Piroozi v. Eighth Jud. Dist. Ct.

131 Nev., Advance Opinion 100
IN THE SUPREME COURT OF THE STATE OF NEVADA
ALT PIROOZI, M.D., AND MARTIN No. 64946
BLAHNIK, M.D.,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IF
IN AND FOR THE COUNTY OF DEC 3 1 2015
CLARK; AND THE HONORABLE
JAMES M. BDCLER, DISTRICT JUDGE,
13Y-EIf:.
1- • •
CL Pgi< C
t INDrLmAN
91-1 0 :4,1
Respondents, ilEF izTp ui •
and
TIFFANI D. HURST; AND BRIAN
ABBINGTON, JOINTLY AND ON
BEHALF OF THEIR MINOR CHILD,
MAYROSE LILI-ABBINGTON HURST,
Real Parties in Interest.
Original petition for a writ of mandamus in a medical
malpractice action.
Petition granted.
Cotton, Driggs, Walch, Holley, Woloson & Thompson and John H. Cotton
and Christopher G. Rigler, Las Vegas,
for Petitioner Ah Piroozi, M.D.
Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C.
McBride and Heather S. Hall, Henderson,
for Petitioner Martin Blahnik, M.D.
Eglet Prince and Dennis M. Prince, Las Vegas; Eisenberg Gilchrist & Cutt
and Jacquelynn D. Carmichael, Robert G. Gilchrist, and Jeff M. Sbaih,
Salt Lake City, Utah,
for Real Parties in Interest.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, CA.:
On November 2, 2004, Nevada voters approved the Keep Our
Doctors in Nevada (KODIN) ballot initiative. KODIN included the
adoption of NRS 41A.045, which makes health-care provider defendants
severally liable in professional negligence actions for economic and
noneconomic damages. In this opinion, we address whether, in a health-
care provider professional negligence action, NRS 41A.045 allows a
defendant to argue the percentage of fault of settled defendants and to
include those settled defendants' names on applicable jury verdict forms.
Based on the plain language of the statute, we hold that the provision of
several liability found in NRS 41A.045 entitles a defendant in a qualifying
action to argue the percentage of fault of settled defendants and to include
the settled defendants' names on the jury verdict form where the jury
could conclude that the settled defendants' negligence caused some or all
of the plaintiffs injury.
BACKGROUND
This petition arises out of a professional negligence action.
Real parties in interest, Tiffani Hurst and Brian Abbington, jointly and on
behalf of their infant daughter MayRose, filed a complaint against several
health-care providers, alleging that the providers' professional negligence
caused MayRose to suffer permanent brain damage. All defendants
settled with Hurst and Abbington, except for petitioners Dr. Ali Piroozi
and Dr. Martin Blahnik.
During pretrial proceedings below, Hurst and Abbington filed
a motion in limine to bar petitioners from arguing the comparative fault of
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the settled defendants at trial and including those defendants' names on
jury verdict forms. Relying on NRS 41.141 1 and Banks ex rel. Banks v.
Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004), which interprets NRS
41.141, the district court granted the motion. Petitioners now• ask this
court to issue a writ of mandamus ordering the district court to allow
petitioners to argue the comparative fault of the settled defendants and to
place those defendants' names on the jury verdict forms.
DISCUSSION
Consideration of the writ petition
A writ of mandamus is available to compel the performance of
an act that the law requires or to control an arbitrary or capricious
exercise of discretion. NRS 34.160; Int'l Game Tech., Inc. v. Second
Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). This
court exercises its discretion to consider a petition for a writ of mandamus
only "when there is no plain, speedy and adequate remedy in the ordinary
course of law or there are either urgent circumstances or important legal
issues that need clarification in order to promote judicial economy and
administration." Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867,
869, 124 P.3d 550, 552 (2005) (internal quotation marks omitted).
Generally, an appeal from a final judgment or order is an adequate
remedy precluding such writ relief Int? Game Tech., 124 Nev. at 197, 179
P.3d at 558.
1-NRS 41.141 is a comparative negligence statute that governs the
liability of multiple defendants in actions asserting a comparative
negligence defense.
