PORCHIA v. CITY OF LAS VEGAS ( 2022 )

138 Nev., Advance Opinion Li
IN THE SUPREME COURT OF THE STATE OF NEVADA
LARRY PORCHIA, No. 78954
Appellant,
vs.
CITY OF LAS VEGAS; STEPHEN
MASSA; NICHOLAS PAVELKA;
WILLIAM HEADLEE; MARINA CLARK;
FILED
JASON W. DRIGGERS; AND LVFR FEB 1 7 2022
RISK MANAGEMENT, EUZABETH A. BROWN
Respondents. CLERK OF SUPREME COURT
BY
PUTY CLERK
Appeal from a district court order granting a motion to dismiss
a tort action. Eighth Judicial District Court, Clark County; Gloria Sturman,
Judge.
Affirmed in part, reversed in part, and remanded.
Olson, Cannon, Gormley & Stoberski and Stephanie M. Zinna, Las Vegas,
for Appellant.
Bradford R. Jerbic, City Attorney, and Jeffry M. Dorocak and Rebecca L.
Wolfson, Deputy City Attorneys, Las Vegas,
for Respondents.
BEFORE THE SUPREME COURT, EN BANC.
SUPREME COURT
OF
NEVADA
(OP 1947A diSF.
..2.2 -0 5,2-SD-
OPINION
By the Court, HERNDON, J.:
Appellant Larry Porchia alleges EMTs denied him medical
treatment and transportation to the hospital after negligently
misdiagnosing him and/or because he was homeless and uninsured. The
district court dismissed Porchia's complaint after concluding that Porchia's
claims were barred by the public duty doctrine and the Good Samaritan
statute. However, accepting Porchia's allegations as true, a failure to
render medical assistance or to transport a patient to the hospital based
solely on their socioeconomic status may qualify as an affirmative act
exempted from the public duty doctrine and as gross negligence, which
would render the Good Samaritan statute inapplicable. Thus, we conclude
the district court erred in dismissing Porchia's complaint in its entirety at
such an early stage in the proceedings.
FACTS AND PROCEDURAL HISTORY
On August 26, 2015, at 3:45 a.m., Porchia's friend called
emergency services on his behalf because he was suffering from severe
stomach pain, vomiting, and hot flashes. Las Vegas Fire and Rescue
(LVFR), which employs respondents Firefighter-Paramedic Stephen Massa
and Firefighter-Advanced Emergency Medical Technician Nicholas
Pavelka, was dispatched to Porchia's location. Massa and Pavelka placed
Porchia on a stretcher, took his vitals, and asked him questions about his
condition. Porchia requested they transport him to the hospital. According
to Porchia's amended complaint, once he informed them that he was
homeless and did not have insurance, Massa and Pavelka diagnosed
Porchia with gas pain, removed him from the stretcher, and concluded he
did not need to be transported to the hospital.
SUPREME COURT
OF
NEVADA
2
(01 I947A
At 11 a.m., another of Porchia's friends called emergency
services again on his behalf because he was still experiencing severe
stomach pain. LVFR was again dispatched, and different EMTs
immediately transported Porchia to the hospital, where he underwent
emergency surgery for a bowel obstruction. Porchia asserts that both the
doctor and the nurse at the hospital informed him that if he had received
medical treatment earlier, he would not have required emergency surgery.
Porchia filed, pro se, an amended complaint alleging negligence
against respondents. The district court granted respondents motion to
dismiss, concluding that, as a matter of law, respondents could not be held
liable for damages based on the public duty doctrine, NRS 41.0336, and the
Good Samaritan statute, NRS 41.500(5). Porchia appealed, and the Court
of Appeals affirmed the district coures order. Porchia v. City of Las Vegas,
No. 78954-COA, 2020 WL 7396925 (Nev. Ct. App. Dec. 16, 2020) (Order of
Affirmance). Porchia filed a petition for review with this court, which we
granted.
