Goldenberg v. Woodard C/W 58151 ( 2014 )

 before a physician can be evaluated for competence in the procedure. This
course was Dr. Goldenberg's only formal training in the colonoscopy
procedure.
Although he requested privileges to perform colonoscopies at
two different hospitals, both hospitals denied his request due to his lack of
demonstrated qualifications to perform the procedure. Dr. Goldenberg
eventually obtained a provisional privilege to perform colonoscopies from
Lake Tahoe Surgery Center (LTSC) on the condition that he perform the
procedures under the supervision of a physician experienced in performing
colonoscopies. LTSC later admitted that this decision was a violation of
its bylaws, as Dr. Goldenberg's experience did not meet LTSC's
credentialing criteria, which require that a physician must have privileges
to perform a procedure at a local hospital in order to obtain privileges to
perform that procedure at LTSC.
In December 2004, Dr. Goldenberg conducted his annual
examination of then 68-year-old Georgia Woodard, and as part of the exam
recommended that she undergo a colonoscopy to screen for cancer. Dr.
Goldenberg told Ms. Woodard that he could perform her colonoscopy at
LTSC. Ms. Woodard testified that Dr. Goldenberg did not disclose to her
that he had never performed a colonoscopy on a patient or that he had
only conditional privileges to perform the procedure at LTSC with
supervision.
Ms. Woodard underwent her colonoscopy at LTSC in March
2005. Although Dr. Goldenberg had previously arranged for a supervising
physician to oversee the procedure, the supervising physician was not
present at the start of Ms. Woodard's colonoscopy. Dr. Goldenberg
initiated the procedure regardless. When Dr. Goldenberg experienced
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difficulty advancing the scope through the colon, the supervising physician
was summoned and took over the procedure.
Ms. Woodard awoke from the procedure in pain and continued
to experience pain over the next week. Despite Dr. Goldenberg's
assurances that her condition was improving, Ms. Woodard went to the
emergency room in extreme pain and was admitted to the hospital.
Subsequent exploratory surgery revealed an instrument-induced half-
dollar-size hole in her colon. Ms. Woodard remained in a coma in the
intensive care unit for three weeks with a ventilator and feeding tube.
The repair of her colon required multiple follow-up surgeries and left Ms.
Woodard with a colostomy bag and difficulty walking for many months.
After her discharge from the hospital, Ms. Woodard spent two additional
weeks in a rehabilitation facility.
Thereafter, Ms. Woodard filed a complaint against Dr.
Goldenberg and LTSC, alleging various tort claims. 1 Following an eight-
day trial, the jury found against Dr. Goldenberg and LTSC on claims of
professional negligence and fraud, awarding Mi. Woodard $610,000 in
economic damages and $1 million in noneconomic damages. The jury
apportioned 80 percent of Ms. Woodard's total damages to negligence and
20 percent to fraud. From this, the jury apportioned 40 percent of the
negligence liability to Dr. Goldenberg.
Dr. Goldenberg filed several post-trial motions, including a
motion to reduce the noneconomic professional negligence damages to an
aggregate cap of $350,000 before apportioning liability between Dr.
'Ms. Woodard's husband Herschel also filed a loss of consortium
claim. Hershel died in 2010, and Ms. Woodard has been substituted in his
place for these consolidated appeals.
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Goldenberg and LTSC pursuant to NRS 41A.035. The district court
denied this motion, concluding that although NRS 41A.035 limits
noneconomic damages per action to $350,000, the limit applied separately
against each defendant.
DISCUSSION
Dr. Goldenberg argues on appeal that the district court erred
by (1) upholding the jury's finding of fraud against him, (2) ruling that
NRS 41A.035's $350,000 damages cap applies separately to each
defendant, and (3) refusing to reduce or offset the damages awarded
against him. 2
Dr. Goldenberg's appeal
Dr. Goldenberg argues on appeal that the district court erred
by finding that Ms. Woodard's fraud claim does not fall within NRS
Chapter 41A's definition of professional negligence. He further argues
2Ms. Woodard also filed a cross-appeal in which she raised various
constitutional challenges to NRS 41A.035's noneconomic damages cap.