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We exercise our discretion to consider this writ petition in
light of the important legal issues raised concerning whether NRS 41.141
or NRS 41A.045 applies and the corresponding effect on trials involving
professional negligence by a• health-care provider. We believe that
consideration of this petition will promote judicial economy and
administration in this case and other health-care provider professional
negligence cases pending before the Nevada district courts because the
resolution of the issues presented will promote settlements and reduce the
time and expense of professional negligence trials involving comparative
defense or other settling defendants. Accordingly, we conclude that this
writ petition warrants our consideration.
Merits of the writ petition
Issues of statutory interpretation, even when raised in a writ
petition, are reviewed de novo. Int? Game Tech., 124 Nev. at 198, 179
P.3d at 559. Petitioners contend that the district court abused its
discretion by relying on NRS 41.141(3), which prohibits a jury from
considering the comparative negligence of settled defendants and the
settlement amounts, when a remaining defendant asserts a comparative
negligence defense. Petitioners argue that NRS 41.141 does not apply in
professional negligence actions because it invalidates NRS 41A.045's
abrogation of joint and several liability by preventing petitioners from
arguing the liability of settled defendants. We must resolve the conflict
created when these separate statutes are read together.
The district court began its analysis with NRS 41.141.
Notwithstanding its other limitations, NRS 41.141 applies only to actions
where a defendant asserts comparative negligence as a defense. NRS
41.141(1); see Café Moda, LLC v. Palma, 128 Nev. 78, 80-81, 272 P.3d 137,
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139 (2012). When NRS 41.141 does apply, a settling defendant's
comparative negligence cannot be admitted into evidence or considered by
the jury. NRS 41.141(3). Here, although a comparative negligence
defense asserted against minor plaintiff MayRose would not be a bona fide
issue, see Buck by Buck v. Greyhound Lines, Inc., 105 Nev. 756, 764, 783
P.2d 437, 442 (1989), petitioners' comparative negligence assertions
against plaintiffs Hurst and Abbington are bona fide issues triggering the
application of NRS 41.141. See NRS 41.141(1). Thus, initially, NRS
41.141(3) appears to apply to Hurst and Abbington's claims.
We now turn to the application of NRS 41A.045. NRS 41A.045
states:
1. In an action for injury or death against a
provider of health care based upon professional
negligence, each defendant is liable to the plaintiff
for economic damages and noneconomic damages
severally only, and not jointly, for that portion of
the judgment which represents the percentage of
negligence attributable to the defendant.
2. This section is intended to abrogate joint
and several liability of a provider of health care in
an action for injury or death against the provider
of health care based upon professional negligence.
We have repeatedly stated that if the plain language of a
statute is clear on its face, we will not look beyond that language when
construing the provision, "unless it is clear that this meaning was not
intended." See Szydel v. Markman, 121 Nev. 453, 456-57, 117 P.3d 200,
202 (2005) (internal quotation omitted). NRS 41A.045(1) unequivocally
provides that defendants in professional negligence actions are severally
liable for economic and noneconomic damages. This means that an
"injured person may recover only the severally liable person's
comparative-responsibility share of the injured person's damages,"
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Restatement (Third) of Torts: Apportionment of Liab. § 11 (2000), which is
"the portion of the judgment which represents the percentage of
negligence attributable to the defendant." NRS 41A.045(1). Therefore,
pursuant to NRS 41A.045, we hold that an injured plaintiff in a health-
care provider professional negligence action can recover only the
defendant's share of the injured plaintiffs damages.
Although the aforementioned approach places the risk of an
insolvent or immune defendant on the plaintiff, several liability schemes
are designed to protect individual defendants from liability exceeding the
defendant's fault. See Sowinski v. Walker, 198 P.3d 1134, 1151 (Alaska
2008). That the voters of Nevada intended this meaning is evident not
only by the plain language of NRS 41A.045, but also by the ballot
initiative's explanation section, stating that the provision "imposes •the
risk of nonpayment to the injured party if a defendant is not able to pay
his percentage of damages." Statewide Ballot Questions 2004, Question
No. 3, Explanation.
