Egan v. Chambers , 129 Nev. 239 ( 2013 )

129 Nev., Advance Opinion 25
IN THE SUPREME COURT OF THE STATE OF NEVADA
TAMMY EGAN, No. 56674
Appellant,
vs.
GARY CHAMBERS, DPM, AN
INDIVIDUAL; AND SOUTHWEST
FILE
MEDICAL ASSOCIATES, INC., A APR 2 5 2013
NEVADA CORPORATION,
Respondents.
Appeal from a district court order dismissing a professional
negligence action. Eighth Judicial District Court, Clark County; Jessie
Elizabeth Walsh, Judge.
Reversed and remanded.
Brent D. Percival, Esq., P.C., Las Vegas,
for Appellant.
Hutchison & Steffen, LLC, and Michael K. Wall and L. Kristopher Rath,
Las Vegas,
for Respondents.
BEFORE THE COURT EN BANC.
OPINION
By the Court, CHERRY, J.:
In this opinion, we reexamine whether NRS 41A.071's
affidavit-of-merit requirement applies to claims for professional
negligence. 1 In 2009, we considered the identical question in Fierle v.
Perez, 125 Nev. 728, 219 P.3d 906 (2009). Despite the plain language of
NRS 41A.071, we concluded in Fierle that professional negligence actions
were subject to the affidavit-of-merit requirement. Id. at 736-38, 219 P.3d
at 911-12. While we acknowledge the important role that stare decisis
plays in Nevada's jurisprudence, we recognize that we broadened the
scope of NRS 41A.071, expanding the reach of the statute beyond its
precise words. We now conclude that professional negligence actions are
not subject to the affidavit-of-merit requirement based on the
unambiguous language of NRS 41A.071 and, consequently, we overrule, in
part, our holding in Fierle. The district court therefore erred when it
dismissed appellant's professional negligence complaint for lack of a
supporting affidavit of merit. Accordingly, we reverse the district court's
order and remand this matter to the district court for further proceedings.
FACTS AND PROCEDURAL HISTORY
In 2007, appellant Tammy Egan visited a physician
concerning ongoing pain she was having in her left foot and was referred
to respondent Gary Chambers, a doctor of podiatric medicine, for surgery.
1 NRS 41A.071 provides that:
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.
(Emphasis added to reflect the omission of professional negligence.)
2
Chambers, who was employed by respondent Southwest Medical
Associates, Inc. (SMA), performed several surgical procedures on Egan's
left foot and ankle in July 2007. Following the operation, Egan
complained of darkened skin and blisters around the surgical areas, and
after several follow-up visits, Chambers discovered gangrene in Egan's left
foot. Chambers referred Egan to another podiatric physician, who
ultimately performed three additional surgical operations on her foot in
August and September 2007, including amputating the left great toe and
part of the left foot. Following the procedures and follow-up treatment,
the podiatric physician concluded that Egan would suffer permanent
disability and would not be able to return to her previous employment as a
waitress.
In July 2008, Egan filed a district court complaint for
professional negligence against Chambers and SMA. 2 Although Egan's
2 Egan's complaint asserted causes of action for both professional
negligence and breach of contract. However, because both causes of action
were based on Chambers' alleged "failure to perform medical care which
rose to the level of compliance with the established care owed to [Egan],"
her entire complaint in fact sounded in tort, and issues regarding NRS
41A.071's affidavit requirement thus apply equally to both causes of
action. See State Farm Mut. Auto. Ins. Co. v. Wharton, 88 Nev. 183, 186,
495 P.3d 359, 361 (1972) (noting that, in determining whether an action is
based on contract or tort, this court looks at the nature of the grievance to
determine the character of the action, not the form of the pleadings);
Stafford v. Schultz, 270 P.2d 1, 6 (Cal. 1954) (stating that a patient's
action for injuries based on the physician's negligent treatment of the
patient is an action sounding in tort and not upon a contract); Christ v.
Lipsitz, 160 Cal. Rptr. 498, 501 (Ct. App. 1979) ("It is settled that an
action against a doctor arising out of his negligent treatment of a patient
is an action sounding in tort and not one based upon a contract." (quoting
Bellah v. Greenson, 146 Cal. Rptr. 535, 542 (Ct. App. 1978))).
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complaint alleged that Chambers' medical treatment fell beneath the
standard of care expected of a practicing podiatric physician in Clark
County, podiatrists are not considered "physicians" under NRS Chapter
41A for medical malpractice claim purposes, and thus, Egan filed the
complaint without a supporting NRS 41A.071 affidavit of merit.
Subsequently, Egan filed an amended complaint, also without a
supporting affidavit of merit.
