George Swails v. United States , 406 F. App'x 124 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 14 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
GEORGE SWAILS, No. 09-17196
Plaintiff - Appellant, D.C. Nos. 2:07-cv-00864-LRH-RJJ
2:07-cv-01329-LRH-RJJ
v.
UNITED STATES OF AMERICA, MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 6, 2010 **
San Francisco, California
Before: HUG, D.W. NELSON and McKEOWN, Circuit Judges.
Appellant George Swails (“Swails”) appeals the dismissal of his lawsuit
against the United States of America under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 1346(b), 2401, 2671-2680. We review de novo the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
dismissal without prejudice or leave to amend. Oki Semiconductor Co. v. Wells
Fargo Bank, 298 F.3d 768, 772 (9th Cir. 2002). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm the district court’s decision.
Swails’s suit against the United States arises out of treatment for the
infection of his finger. SER 3. Swails was treated at the North Las Vegas Family
Health Center by P. James Somers, a physician assistant. SER 2. Both the Center
and Mr. Somers are covered under the FTCA by operation of the Federally
Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n). The district
court dismissed Swails’s suit, finding that he had failed to submit an affidavit of
merit as required by law. Swails appeals the district court’s dismissal, arguing that
the affidavit requirement does not reach his claim because he did not file suit
against a physician or hospital. We disagree.
Claims made under the FTCA are governed by the substantive law of the
state in which the claim arose. 28 U.S.C. § 1346(b)(1). Nevada law provides:
If an action for medical malpractice or dental malpractice is filed in the
district court, the district court shall dismiss the action, without prejudice,
if the action is filed without an affidavit, supporting the allegations
contained in the action, submitted by a medical expert who practices or
has practiced in an area that is substantially similar to the type of practice
engaged in at the time of the alleged malpractice.
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Nev. Rev. Stat. § 41A.071. Medical malpractice, in turn, is defined as “the failure
of a physician, hospital or employee of a hospital, in rendering services, to use the
reasonable care, skill or knowledge ordinarily used under similar circumstances.”
Id. § 41A.009. Finally, a physician is defined as “a person licensed pursuant to
chapter 630 or 633” of the Nevada Revised Statutes. Id. § 41A.013. Physician
assistants, such as Somers, are licensed under chapter 630, see id. § 630.015, and
are therefore physicians for the purposes of a medical malpractice claim. We
conclude that Swails has alleged a medical malpractice claim and was obliged to
submit an affidavit of merit when he filed suit.1 Swails’s arguments to the contrary
are unavailing. The state’s statutory definitions are clear. “Where a statute is clear
on its face, a court may not go beyond the language of the statute in determining
the legislature’s intent.” McKay v. Bd. of Supervisors, 730 P.2d 438, 441 (Nev.
1986); see also United States v. Leal-Felix, --- F.3d ---, No. 09-50426, 2010 WL
4273363, at *7 (9th Cir. Nov. 1, 2010) (“‘[C]ourts must presume that a legislature
says in a statute what it means and means in a statute what it says there. When the
statutory language is plain, the sole function of the courts—at least where the
1
Swails’s own complaint supports the conclusion that he has filed a medical
malpractice claim. He labeled it as such in his first complaint in state court, see
ER 40, and his allegations involve Somers’ and the Center’s duty to “exercise
reasonable care for [his] health and safety.” SER 2.
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disposition required by the text is not absurd—is to enforce it according to its
terms.’” (quoting Carr v. United States, 130 S. Ct. 2229, 2242 (2010))).
The Nevada Supreme Court has held that a complaint filed without the
supporting affidavit is “void ab initio, meaning it is of no force and effect.”
Washoe Med. Ctr. v. Second Judicial Dist. Court, 148 P.3d 790, 794 (Nev. 2006).
Such a complaint “does not legally exist and thus it cannot be amended.” Id.Accordingly, the district court properly granted the government’s motion to
dismiss without prejudice.
AFFIRMED.
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