Based on these conclusions, if defendants can be held
responsible only for their share of an injured plaintiffs damages, it follows
that defendants must be allowed to argue the comparative fault of the
settled defendants and the jury verdict forms must account for the settled
defendants' percentage of fault. See Le'Gall v. Lewis Cnty., 923 P.2d 427,
430 (Idaho 1996) (explaining that "[i]f the jury could conclude, based on
the evidence, that an actor negligently contributed to the plaintiffs injury,
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then the actor must be included on the special verdict form"); Restatement
(Third) of Torts: Apportionment of Liab. § B19 (2000). 2
Consequently, NRS 41.141 and NRS 41A.045, when applied in
cases where the comparative negligence defense is raised, conflict. NRS
41.141 precludes admitting a settling defendant's comparative negligence
into evidence, whereas NRS 41A.045 presumes admission of evidence
allocating damages based on proportionate liability. "Where a general and
a special statute, each relating to the same subject, are in conflict and they
2 Section B19 of the Restatement (Third) of Torts: Apportionment of
Liability (2000), provides as follows:
If one or more defendants may be held severally
liable for an indivisible injury, and at least one
defendant and one other party, settling tortfeasor,
or identified person may be found by the factfinder
to have engaged in tortious conduct that was a
legal cause of the plaintiffs injury, each such
party, settling tortfeasor, and other identified
person is submitted to the factfinder for an
assignment of a percentage of comparative
responsibility.
See also id. § 11 cmt. a (2000) ("[B]ecause liability is limited to defendants'
several share of damages, other nonparties may be submitted to the
factfinder for an assignment of a percentage of comparative
responsibility. . . [,] not to adjudicate their liability, but to enable
defendants' comparative share of responsibility to be determined."); id. §
B19 cmt. h (2000) ("If a jury is the factfinder, the court submits a verdict
form seeking a determination of the total damages suffered by the plaintiff
and the responsibility assigned to each party and each other person
having legal responsibility for plaintiffs damages."); DeBenedetto v. CLD
Consulting Eng'rs, Inc., 903 A.2d 969, 980 (N.H. 2006) ("[A] rule of law
limiting a jury or court to consideration of the fault of only the parties to
an action would directly undermine the New Hampshire legislature's
decision to assign only several liability. . . .").
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cannot be read together, the special statute controls." Laird v. State Pub.
Emps. Ret. Bd., 98 Nev. 42, 45, 639 P.2d 1171, 1173 (1982); see also State,
Dep't of Taxation v. Masco Builder Cabinet Grp., 129 Nev., Adv. Op. 83,
312 P.3d 475, 478 (2013) ("A specific statute controls over a general
statute." (internal quotation omitted)). Because NRS 41A.045 is a special
statute focusing specifically on professional negligence of a provider of
health care, it governs here.' Thus, when applicable, NRS 41A.045
displaces NRS 41.141.
Based on the foregoing analysis, the district court was
required to permit petitioners the opportunity to argue the comparative
fault of the settled defendants and include those defendants' names and
an assignment of their percentage of fault on the jury verdict forms. Thus,
we grant the petition and order the clerk of this court to issue a writ of
mandamus directing the district court to vacate the portion of its pretrial
order that conflicts with this decision and to enter a new order holding
that petitioners may argue to the jury that a portion of Hurst and
Abbington's damages was caused by the settled defendants and include
those defendants' names on the jury verdict form for the purpose of
allocating liability among all defendants. 4
'Furthermore, "when statutes are in conflict, the one more recent in
time controls over the provisions of an earlier enactment." Laird, 98 Nev.
at 45, 639 P.2d at 1173. The Legislature added section 3 of NRS 41.141 to
the statute in 1987; Nevada voters adopted NRS 41A.045 in 2004.
4We note that the dissent appears to rely on NRS 17.245, yet NRS
17.245 was not argued at the district court, was not discussed in the
district court's order, and was not argued on appeal by the parties.
Indeed, the district court based the settlement offset on NRS 41.141—not
NRS 17.245—which was in itself an error. NRS 41.141(3) provides for a
continued on next page . . .
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, C.J.
Parraguirre
L.