DISCUSSION
We review de novo a district court order dismissing a complaint
pursuant to NRCP 12(b)(5). Dezzani v. Kern & Assocs., Ltd., 134 Nev. 61,
64, 412 P.3d 56, 59 (2018). Under our "rigorous standard of reviee of such
orders, we must consider all factual allegations in the complaint as true and
draw all inferences in the plaintiff's favor. Buzz Stew, LLC v. City of North
Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). A "complaint
should be dismissed only if it appears beyond a doubt that [the plaintiff]
could prove no set of facts, which, if true, would entitle [the plaintiff] to
relief." Id, at 228, 181 P.3d at 672.
SUPRIPMECOURT
OF
NEVADA
3
(01 1947A adao
,17Z-Ck 4:44: 7E.
The public duty doctrine
This court first recognized the public duty doctrine in 1979
when it concluded that a police department could not be held liable for
injuries sustained as the result of another's unlawful actions, even when
the injured party claimed the police department failed to provide adequate
security and medical care at a public event. Bruttomesso v. Las Vegas
Metro. Police Dep't, 95 Nev. 151, 153, 591 P.2d 254, 255 (1979). In that
matter, this court emphasized that ítlhe duty of the government . . . runs
to all citizens and is to protect the safety and well-being of the public at
large." Id. The rationale behind the public duty doctrine permits public
entities to carry out their duty to the public without fear of fmancial loss or
reprisal. See generally Scott v. Dep't of Commerce, 104 Nev. 580, 585-86,
763 P.2d 341, 344 (1988) ("[T]he public interest is better served by a
government which can aggressively seek to identify and meet the current
needs of the citizenry, uninhibited by the threat of financial loss should its
good faith efforts provide less than optimal—or even desirable—results."
(quoting Commonwealth, Dep't of Banking & Sec. v. Brown, 605 S.W.2d 497,
499 (Ky. 1980)). Thus, the public duty doctrine shields public entities, like
fire departments or public ambulance services, from liability on the basis
that such entities should not be inhibited by their good faith efforts to serve
the public, even when the outcome of their emergency treatment is less than
desirable.
The public duty doctrine was codified in NRS 41.0336, which
provides that public officers called to assist in an emergency are not liable
for their negligent acts or omissions unless one of two exceptions is
applicable: (1) the public officer made a specific promise or representation
to the person and the person relied on that promise or representation to his
or her detriment, resulting in the officer assuming a special duty to the
SUPREME COURT
OF
NEVADA
4
(0) I947A 0411§PEP
individual person; or (2) the conduct of the public officer "affirmatively
caused the harm." Additionally, the public duty doctrine does not "abrogate
the principal of common law that the duty of governmental entities to
provide services is a duty owed to the public, not to individual persons."
NRS 41.0336.
The special duty exception
Porchia argued in his amended complaint that the first
exception to the public duty doctrine applied because Massa and Pavelka
breached a special duty they owed to him, as an individual, to transport him
to the hospital. Nevada recognizes two ways in which a special duty may
be established: (1) if a statute or ordinance sets forth "mandatory acts
clearly for the protection" of an individual "rather than the public as a
whole," Coty v. Washoe County, 108 Nev, 757, 761 n.6, 839 P.2d 97, 99 n.6
(1992) (internal quotations omitted); or (2) if a public officer, "acting within
the scope of official conduct, assumes a special duty by creating specific
reliance on the part of certain individuals," id. at 760, 839 P.2d at 99. See
also Charlie Brown Constr. Co. v. City of Boulder City, 106 Nev. 497, 505-
06, 797 P.2d 946, 951 (1990) (explaining that a special duty sufficient to
pierce the public duty doctrine was established by a city ordinance that
imposed a duty to act for the benefit of specific entities), abrogated on other
grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).