Because NRS 41A.035 was not triggered under the district court's
apportionment of her noneconomic damages and because Ms. Woodard
does not point to any arguments made to the district court or any district
court ruling on the constitutionality of NRS 41A.035, Ms. Woodard is not
aggrieved by the district court's judgment. We therefore lack jurisdiction
over this portion of Ms. Woodard's cross-appeal. NRAP 3A(a); Ford v.
Showboat Operating Co., 110 Nev. 752, 756, 877 P.2d 546, 549 (1994) ("A
party who prevails in the district court and who does not wish to alter any
rights of the parties arising from the judgment is not aggrieved."). Both
parties also raised numerous arguments in their appeals that they failed
to properly preserve or develop for appellate review, and we decline to
address those arguments on appeal. Old Aztec Mine, Inc. v. Brown, 97
Nev. 49, 52, 623 P.2d 981, 983 (1981) (providing that this court need not
address issues raised for the first time on appeal); Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
(explaining that this court need not consider claims that are not cogently
argued or supported by relevant authority).
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that there is no evidence in the record that he made any representations
regarding his ability to perform Ms. Woodard's colonoscopy and that his
representation that he could perform the procedure was not fraudulent
because he intended to have a supervising physician assist him at the time
he made the representation.
Fraud as a separate claim from professional negligence
In resolving this issue, this court must first address whether
the district court properly found that Ms. Woodard's fraud claim fell
outside of NRS Chapter 41A's definition of professional negligence.
Although this court has not previously addressed the issue, California
courts have concluded that intentional tort claims do not fall within that
state's Medical Injury Compensatory Reform Act (MICRA) when the
allegations of an intentional tort claim are "qualitatively different than
professional negligence." Unruh-Haxton v. Regents of Univ. of Cal., 76
Cal. Rptr. 3d 146, 155 (Ct. App. 2008) (citing Perry v. Shaw, 106 Cal. Rptr.
2d 70 (Ct. App. 2001)). NRS Chapter 41A is closely aligned with MICRA,
which defines professional negligence in nearly identical language as NRS
41A.015, which defines professional negligence as "a negligent act or
omission to act by a provider of health care in the rendering of professional
services, which act or omission is the proximate cause of a personal injury
or wrongful death." See Cal. Civ. Proc. Code § 3640)(2) (West 2009)
(defining professional negligence as a "negligent act or omission to act by a
health care provider in the rendering of professional services, which act or
omission is the proximate cause of a personal injury or wrongful death");
State ex rel. Harvey v. Second Judicial Dist. Court, 117 Nev. 754, 763, 32
P.3d 1263, 1269 (2001) (holding that a statute derived from a sister state
is presumably adopted with the construction given it by the sister state's
courts).
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When the circumstances giving rise to the allegations of fraud
relate to "wrongful intentional conduct, not mere negligence," California
courts have held that such claims are not subject to professional
negligence statutes. Unruh-Haxton, 76 Cal. Rptr. 3d at 157; see Covenant
Care, Inc. v. Superior Court, 86 P.3d 290, 295 (Cal. 2004) (noting that
"intentional, egregious" conduct cannot be described as "mere 'professional
negligence"). Those courts reason that professional negligence statutes
were not intended to "exempt intentional wrongdoers from liability by
treating such conduct as though it had been nothing more than mere
negligence." Perry v. Shaw, 106 Cal. Rptr. 2d 70, 78 (Ct. App. 2001). And
because legislators have specifically limited the application of certain
statutes to "professional negligence" claims, California courts have
determined that it would be inconsistent with the letter and spirit of those
laws to hold that claims for intentional torts "are really just another form
of professional negligence." Unruh-Haxton, 76 Cal. Rptr. 3d at 157.
We are persuaded by the reasoning of the California courts.
Our statute defines professional negligence as "a negligent act or omission
to act by a provider of health care in the rendering of professional
services." NRS 41A.015. This court reviews questions of law, such as
statutory interpretation, de novo. Estate of Smith v. Mahoney's Silver
Nugget, Inc., 127 Nev. „ 265 P.3d 688, 690 (2011). The medical
malpractice statutory scheme set forth under NRS Chapter 41A limits the
scope of claims to which the professional negligence statutes apply to
claims based on a health care provider's ‘``negligent" acts or omissions.