1 i tek1/4--
Pickering
. . . continued
settlement offset in cases where the defendant raised comparative
negligence as a defense, not in cases where the defendants' liability is
several. Further, our dissenting colleague incorrectly states that NRS
17.245, which offsets a defendant's judgment by the settlement amount,
would create a windfall. However, because the petitioners are only
severally liable for their portion of the apportioned negligence damages,
they are 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 ... ."). NRS 17.225(2) is
taken almost verbatim from the Uniform Contribution Among Tortfeasors
Act § 1(b) (2008), and the purpose of this act was to make each tortfeasor
liable for "his or her percentage of fault and no more." John Munic
Enters., Inc. v. Laos, 326 P.3d 279, 283 (Ariz. Ct. App. 2014) (internal
quotation marks omitted); see Restatement (Third) of Torts:
Apportionment of Liab. § 23(b) (2000) ("A person entitled to recover
contribution may recover no more than the amount paid to the plaintiff in
excess of the person's comparative share of responsibility."); id. at § 11
cmt. c (2000) ("[S]everally liable defendants will not have any right to
assert a contribution claim."); see also Target Stores, a Div. of Dayton
Hudson Corp. v. Automated Maint. Servs., Inc., 492 N.W.2d 899, 904 (N.D.
1992) (holding that defendant was only severally liable for its negligence,
so it did not have a contribution claim). Finally, the dissent makes a
conclusory statement that NRS 41A.045 is discordant with NRS 17.245
but offers no legislative history to support this argument.
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DOUGLAS, J., with whom CHERRY and GIBBONS, JJ., agree,
dissenting:
I respectfully disagree with the majority's analysis as to the
application of NRS 41A.045. NRS 41A.045 is ambiguous and does not
abrogate NRS 17.245's offset provision, making it improper to introduce
any evidence of settlement into the proceedings.
Ambiguity
"A statute is ambiguous when it is capable of being understood
in two or more senses by reasonably informed persons or it does not
otherwise speak to the issue before the court." Chanos v. Nev. Tax
Comm'n, 124 Nev. 232, 240, 181 P.3d 675, 680-81 (2008) (internal
quotation marks omitted).
NRS 41A.045 states:
1. In an action for injury or death against a
provider of health care based upon professional
negligence, each defendant is liable to• the plaintiff
for economic damages and noneconomic damages
severally only, and not jointly, for that portion of
the judgnent which represents the percentage of
negligence attributable to the defendant.
2. This section is intended to abrogate joint
and several liability of a provider of health care in
an action for injury or death against the provider
of health care based upon professional negligence.
NRS 41A.045 contains at least two meaningful points of
ambiguity. First, the use of "each defendant" could be read to either limit
several liability to actions with multiple defendants or permit several
liability, even when there is only one defendant. Second, when NIBS
41A.045 applies, "each defendant is liable. . . severally only. . for that
portion of the judgment which represents the percentage of negligence
attributable to the defendant." It is unclear whether the percentage of
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negligence attributable to the defendant for which she is liable is based
only in relation to other defendants in the action, if there are any, or in
relation to all persons at fault, including settled defendants. Based on
these two points of ambiguity, it is necessary to consider legislative
history, public policy, and reason in construing NRS 41A.045.
Single or multiple defendants
To determine the voter intent of a law that was enacted by a
ballot initiative, this court has considered that ballot's explanation and
argument sections. 1 See Sustainable Growth Initiative Comm. v. Jumpers,
LLC, 122 Nev. 53,63, 65-66, 128 P.3d 452, 460-61 (2006); see also Guinn v.
Legislature of State of Nev., 119 Nev. 460, 467, 76 P.3d 22, 26 (2003). The
explanation section of the ballot questionnaire relevant to NRS 41A.045
states that "[c]urrent law provides that each one of multiple defendants in
medical malpractice actions is severally, but not jointly liable for
noneconomic damages," and that the proposed law would extend several
liability to economic damages. Statewide Ballot Questions 2004, Question
No. 3, Explanation. Thus, voters understood that the then current law,
NRS 41A.041, 2 applied only to actions with multiple defendants, and that
NRS 41A.045 did not propose to change this aspect of the law.
Accordingly, this court can reasonably conclude that Nevada voters
'Examining the ballot materials to determine voter intent is
appropriate because "[t]hose materials are the only information to which
all voters unquestionably had equal access." Patrick C. McDonnell,
Nevada's Medical Malpractice Damages Cap: One for All Heirs or One for
Each, 13 Nev. L.J. 983, 1009 (2013).
