juror could assess without expert testimony, and a claim predicated solely upon such ordinary negligence is not subject to NRS 41A.071s medical expert affidavit requirement. The district court therefore erred in granting summary judgment as to this allegation. However, the district court correctly granted summary judgment as to the remaining allegations regarding the failure to monitor, as those allegations challenge whether the health care provider’s medical judgment violated the established duty of care and require expert testimony to support. Accordingly, we affirm in part, reverse in part, and remand this matter to the district court for further proceedings consistent with this opinion.”
Estate of Mary Curtis v. South Las Vegas Medical Investors, LLC, 136 Nev., Advance Opinion 39.
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