Porchia failed to point to any Nevada or local law that required
Massa or Pavelka to transport him to the hospital under the asserted
circumstances. The Legislature has recognized that "prompt and efficient
emergency medical care and transportation is necessary for the health and
safety of the people of Nevada," NRS 450B.015, but that statute does not
require EMTs to transport every member of the public who seeks emergency
medical care. If an EMT has exercised his or her duty of care in examining
SUPREME COURT
OF
NEVADA
5
CO) 1947A 4W*.
a patient and determined that no further medical intervention is necessary,
the EMT does not have a duty to transport the patient to the hospital. See,
e.g., Watts v. City of Chicago, 758 N.E.2d 337, 340 (Ill. App. Ct. 2001)
(explaining that a paramedic has a duty to transport a person to the hospital
only if there is a medical necessity); Wright v. Hamilton, 750 N.E.2d 1190,
1194 (Ohio Ct. App. 2001) (providing that if a paramedic utilizes a
reasonable exercise of professional judgment in determining that the
patient does not require additional medical attention, the paramedic need
not transport the patient to the hospital). Accordingly, an EMT's duty is
owed to the public, not to the individual person, and there is no law
establishing a special duty to transport all patients to the hospital.
Porchia further failed to demonstrate a special duty created by
a promise from Massa or Pavelka that he relied upon to his detriment. See
Hines v. District of Columbia, 580 A.2d 133, 136 (D.C. 1990) (stating that
"the mere fact that an individual has emerged from the general public and
become[s] an object of the special attention of public employees does not
create a relationship which imposes a special legal duty"). He does not
assert that Massa or Pavelka promised to transport him to the hospital.
Because Porchia cannot point to a special duty Massa or Pavelka had to
transport him to the hospital, his asserted claims failed to demonstrate the
first exception to the public duty doctrine.
The affirmative harm exception
Porchia also argued in his amended complaint that he was
refused treatment and transport by Massa and Pavelka because of his
socioeconomic status and that the delay in receiving treatment was what
caused his need for surgery. Consequently, he argued, the second exception
to the public duty doctrine applies because, accepting the factual assertions
as true, Massa and Pavelka affirmatively caused him harm. He alleged that
SUPREME COURT
OF
NEVADA
6
(01 1947A atlelp
they took affirmative steps by removing him from the stretcher when they
learned he was homeless and uninsured.
In Coty v. Washoe County, 108 Nev. 757, 760-61, 839 P.2d 97,
99 (1992), we recognized that NRS 41.0336 did not define the phrase
"affirmatively caused the harm," and we defined the phrase as meaning
"that a public officer must actively create a situation which leads directly to
the damaging result." Accordingly, to have invoked the affirmative harm
exception to the public duty doctrine, Porchia must have alleged facts that,
when taken as true, demonstrate that Massa and Pavelka created a
situation that led directly to Porchia's alleged harm and that their actions
"actively and continuously" operated to bring about his harm. See id. at
760, 839 P.3d at 99 (explaining that in negligence actions, legal cause is
determined when the actor's negligent conduct actively and continuously
operates to bring about the harm to another" (internal quotations omitted)).
The Court of Appeals of Utah has further described when
affirmative acts by a public officer establish liability under the affirmative
act exception to the public duty doctrine. Faucheaux v. Provo City, 343 P.3d
288, 293 (Utah Ct. App. 2015).
(Me public duty doctrine applies only to the
omissions of a governmental actor. Thus, where the
affirmative acts of a public employee actually
causes the harm . . . the public duty doctrine does
not apply. Affirmative acts include active
misconduct working positive injury to others, while
omissions are defined as passive inaction, i.e., a
failure to take positive steps to benefit others, or to
protect them froin harm. A negligent affirmative
act leaves the plaintiff positively worse off as a
result of the wrongful act, whereas in cases of
negligent omissions, the plaintiffs situation is
7
unchanged; she is merely deprived of a protection
which, had it been afforded her, would have
benefitted her.
Id. (internal quotation marks and citations omitted). We find this analysis
persuasive.
This court has considered the affirmative harm exception only
in one case, in which a police officer pulled over an intoxicated driver, cited
him for speeding, directed him to park his car on the side of the road, and
arranged for the driver to be transported home, but left before the driver's
transportation arrived. Coty, 108 Nev. at 758-59, 839 P.2d at 98. The driver
then resumed driving and collided with another vehicle, killing himself and
the passenger in the other vehicle. Id. at 759, 839 P.2d at 98. In the
wrongful death action that was subsequently filed against the officer, this
court concluded that because the driver ignored the police officer's order to
park his car on the side of the road, the police officer was not the active and
direct cause of the harm. Id. at 762, 839 P.2d at 100. Thus, the public duty
doctrine precluded the wrongful death action. Id. While Coty clearly
established the appropriate test, the facts of that case are not directly
analogous to the present case, so we look to other jurisdictions for
persuasive authority on this matter.
