Flaviano, M.D. v. Dist. Ct. (Neason) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
CASIANO R. FLAVIANO, M.D.; AND No. 83821
SUSHIL R. PATEL, M.D.,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
ME
CLARK; AND THE HONORABLE BITA
APR 2 1 2022
YEAGER, DISTRICT JUDGE,
Respondents,
and
ARLIS NEASON, AS HEIR OF THE
ESTATE OF JEFFREY NEASON; AND
DIGNITY HEALTH MEDICAL GROUP
NEVADA, LLC, A DOMESTIC
LIMITED-LIABILITY COMPANY,
Real Parties in Interest.
ORDER DENYING PETITION
FOR A WRIT OF MANDAMUS
This is an original petition for a writ of mandamus challenging
a district court order denying a motion to dismiss a complaint in a medical
malpractice action. Petitioner argues that writ relief is warranted because
the NRS 41A.071 medical expert affidavit provided by real parties in
interest was not submitted by a professional who practices or has practiced
in an area that is substantially similar to petitioner's practice area. See
NRS 41A.071(2).
SUPREME COURT
OF
NEVADA
079 I947A 4404D
"A writ of mandamus is available to compel the performance of
an act that the law requires . . . or to control an arbitrary or capricious
l
exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial Dist. Court,
124 Nev. 193, 197, 179 P.3d 556, 558 (2008); see NRS 34.160. Writ relief is
generally not available, however, when an adequate arid speedy legal
remedy exists. Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558. A writ
of mandamus is an extraordinary remedy, and whethei- a petition for
extraordinary relief will be considered is solely within this court's
discretion. Smith v. Eighth Judicial Dist. Court, 107 Ne\;. 674, 677, 679,
818 P.2d 849, 851, 853 (1991).
An appeal from final judgment usually constitutes an adequate
remedy at law. Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558
("[B]ecause an appeal from the final judgment typically constitutes an
adequate and speedy legal remedy, we generally decline to consider writ
petitions that challenge interlocutory district court orders denying motions
to dismiss."). Here, petitioner has an adequate remedy at law by way of
appeal from final judgment.
Additionally, we have reviewed the record and decline to
exercise our discretion to grant extraordinary relief here See Borger v.
Eighth Judicial Dist. Court, 120 Nev. 1021, 1028, 102 P.3d 600, 605 (2004)
(explaining that under NRS 41A.071 a medical expert may opine so long as
"their present or former practice reasonably relates to that engaged in by
the defendant at the time of the alleged professional negligence); see
generally Staccato v. Valley Hosp., 123 Nev. 526, 531-32, 170 P.3d 503, 506-
07 (2007) (explaining, in the context of expert witnesses, that the expert's
ability to opine to the standard of care depends upon the procedure or
2
treatment at issue rather than the defendant's area of practice or specific
license). Accordingly, we
ORDER the petition DENIED.
Parraguirre
Hardesty
./414(11-11
Stiglich
cc: Hon. Bita Yeager, District Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
McBride Hall
Greenman Goldberg Raby & Martinez
Gordon Rees Scully Mansukhani LLP/Las Vegas
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
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