In its decision dated September 18, 2014, the Supreme Court of the State of Nevada (“Nevada Supreme Court”) reinstated a Nevada medical malpractice case that had been dismissed by the trial court because the plaintiff’s expert affidavit attached to her medical malpractice complaint did not identify all the medical malpractice defendants by name and referred to them only as staff of the medical facility.
The Nevada Supreme Court held that 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, the purpose of which is to deter frivolous claims and provide defendants with notice of the claims against them. In the case the Nevada Supreme Court was deciding, it held that the plaintiff’s expert affidavit, while omitting several names, adequately supported the allegations of medical malpractice against the medical malpractice defendants contained in the complaint and provided adequate notice to the defendants of the claims against them. Therefore, the Nevada Supreme Court reversed the trial court’s order of dismissal and remanded the case to the district court for further proceedings.
The Alleged Underlying Facts
The mother of a 16-month-old child brought her son to the emergency room at the defendant hospital for treatment of a parrot bite on his right middle finger. The medical staff at the hospital irrigated the child’s finger, repaired it, dressed it, and then bandaged the finger. Several days later, the medical staff examined the child’s finger again at which time the plaintiff alleges that the medical staff only removed and reapplied the outer dressing while the original wound dressing was left in place. When the mother brought her son back to the defendant hospital several days later to have the dressing removed, the medical staff was unable to remove the inner dressing from the child’s finger because it was stuck to the laceration, according to the Nevada medical malpractice lawsuit.
The dressing had to be soaked off after which the medical staff noticed that the child’s finger was discolored. Two hand specialists who were consulted noted that the child’s finger was “dusky,” swollen, and had “venous/arterial flow compromise,” requiring a series of surgeries that were ultimately unsuccessful, resulting in a partial amputation of the child’s finger.
The child’s mother subsequently filed a medical malpractice case against various defendants, alleging claims of medical malpractice and professional negligence as well as vicarious liability against various entities. The medical malpractice complaint included an attached medical expert affidavit that stated that, to a reasonable degree of medical probability, the medical staff in the emergency department breached the standard of care when the child’s finger was dressed too tightly, specifying the allegedly negligent activities of several individuals as well as the activities of “the staff of the emergency department of [the defendant hospital], including but not limited to the responsible physician or physicians, nurse or nurses, and/or ancillary emergency department staff.” However, the plaintiff’s expert’s affidavit did not identify some of the allegedly negligent actors by name.
Some of the unidentified medical malpractice defendants/entities filed motions to dismiss in which they argued that the plaintiff’s expert’s affidavit was deficient because it did not specifically name them as negligent parties. The trial court granted the motions to dismiss and denied the plaintiffs’ motion to amend their complaint and expert affidavit. The plaintiffs then appealed to the Nevada Supreme Court.
The Nevada Supreme Court noted that NRS 41A.071 requires that a medical malpractice action must be filed with “an affidavit, supporting the allegations contained in the action” but does not define the level of detail required to adequately “support” a plaintiff’s allegations. Since the word “support” has varying definitions and the statute does not define the level of support that is required, the Nevada Supreme Court held 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 reviewing the legislative history of NRS 41A.071, the Nevada Supreme Court noted 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 plaintiff’s right to litigate his or her case and receive full compensation for his or her injuries. The Nevada Supreme Court held that the courts should read the complaint and the plaintiff’s NRS 41A.071 expert affidavit together when determining whether the expert affidavit meets the requirements of NRS 41A.071 (“Such a reading ensures that our courts are dismissing only frivolous cases, furthers the purposes of our notice-pleading standard, and comports with Nevada’s Rules of Civil Procedure”).
The Nevada Supreme Court stated, “Given that the purpose of a complaint is to ‘give fair notice of the nature and basis of a legally sufficient claim and the relief requested,’ … and the purpose of the expert affidavit is to further enable the trial court to determine whether the medical malpractice claims within the complaint have merit, both policy considerations are served when the sufficiency of the affidavit is determined by reading it in conjunction with the complaint.” The Nevada Supreme Court further stated, “we are hesitant to adopt such a strict interpretation of NRS 41A.071 as is advocated by respondents because at this preliminary point in the proceedings, the parties have conducted little to no formal discovery. Such a harsh interpretation would undoubtedly deny many litigants the opportunity to recover against negligent parties when the medical records available to the plaintiff do not identify a negligent actor by name—especially in res ispa [sic] loquitur cases in which the parties are simply unable to identify the negligent actor.”
Hence, the Nevada Supreme Court held, “We conclude that courts should read a medical malpractice complaint and the plaintiffs NRS 41A.071 expert affidavit together when determining whether the affidavit satisfies the requirements of NRS 41A.071. Thus, an expert affidavit of merit that fails to specifically name allegedly negligent defendants may still comply with NRS 41A.071 as to the unnamed parties if it is clear that the defendants and the court received sufficient notice of the nature and basis of the medical malpractice claims.”
Source Max Zohar, a minor, and Dafna Noury, Individually and as the Natural Mother of Max Zohar v. Michael Zbiegien, M.D., et al., No. 60050.
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