In Woods v. District of Columbia, 63 A.3d 551, 552 (D.C. 2013),
EMTs refused to transport the appellant after misdiagnosing her symptoms
of slurred speech, loss of balance, and vomiting as a side effect of recently
quitting smoking. The next day, appellant was transported to the hospital
by different EMTs, where it was determined she had suffered a stroke. Id.The District of Columbia Court of Appeals held that detrimental reliance on
"a negligent judgment call, discretionary determination, or incorrect
statement of fact by a [public] employee providing on-the-scene emergency
SUPREME COURT
services does not constitute the kind of actual and direct worsening of the
OF
NEVADA
8
40) I 947A .116#4D
'
plaintiffs condition that will permit imposition of negligence liability
despite the public-duty doctrine." Id. at 557 (internal quotations omitted).
In Johnson v. District of Columbia, 580 A.2d 140, 141 (D.C.
1990), the decedent suffered a heart attack and, after three 911 calls and a
30-minute delay, firefighters arrived on the scene but lacked equipment to
examine or treat the decedent other than to administer cardiopulmonary
resuscitation. Sometime later, EMTs arrived, began to treat the decedent,
and immediately transported her to the hospital, where she died. Id. A
doctor at the hospital stated that if she had arrived earlier, he could have
saved her. Id. There was no evidence that some act by the firefighters made
the decedent's condition worse than it would have been if the firefighters
had failed to arrive at all or not done anything after their arrival. Id. at
142. Because the firefighters active conduct did not actually and directly
worsen the decedent's condition, the District of Columbia Court of Appeals
concluded the public duty doctrine barred firefighter liability. Id. at 142-
43.
In Faucheaux v. Provo City, a husband and wife fought earlier
in the day, resulting in police intervention; later, the wife texted the
husband goodbye and took prescription pills. 343 P.3d at 291. The husband
called 911 and told police officers his wife was suicidal and abusing
prescription drugs and asked them to call EMTs. Id. The police spoke to
the wife, concluded she just needed to "sleep it off," tucked her into bed, and
told the husband to leave her alone. Id. When the husband checked on her
hours later, she was dead. Id. The Court of Appeals of Utah concluded that
by tucking the wife into bed and admonishing the husband to leave the wife
alone, the police officers undertook affirmative actions, rather than
omissions, which left the wife worse off. Id. at 293-94. Because the police
officers did not merely fail to help but instead hindered the situation, the
SUPREME COURT
OF
NEVADA
9
10I I947A .411DP
f
court concluded that the police officers had taken affirmative actions and
the public duty doctrine did not protect the police officers from liability. Id.
at 294.
Because the present case was resolved at an initial stage of the
proceedings, the facts have not been as fully developed as some of the cases
discussed above. Therefore, to the extent Porchia contends that Massa and
Pavelka misdiagnosed him, which led them to not transport him to the
hospital for further medical attention, he fails to demonstrate facts
supporting an affirmative action by Massa or Pavelka causing him harm.
A diagnosis made by EMTs based on their medical expertise, which later is
determined to be incorrect, is more akin to an omission by EMTs than to an
affirmative action causing harm. Therefore, Porchia's allegations that
Massa and Pavelka misdiagnosed him do not qualify for the affirmative
action exception to the public duty doctrine.
Nevertheless, because we must accept all of Porchia's factual
assertions in his amended complaint as true, we must accept as true his
allegation that Massa and Pavelka removed him from the stretcher upon
learning that he was homeless and uninsured and refused to transport him
based on his socioeconomic status, not a misdiagnosis. If these facts are
supported by evidence, they would establish an affirmative action by Massa
and Pavelka, not a mere omission/misdiagnosis. It would be more than a
passive action that left Porchia in the same situation he was in earlier.