While Egan's case was pending before the district court, this
court issued its decision in Fierle concluding that an affidavit of merit is
required under NRS 41A.071 for both medical malpractice and
professional negligence complaints, including when claims based on
medical malpractice and professional negligence are asserted against a
professional medical corporation. Fierle, 125 Nev. at 734-36, 737-38, 219
P.3d at 911, 912. This court concluded, therefore, that, like medical
malpractice complaints, professional negligence complaints filed without a
supporting affidavit of merit were void ab initio and must be dismissed.
Id. at 741, 219 P.3d at 914.
Relying on Fierle, Chambers and SMA3 moved to dismiss
Egan's complaint in February 2010. The district court granted the motion
and dismissed Egan's complaint without prejudice in July 2010. At that
point, absent the availability of some type of equitable relief, Egan
admittedly was unable to file a new complaint because the statute of
3As there are no allegations that SMA is a hospital, the claims
against SMA also do not fall within the definition of "medical malpractice."
See NRS 41A.009 (including hospitals and their employees in the
definition of medical malpractice).
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limitations for her claims had expired. See NRS 41A.097(2). This appeal
followed.
DISCUSSION
Applying de novo review, we take this opportunity to
reconsider whether NRS 41A.071's affidavit-of-merit requirement applies
to professional negligence claims. See I. Cox Constr. Co. v. CH2
Investments, 129 Nev. , , 296 P.3d 1202, 1203 (2013) (holding that
this court reviews questions of statutory construction de novo). When a
statute is clear on its face, we will not look beyond the statute's plain
language. Wheble v. Eighth Judicial Dist. Court, 128 Nev. „ 272
P.3d 134, 136 (2012); Beazer Homes Nev., Inc. v. Eighth Judicial Dist.
Court, 120 Nev. 575, 579-80, 97 P.3d 1132, 1135 (2004).
NRS 41A.071 provides that the district court shall dismiss,
without prejudice, actions for "medical malpractice or dental malpractice"
filed without an affidavit of merit. The plain language of NRS 41A.071
makes no mention of professional negligence. NRS 41A.071 refers
expressly to "medical malpractice," which in turn is defined as pertaining
to physicians, hospitals, and hospital employees. NRS 41A.009.
"Physician" is defined as a person licensed under NRS Chapters 630 or
633. NRS 41A.013. Podiatrists are not licensed pursuant to NRS
Chapters 630 or 633; rather, they are licensed pursuant to NRS Chapter
635. As such, NRS 41A.071 does not, by its plain terms, apply to Egan's
claims against her podiatrist. See Morrow v. Eighth Judicial Dist. Court,
129 Nev. „ 294 P.3d 411, 414 (2013) ("[I]n the face of that plain
language, we cannot come to another construction.").
Although stare decisis plays a critical role in our
jurisprudence, ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639, 653,
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173 P.3d 734, 743 (2007), our reading of NRS 41A.071 reveals no statutory
ambiguity as previously suggested in Fierle. We now recognize that our
prior decision conflated "medical malpractice" with "professional
negligence" when we read NRS 41A.071 to apply to all professional
negligence claims. In so doing, our construction of NRS 41A.071
unnecessarily reached beyond its plain language. Applying Fierle to
professional negligence claims would be substantially inequitable and
contrary to the plain language of the statute. As a result of Fierle's flawed
application, we must overrule, in part, our holding in that case and clarify
that NRS 41A.071 only applies to medical malpractice or dental
malpractice actions, not professional negligence actions. See ASAP
Storage, 123 Nev. at 653, 173 P.3d at 743 (stating that "[1] egal precedents
of this court should be respected until they are shown to be unsound in
principle' (alteration in original) (quoting Grotts v. Zahner, 115 Nev. 339,
342, 989 P.2d 415, 417 (1999) (Rose, C.J., dissenting))); Payne v.
Tennessee, 501 U.S. 808, 827 (1991) (when governing decisions prove to be
"unworkable or are badly reasoned," they should be overruled). Therefore,
Egan's professional negligence action against Chambers and SMA must
proceed on the merits.
CONCLUSION
For the reasons articulated above, we hold that the plain
language of NRS 41A.071 indicates that professional negligence actions
are not subject to its affidavit-of-merit requirement, and to the extent that
our decision in Fierle v. Perez, 125 Nev. 728, 219 P.3d 906 (2009), conflicts
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with this holding, we overrule it. Accordingly, we conclude that the
district court erred when it dismissed Egan's professional negligence claim
against Chambers and SMA for lack of a supporting affidavit of merit. 4
We reverse the district court's dismissal order and remand this case for
further proceedings consistent with this opinion.
J.
We concur:
C.J.
J.
Gibbons
/C---\ J.
Hardesty
•
cL J.
Parra guirre
J.
J.
Saitta
4 1n
light of our resolution of this appeal, we need not reach Egan's
remaining contentions.
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