Such statutes are not applicable where the facts giving rise to the
intentional tort cause of action concern wrongful intentional conduct, not
mere negligence, and are thus qualitatively different from the professional
negligence claim. See Unruh-Haxton, 76 Cal. Rptr. 3d at 155; Perry, 106
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Cal. Rptr. 2d at 77-78; see also Baker v. Sadick, 208 Cal. Rptr. 676, 680-81
(Ct. App. 1984). Willful wrongs, including performing unnecessary or
unconsented-to surgery or procedures and fraudulently inducing a patient
to submit to surgery or procedures, constitute more than mere negligence
and allow for the recovery of additional fraud damages. Baker, 208 Cal.
Rptr. at 680-81.
Whether a cause of action brought against a health care
provider under an intentional tort theory is "qualitatively different" than a
claim for professional negligence subject to NRS Chapter 41A's limitations
should be evaluated on a case-by-case basis. See Smith v. Ben Bennett,
Inc., 35 Cal. Rptr. 3d 612, 615 (Ct. App. 2005) (noting that whether
professional negligence statutes are applicable to claims grounded on
other legal theories must be examined on a case-by-case basis). Here, Ms.
Woodard's professional negligence claim was based on allegations that Dr.
Goldenberg's performance of her colonoscopy fell below the standard of
care. In contrast, her fraud claim arose from Dr. Goldenberg's
representation that he could perform the procedure, despite his knowledge
that he had never performed a colonoscopy, that two hospitals had denied
him privileges to perform colonoscopies based on his lack of experience,
that he had not met the minimum requirements to be evaluated for
competence in the procedure under the American Society of
Gastrointestinal Endoscopists' guidelines, and that his privileges at LTSC
were conditioned on his supervision during the procedure by a doctor
experienced in performing colonoscopies. See Barmettler v. Reno Air, Inc.,
114 Nev. 441, 447, 956 P.2d 1382, 1386 (1998) (setting forth the elements
for a fraudulent misrepresentation claim). Thus, this court concludes that
Dr. Goldenberg's misrepresentation was an "intentional act of egregious
abuse," which exceeds the scope of mere negligence allegations related to
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his falling below the standard of care. Unruh-Haxton, 76 Cal. Rptr. 3d at
157.
The district court was therefore correct in finding that Ms.
Woodard's fraud claim does not fall within NRS Chapter 41A's definition
of professional negligence, and thus, that her fraud damages are not
subject to either NRS 41A.035's cap or NRS 41A.045's abrogation of joint
and several liability.
Substantial evidence supported the jury's finding of fraud
As to Dr. Goldenberg's argument that insufficient evidence
supported the jury's finding of fraud against him, when the sufficiency of
the evidence in support of a claim is challenged on appeal, this court views
all the evidence with inferences in favor of the prevailing party and
determines whether substantial evidence supports the jury's verdict. J.J.
Indus., LLC v. Bennett, 119 Nev. 269, 273, 71 P.3d 1264, 1267 (2003).
"Substantial evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion." Winchell v. Schiff, 124 Nev. 938, 944,
193 P.3d 946, 950 (2008) (internal quotation marks omitted).
In Nevada, an intentional misrepresentation is one "that is
made with either knowledge or belief that it is false or without a sufficient
foundation." Nelson v. Heer, 123 Nev. 217, 225, 163 P.3d 420, 426 (2007);
see also Barmettler, 114 Nev. at 447, 956 P.2d at 1386. When a person
makes a truthful representation, but knows or believes that the
representation is materially misleading because he has failed to provide
additional or qualifying information, the incomplete statement is a
fraudulent misrepresentation. Restatement (Second) of Torts § 529
(1977). "[I]t is . . . fundamental that a person who speaks has a duty to
disclose enough to prevent his words from being misleading. A statement
disclosing favorable information but omitting all reference to material
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unfavorable facts breaches that duty." Baskin v. Hawley, 807 F.2d 1120,
1132 (2d Cir. 1986).
In this case, the jury heard testimony that at the time when
Dr. Goldenberg represented to Ms. Woodard that he could perform her
colonoscopy, he had never performed a colonoscopy on a live patient, and
he had only attended a weekend course on colonoscopy training. Dr.