Instead, this would be an affirmative action that hindered Porchia, causing
a delay in his medical treatment, which according to the facts asserted in
his amended complaint was the only reason he required emergency surgery.
Therefore, the facts alleged by Porchia met the affirmative harm exception
to the public duty doctrine. Accordingly, we conclude the district court erred
10
in dismissing the amended complaint in its entirety under the public duty
doctrine.
The Good Samaritan statute
Next, Porchia claims the district court also erred in dismissing
his action under the Good Samaritan statute, NRS 41.500(5), because the
facts alleged in his amended complaint, taken as true, demonstrated
Massa's and Pavelka's failure to render medical assistance based on
Porchia's socioeconomic status and would establish gross negligence. NRS
41.500(5) provides that any person employed by a public fire-fighting
agency and authorized to render emergency medical care
is not liable for any civil damages as a result of any
act or omission, not amounting to gross negligence,
by that person in rendering that care or as a result
of any act or failure to act, not amounting to gross
negligence, to provide or arrange for further
medical treatment for the injured or ill person.
NRS 41.500(5) does not define gross negligence, but we have previously
defined it as "an act or omission respecting legal duty of an aggravated
character as distinguished from a mere failure to exercise ordinary care."
Cornella v. Justice Court, 132 Nev. 587, 594, 377 P.3d 97, 102 (2016)
(quoting Hart v. Kline, 61 Nev. 96, 100, 116 P.2d 672, 674 (1941)). Gross
negligence is a "very great negligence, or the absence of slight diligence, or
the want of even scant care" that "amounts to indifference to present legal
duty, and to utter forgetfulness of legal obligations so far as other persons
may be affected" but "falls short of being such reckless disregard of probable
consequences as is equivalent to a willful and intentional wrong." Hart, 61
Nev. at 100-01, 116 P.2d at 674 (quoting Shaw v. Moore, 162 A. 373, 374
(Vt. 1932)).
SUPREME COURT
oç
NEVADA
11
(0) 1947A ataglia
177.i•;:;,+;:;•:T
As discussed above, because we must accept Porchia's
allegations as true, an EMTs decision to not render medical assistance or
assist a patient with obtaining further medical attention based purely on
the patient's socioeconomic status might rise to the level of gross negligence.
Such a decision could amount to an aggravated act, absent of even slight
diligence and also indifferent to legal obligations owed to the patient. Thus,
we conclude Porchia's factual claims may be sufficient to assert Massa's and
Pavelka's actions amounted to gross negligence, rendering the application
of Good Samaritan protection under NRS 41.500(5) improper. Accordingly,
we conclude the district court erred in dismissing Porchia's amended
complaint in its entirety under the Good Samaritan statute.
CONCLUSION
The district court properly concluded that the specific duty
exception to the public duty doctrine did not apply because paramedics do
not have a duty to transport patients who in their medical opinion do not
require further medical attention, and because Massa and Pavelka did not
make a specific promise to Porchia to transport him on which he relied to
his detriment. Additionally, to the extent Porchia's claim for negligence was
based on Massa's and Pavelka's misdiagnosis, the district court also
properly concluded that the affirmative action exception to the public duty
doctrine did not apply. Nevertheless, because we have to accept Porchia's
claims in his amended complaint as true, and because he alleged that Massa
and Pavelka refused to transport him to the hospital on the basis that he
was homeless and uninsured, the district court erred in concluding the
affirmative action exception to the public duty doctrine could not apply and
SUPREME COURT
OF
NEVAOA
12
I947A IOW
that the Good Samaritan statute necessarily precluded Porchia's requested
relief. Accordingly, we affirm the district coures order to the extent it
dismissed Porchia's claims based on misdiagnosis, reverse it to the extent it
dismissed claims based on socioeconomic discrimination, and remand for
further proceedings on the surviving claims.
J.
Herndon
We concur:
ajt1114 J26%te"'":"
Parraguirre
J.
Hardesty
.41,4sC4-0
Stiglich
J.
Cadish
J.
Silver
Add, 7 J.
Pickering
SUPREME COURT
OF
NEVADA
13
in) 1,447A AVSN7