November 6, 2019

By Order dated October 21, 2019, the Supreme Court of the State of Nevada (“Nevada Supreme Court”) stated: “The district court concluded that the deficiency in Dolorfino’s [plaintiff’s] medical malpractice claim rendered her entire complaint void ab initio and dismissed the complaint in its entirety. This was error. While medical malpractice claims filed without an expert affidavit that are not exempted by NRS 41A.100(1) are void, the claims “must be severed and dismissed, while allowing the claims for ordinary negligence to proceed.””

The plaintiff sustained a tooth injury during an emergency hysterectomy performed at defendant University Medical Center of Southern Nevada (UMC) that occurred while the defendant anesthesiologist performed an endotracheal intubation on the plaintiff. The plaintiff had signed a consent form acknowledging the risk of injury to her teeth from this procedure but alleged that the defendant anesthesiologist injured her when he dropped a medical instrument onto her tooth during a power outage.

NRS 41A.071 requires medical malpractice actions to be dismissed if filed without a supporting affidavit from a medical expert. However, NRS 41A.071’s affidavit requirement does not apply to res ipsa claims pursuant to NRS 41A.100(1). NRS 41A.100(1)(d) exempts from the affidavit requirement claims alleging an injury “suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto.”

The plaintiff argued that her claim for medical malpractice alleged an injury that fell within the scope of NRS 41A.100(1)(d), thus excusing the NRS 41A.071 medical expert affidavit requirement.

The Nevada Supreme Court stated that the plaintiff’s res ipsa claim alleged that the defendant anesthesiologist dropped a medical instrument on her tooth in an act unrelated to the endotracheal intubation that he performed and thus was an injury that was not suffered during the course of treatment, yet affected a part of the body directly involved in his procedure. “NRS 41A.100(1)(d) therefore does not apply to this claim, and the district court properly dismissed Dolorfino’s medical malpractice claim brought under NRS 41A.100.”

However, the Nevada Supreme Court further held that “[t]he district court must closely examine the substantial essence of each of Dolorfino’s remaining claims against UMC and Odell to determine whether the claim alleges medical malpractice—where the jury requires a medical expert’s guidance on the professional standard of care—or ordinary negligence—where the jurors can evaluate the claim based on their common knowledge and experience … Because the district court did not do this, the district court’s order is reversed as to Dolorfino’s remaining claims.”

Dolorfino v. University Medical Center of Southern Nevada, No. 72443.

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