Goldenberg had also been denied privileges to perform the procedure by
two hospitals and knew that in order to be evaluated for competence in the
procedure he needed to obtain consent to perform supervised colonoscopies
on a number of patients. Dr. Goldenberg also knew that he could only
perform the procedure under the supervision of another doctor. But Dr.
Goldenberg failed to inform Ms. Woodard of these limitations on his ability
to perform the procedure and of his inexperience, and instead, he acted in
a manner that led Ms. Woodard to believe that he was qualified to perform
the procedure himself. Dr. Goldenberg's patient advisor and surgery
scheduler, who scheduled Ms. Woodard's surgery and answered Ms.
Woodard's questions about the procedure, also testified that she would not
have told Ms. Woodard that Dr. Goldenberg was learning to perform the
colonoscopy procedure because Dr. Goldenberg would have frowned on her
giving Ms. Woodard that information.
When inferences from this testimony are viewed in Ms.
Woodard's favor, substantial evidence supports the jury's finding of fraud.
J.J. _Indus., LLC, 119 Nev. at 273, 71 P.3d at 1267; see Winchell, 124 Nev.
at 944, 193 P.3d at 950. Once Dr. Goldenberg volunteered that he could
perform Ms. Woodard's colonoscopy, he was required to provide her with
all the relevant information to prevent his representation from being
misleading. See Nelson, 123 Nev. at 225, 163 P.3d at 426; Baskin, 807
F.2d at 1132. Dr. Goldenberg's failure to provide Ms. Woodard with the
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additional information regarding the limitations on his privileges to
perform her colonoscopy and his inexperience in the procedure was
materially misleading and constituted an intentional misrepresentation.
For these reasons, we affirm the jury's finding of fraud against Dr.
Goldenberg and the damages awarded as a result.
NRS 41A.035 provides an aggregate cap on noneconomic damages
Dr. Goldenberg also challenges the district court's application
of NRS 41A.035's noneconomic damages cap separately with respect to the
negligence damages awarded against each defendant, rather than in the
aggregate. Dr. Goldenberg argues that the district court should have
capped the noneconomic negligence damages award at $350,000 before
apportioning 40 percent of the noneconomic negligence damages to him.
NRS 41A.035 provides that "[in an action for injury or death
against a provider of health care based upon professional negligence, the
injured plaintiff may recover noneconomic damages, but the amount of
noneconomic damages awarded in such an action must not exceed
$350,000." Dr. Goldenberg maintains that the term "action" refers to Ms.
Woodard's entire professional negligence claim as a whole, rather than to
the individual professional negligence claims against Dr. Goldenberg and
LTSC. Dr. Goldenberg relies on this court's decision in United Ass'n of
Journeymen and Apprentices v. Manson, 105 Nev. 816, 820, 783 P.2d 955,
957 (1989), in which we discussed that the terms "action" and "claim"
carry different meanings, and "[u]nlike a claim, an action includes the
original claim and any crossclaims, counterclaims, and third-party
claims." In contrast, the district court relied on State v. Webster, 88 Nev.
690, 695-96, 504 P.2d 1316, 1320 (1972), which implies that the term
action refers to each separate claim, and thus, applies separately to each
defendant.
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"When the language of a statute is expressly clear and
unambiguous, the apparent intent must be given effect, as there is no
room for construction. If, however, a statutory provision is ambiguous,
then this court should attempt to follow the Legislature's intent." Metz v.
Metz, 120 Nev. 786, 791-92, 101 P.3d 779, 783 (2004). A statute is
ambiguous when it is capable of two or more reasonable interpretations.
Clark Cnty. v. S. Nev. Health Dist., 128 Nev. „ 289 P.3d 212, 215
(2012). Because the district court and Dr. Goldenberg's interpretations of
"action" are both reasonable, NRS 41A.035 is ambiguous, and we look to
the legislative history to aid in our interpretation of the statute. Id.In determining the meaning of "action" in NRS 41A.035, the
2004 amendments to now-repealed NRS 41A.031 are particularly helpful.
Before amendment, NRS 41A.031 limited "the noneconomic damages
awarded to each plaintiff from each defendant," while the current version
of NRS 41A.035 limits "the amount of noneconomic damages awarded in
such an action." (Emphases added.) This alteration strongly indicates
that noneconomic damages should be limited on a per-incident basis. See
McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.2d 438, 442 (1986)
("It is ordinarily presumed that the legislature, by deleting an express
portion of a law, intended a substantial change in the law.").
