Nursing Home Claim: Was It Medical Negligence? – In its opinion dated October 27, 2022, the Supreme Court of the State of Nevada (“Nevada Supreme Court”) stated: “In this opinion we both clarify the relationship between Nevada’s professional negligence statutes, NRS Chapter 41A, and Nevada’s elder abuse statute, NRS 41.1395, and also discuss their application to claims against skilled nursing home facilities. Claims under these statutes are separate and distinct, and it is important that the claims are properly classified because only claims for professional negligence require plaintiffs to include an affidavit of merit as part of their complaint. In the underlying proceeding, the district court concluded that appellant’s allegations sounded in professional negligence and dismissed her complaint for failure to attach an affidavit of merit. For the reasons stated below, we conclude that factual development as to the gravamen of the plaintiff’s allegations is necessary before such a determination can be reached. Thus, we reverse the district court’s dismissal order and remand for further proceedings consistent with this decision.”
Underlying Facts
Lynn Yafchak filed a complaint against skilled nursing home Life Care Center of South Las Vegas (LCC) and ten unnamed defendants for injuries that her mother, decedent Joan Yafchak (Joan), suffered while a resident at LCC. In her complaint, Yafchak asserted elder abuse, negligence, and wrongful death claims. Yafchak did not attach an affidavit of merit to her complaint. Nor did Yafchak specify which negligent actions were allegedly committed by LCC’s employees or which employees were responsible for the alleged improper care. Further, LCC did not proffer any evidence that clarified either of these two issues. Instead, Yafchak’s complaint only generally averred that the negligent conduct of LCC’s employees was the cause of Joan’s death and that their negligence stemmed from LCC’s own negligent hiring, training, and supervision of said employees.
LCC moved to dismiss Yafchak’s complaint, arguing that although her complaint did not expressly plead claims of professional negligence, Yafchak’s allegations sounded in professional negligence and thus required her to attach an affidavit of merit. The district court agreed that Yafchak’s claims arose from allegations of professional negligence, therefore requiring her complaint to be accompanied by an affidavit of merit. Because Yafchak’s complaint did not include the required affidavit, the district court granted LCC’s motion to dismiss.
Nevada Supreme Court Opinion
In Nevada, actions for professional negligence are governed by NRS Chapter 41A. NRS Chapter 41A applies solely to claims regarding medical negligence committed by a “provider of health care.” NRS 41A.015. A “provider of health care” is statutorily defined in NRS 41A.017. Where a complaint includes allegations of professional negligence, the plaintiff must include an affidavit of merit with their complaint. NRS 41A.071. If a complaint averring professional negligence is filed without an affidavit of merit, the complaint is void ab initio and dismissed.
Nevada has also provided a statutory cause of action for elder abuse, NRS 41.1395, wherein an action may be brought on behalf of an elder or vulnerable person for an injury that they suffered because of abuse, neglect, or exploitation. NRS 41.1395 is an important statute for protecting Nevada’s elderly and vulnerable population and incentivizes attorneys to represent this type of client by permitting plaintiffs to recover enhanced damages and, where appropriate, attorney fees and costs. See NRS 41.1395(1)-(2).
The Nevada Supreme Court stated that claims under NRS Chapter 41A and NRS 41.1395 are separate and distinct. This is crucial because only claims arising under NRS Chapter 41A require the plaintiff to attach an affidavit of merit. Although a complaint may not expressly include a claim for professional negligence, a plaintiff may nevertheless be required to comply with the affidavit of merit requirement if the underlying allegations sound in professional negligence. Courts must focus on the gravamen or substance of each claim rather than its form.
While professional negligence and elder abuse claims are legally discrete, the facts supporting these two types of claims are often closely related or overlapping. This may make determining which statute the claim properly arises under difficult. It may be particularly unclear as to allegations concerning an elderly person’s mistreatment at a skilled nursing facility because these facilities often provide both standard and medical care for their residents and are staffed by both persons who do and persons who do not meet NRS 41A.017’s definition of a provider of health care. Thus, in determining whether the gravamen of a claim sounds in professional negligence or elder abuse, courts must give particular consideration to the underlying facts and how they are alleged in the complaint.
The Nevada Supreme Court stated that based on the allegations in Yafchak’s complaint, and drawing all inferences in her favor, it cannot be determined at this juncture that the gravamen of her allegations sound in professional negligence as opposed to elder abuse. While it appears that Yafchak’s allegations primarily concern two related instances—(1) LCC’s failure to properly assess Joan after she fell and (2) LCC’s failure to monitor and care for Joan—there is critical information missing that is necessary to determine whether Yafchak’s complaint avers professional negligence as opposed to elder abuse. For example, as noted above, NRS Chapter 41A only applies to professional negligence committed by a “provider of health care.” Here, based on the allegations in the complaint, it is unclear whether the alleged tortious conduct was a medical decision undertaken by a “provider of health care.” LCC, as the moving party, had the burden of demonstrating Yafchak’s allegations arose from professional negligence committed by a provider of health care. Because Yafchak’s complaint was dismissed prior to any discovery, the Nevada Supreme Court stated that it was confined solely to reviewing Yafchak’s complaint, and looking at the face of the complaint, it cannot be said that there is no set of facts that place Yafchak’s allegations beyond the realm of professional negligence and within the scope of elder abuse. “Thus, we conclude that LCC failed to meet its burden.”
Yafchak v. South Las Vegas Medical Investors, LLC, 138 Nev, Advance Opinion 70.
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