2 Repealedby Statewide Ballot Questions 2004, Question No. 3,
effective November 23, 2004.
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intended NRS 41A.045 to apply only to medical malpractice actions with
multiple defendants. As evident in the next subsection, such an
interpretation comports with canons of statutory construction, public
policy, and reason.
Several liability in relation to whom
Requiring multiple defendants for NRS 41A.045 to apply
allows the court to resolve the second ambiguity with a canon of statutory
interpretation. Specifically, "[w] hen a legislature adopts language that
has a particular meaning or history, rules of statutory
construction. . . indicate that a court may presume that the legislature
intended the language to have meaning consistent with previous
interpretations of the language." Beazer Homes Nev., Inc. v. Eighth
Judicial Dist. Court, 120 Nev. 575, 580-81, 97 P.3d 1132, 1135-36 (2004).
To the extent that this court applies this canon to voters adopting
language that has a particular meaning, NRS 41A.045 arguably imposes
several liability only in relation to remaining defendants, and not settled
defendants.
As to settled defendants, one must harmonize NRS 17.245
(effects of release or covenant not to sue) with NRS 41A.045. Allowing for
several liability as between all tortfeasors, including settled defendants,
would be discordant with NRS 17.245(1)(a), which requires a district court
to reduce any judgment against tortfeasors by all amounts paid by settled
defendants that were liable in tort for the same injury or wrongful death.
Specifically, if a defendant could argue a theory of comparative negligence
as to settled defendants, then she would only be liable for her proportional
fault in relation to them. Because the judgment issued against this
defendant would amount to her exact liability, she would then receive a
windfall when NRS 17.245(1)(a) reduced that judgment by all settlement
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amounts. Such an interpretation should be avoided because it would
conflict with NRS 17.245(1)(a)'s function and lead to absurd results. See
Szydel v. Markman, 121 Nev. 453, 457, 117 P.3d 200, 202-03 (2005)
(explaining that when two statutes conflict, this court will attempt to read
the conflicting provisions in harmony to the extent that it does not violate
legislative intent); Gallagher v. City of Las Vegas, 114 Nev. 595, 599-600,
959 P.2d 519, 521 (1998) (stating that statutory interpretation should
avoid absurd results). 3
NRS 41A.041 and NRS 41A.045's legislative history also
supports this interpretation. NRS 41A.041's legislative history warrants
consideration because NRS 41A.045 was written in response to and
borrowed language from NRS 41A.041. NRS 41A.041's legislative history
indicates that the Legislature did not intend for the statute to displace
NRS 17.245(1)(a)'s provision for offsetting a judgment against a defendant
by any settlement amounts from joint tortfeasors. NRS 41A.041's
legislative history also suggests that its purpose was to allow for the same
several liability found in NRS 41.141(4) in all medical malpractice actions,
regardless of whether comparative negligence was asserted as a defense. 4
3 When statutes are in conflict and cannot be read harmoniously,
"the one more recent in time controls over the provisions of an earlier
enactment." Laird v. State of Nev. Pub. Emp. Ret. Bd., 98 Nev. 42, 45, 639
P.2d 1171, 1173 (1982). Thus, if the court determines that NRS 41A.045
was intended to allow for several liability as between all tortfeasors,
including settled defendants, then NRS 17.245(1)(a) would likely not apply
in situations when NRS 41A.045 applied.
4 TheLegislature and voters were silent as to whether a defendant
could introduce evidence of the comparative negligence of a settled
defendant and the settlement amount.
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Given NRS 41A.045's narrow purpose of extending existing lawo to include
several liability for economic damages, any legislative intent behind NRS
41A.041 unrelated to that purpose arguably transfers into the new
statute. 6
Based on the foregoing, it should be construed that NRS
41A.045 prohibits a defendant from arguing the comparative negligence of
settled defendants. That interpretation, would not preclude a defendant
from arguing that a settled defendant was 100 percent at fault. 7 Banks ex
rel. Banks v. Sunrise Hosp., 120 Nev. 822, 844-45, 102 P.3d 52, 67 (2004).