This conclusion is further reinforced by the current statute's
legislative history, which shows that the initiative was intended to set
forth an aggregate cap per incident, with no exceptions. Hearing on S.B.
97 Before the Senate Judiciary Comm., 72d Leg. (Nev. March 24, 2003).
The legislative history also draws comparisons with similar California
legislation, describing NRS 41A.035's counterpart as a cap "per incident,
not per claimant, and not per doctor." Id.; see Cal. Civ. Code § 3333.2(West 2009); Colburn v. U.S., 45 F. Supp. 2d 787, 793 (S.D. Cal. 1998)
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("Neither the California Supreme Court nor the appellate courts have ever
held that a single plaintiff can recover more than the [Medical Injury
Compensation Reform Act] limit for noneconomic damages. To the
contrary, the courts have consistently limited the maximum recovery to
$250,000, regardless of the number of claims alleged.").
Based on the foregoing, we conclude that NRS 41A.035 limits
noneconomic damages to an aggregate of $350,000 per incident, regardless
of how many plaintiffs, defendants, or claims are involved. Mattson, 105
Nev. at 820, 783 P.2d at 957. Thus, the district court should not have
applied NRS 41A.035 on a per-defendant basis, and we reverse in part
that portion of the district court order and remand this matter to the
district court to redetermine damages consistent with this order.
Challenges to the district court's damages rulings
Dr. Goldenberg also challenges the district court's ruling that
he is not entitled to an offset of damages based on LTSC's settlement with
Ms. Woodard. We disagree. NRS 41A.045 has abrogated joint and several
liability in actions based on professional negligence. Because Dr.
Goldenberg is only severally liable for his portion of the apportioned
negligence damages, he is therefore not entitled to an offset. See NRS
17.225(2) ("The right of contribution exists only in• favor of a tortfeasor
who has paid more than his or her equitable share of the common
liability. . ."). Moreover, NRS 17.255 expressly bars an intentional
tortfeasor's right to contribution. See Evans it. Dean Witter Reynolds, Inc.,
116 Nev. 598, 609-10, 5 P.3d 1043, 1050 (2000) (concluding that
intentional tortfeasors are not entitled to an offset based on settlements by
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their joint tortfeasors). We therefore affirm that portion of the district
court's judgment. 3
CONCLUSION
Based on the foregoing, we therefore
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
, C.J.
Gibbons
J. J.
Parraguirre
Cherry Saitta
cc: Ninth Jildicial District Court Dept. 1
Paul FAlamilton, Settlement Judge
Durney & Brennan/Reno
Molof & Vohl
Schuering Zimmerman & Doyle LLP
Andre M. Mura
Douglas County Clerk
3 Dr. Goldenberg also contests the district court's refusal to reduce
Ms. Woodard's economic damages to the amount actually paid in
satisfaction of her medical bills Because Dr. Goldenberg did not challenge
the district court's order regarding the unconstitutionality of portions of
NRS 42.021, which allows evidence relating to collateral source benefits to
be introduced in professional negligence cases, we determine that the
district court properly applied Bass-Davis v. Davis, 122 Nev. 442, 453-54,
134 P.3d 103, 110-11 (2006), to Ms. Woodard's economic damages and did
not err in declining to further reduce the economic damages award.
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cc: Ninth Judicial District Court Dept. 1
Paul F. Hamilton, Settlement Judge
Durney & Brennan/Reno
Molof & Vohl
Schuering Zimmerman & Doyle LLP
Andre M. Mura
Douglas County Clerk
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HARDESTY, J., with whom Pickering, J., agrees, concurring in part and
dissenting in part:
I fully concur with the majority's disposition in this case, but
dissent because I feel this case should be resolved in a published opinion.
Rule 9(a) of the Internal Operating Procedures (TOP) of this court compels
the disposition by opinion of a case that presents "a novel question of law,
an issue of public importance, or sets a new legal precedent."
In these consolidated cases, we resolve not only novel questions of
law but also issues of public importance that set new legal precedent.
Hardesty
I concur:
J.
Pickering
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