5 What existing law was at that time is unclear because this court
never construed NRS 41A.041. However, relying on NRS 41A.041's
legislative history, it seems likely that the Legislature did not intend to
create a system allowing apportionment of fault to settled defendants
because that would undermine NRS 17.245(1)(a). See Nev. Attorney for
Injured Workers v. Nev. Self-Insurers Ass'n, 126 Nev. 74, 85, 225 P.3d
1265, 1271 (2010) (stating that this court presumes that, when enacting
statutes, the Legislature has a "full knowledge of existing statutes relating
to the same subject" (internal citations omitted)). Thus, it likely follows
that the voters' intent in enacting NRS 41A.045 would be similar.
6Although "KODIN stops 'double-dipping' by informing juries if
plaintiffs are receiving money from other sources for the same injury," this
provision does not appear to include individual settlement amounts; it
may include organizational and corporate settlements. See NRS 42.021.
7Althoughcomporting with existing law, this seems counterintuitive.
A defendant cannot assert comparative negligence against a settled
defendant, but she can argue that a settled defendant is 100 percent
negligent. Any unsuccessful effort made by a defendant to show that a
settled defendant is 100 percent at fault is essentially an argument of
comparative negligence. While this only becomes relevant if settled
defendants' names are on the jury verdict forms and the jury is directed to
apportion fault, it is likely that this leads to some jury speculation and
affects judgments.
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With this in mind, I submit that the district court did not abuse its
discretion in its order granting the Hursts' motion in limine.
NRS 17.245
As to NRS 17.245 (effects of release or covenant not to sue), it
states:
1. When a release or a covenant not to sue
or not to enforce judgment is given in good faith to
one of two or more persons liable in tort for the
same injury or the same wrongful death:
(a) It does not discharge any of the other
tortfeasors from liability for the injury or wrongful
death unless its terms so provide, but it reduces
the claim against the others to the extent of any
amount stipulated by the release or the covenant,
or in the amount of the consideration paid for it,
whichever is the greater; and
(b) It discharges the tortfeasor to whom it is
given from all liability for contribution and for
equitable indemnity to any other tortfeasor.
2. As used in this section, "equitable
indemnity" means a right of indemnity that is
created by the court rather than expressly
provided for in a written agreement.
In association with NRS 17.245(1)(a), this court has stated that "to
prevent improper speculation by the jury, the parties may not inform the
jury as to either the existence of a settlement or the sum• paid." Banks ex
rel. Banks v. Sunrise Hosp., 120 Nev. at 843-44, 102 P.3d at 67 (citing
Moore v. Barmen, 106 Nev. 679, 680-81, 799 P.2d 564, 565 (1990)). 8 NRS
8 Notethat while this rule was mentioned in the context of NRS
41.141, the court expressly stated that this rule was not based on that
statute. Moore, 106 Nev. at 681 n.2, 799 P.2d at 566 n.2.
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41A.045 does not allow for comparative fault theories as to settled
defendants and has no effect on NRS 17.245, thus, the district court
properly applied the law and did not abuse its discretion by forbidding any
discussion as to a settlement occurring and the settlement amount. 9
Defendants' names on jury verdict forms
Lastly, "[t]his court reviews a district court's decision to give a
jury instruction for abuse of discretion." See FGA, Inc. v. Giglio, 128 Nev.,
Adv. Op. 26, 278 P.3d 490, 496 (2012). 10 Here, the district court did not
abuse its discretion by refusing to place settled defendants' names on the
jury verdict forms because that decision is consistent with the law that the
jury may not be informed of settlement or the sum paid. Moore, 106 Nev.
at 681-82, 799 P.2d. at 566.
9Asstated above, if the settlement was with an organization or
corporation, it is possible that NRS 42.021 might dictate a different
outcome.
10 Nevada has no law regarding the standard of review for jury
verdict forms; however, the Fifth Circuit has stated that, like jury
instructions, it reviews verdict forms for an abuse of discretion. Baisden v.
Pm Ready Prods., Inc., 693 F.3d 491, 506 (5th Cir. 2012).
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Therefore, I would sustain the district court as to the non-
inclusion of settled defendants.
Jrbusr ) 11/4" J.
Douglas
We concur:
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