Valley Health Sys., Llc Vs. Dist. Ct. (Estate Of Powell)

IN THE SUPREME COURT OF THE STATE OF NEVADA
VALLEY HEALTH SYSTEM, LLC, No. 82250
D/B/A CENTENNIAL HILLS HOSPITAL
MEDICAL CENTER, A FOREIGN
LIMITED LIABILITY COMPANY; DR.
DIONICE S. JULIANO, M.D., AN
INDIVIDUAL; DR. CONRADO C.D.
CONCIO, M.D., AN INDIVIDUAL; AND FILED
DR. VISHAL S. SHAH, M.D., AN
INDIVIDUAL, OCT 8 2021
Petitioners, ELtriiirr 4 A. BROWN
CLEF.' jPitEMc: C•
vs. E'd
DEPUTY CLERK
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
JERRY A. WIESE, DISTRICT JUDGE,
Respondents,
and
ESTATE OF REBECCA POWELL
THROUGH BRIAN POWELL, AS
SPECIAL ADMINISTRATOR; DARCI
CREECY, INDIVIDUALLY AND AS
HEIR; TARYN CREECY,
INDIVIDUALLY AND AS AN HEIR;
ISAIAH KHOSROF, INDIVIDUALLY
AND AS AN HEIR; LLOYD CREECY,
INDIVIDUALLY,
Real Parties in Interest.
ORDER GRANTING PETITION
This is a petition for a writ of mandamus challenging a district
court order denying a motion for summary judgment in a professional
negligence matter on statute of limitations grounds.
SUPREME COURT
OF
NEVADA
z -aciTsv
Reviewing the summary judgment de novo, Wood v. Safeway,
Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we elect to entertain
the petition and grant the requested relief as we conclude the district court
manifestly abused its discretion when it denied summary judgment. All
Star Bail Bonds, Inc. v. Eighth Judicial Dist. Court, 130 Nev. 419, 422, 326
P.3d 1107, 1109 (2014) (A writ of mandamus is available to compel the
performance of an act that the law requires or to control a manifest abuse
of discretion." (internal quotation and citation omitted)); Ash Springs Dev.
Corp. v. O'Donnell, 95 Nev. 846, 847, 603 P.2d 698, 699 (1979) ("Where an
action is barred by the statute of limitations no issue of material fact exists
and mandamus is a proper remedy to compel entry of summary judgment.").
While we generally disfavor petitions for mandamus relief challenging a
district court's summary judgment denial, State ex rel. Dep't of Transp. v.
Thompson, 99 Nev. 358, 361-62, 662 P.2d 1338, 1340 (1.983), we nonetheless
may consider such petitions "where no disputed factual issues exist and,
pursuant to clear authority under a statute or rule, the district court [was]
obligated to dismiss [the] action." Smith v. Eighth Judicial Dist. Court, 113
Nev. 1343, 1345, 950 P.2d 280, 281 (1997).
Petitioners argue that undisputed evidence demonstrates the
real parties in interest were on inquiry notice of their professional
negligence, wrongful death, and negligent infliction of emotional distress
claims by June 11, 2017, at the latest.1 Thus, petitioners contend that the
'Petitioner Valley Health System filed the instant petition. We
permitted Drs. Dionice Juliano, M.D., Conrado Concio, M.D., and Vishal
Shah, M.D., to join the petition. However, the district court granted
summary judgment in favor of Dr. Juliano. Thus, Dr. Juliano is not a proper
2
real parties in interest's February 4, 2019, complaint was time-barred
under NRS 41A.097(2) (providing that plaintiffs must bring an action for
injury or death based on the negligence of a health care provider within
three years of the date of injury and within one year of discovering the
injury, whichever occurs first).2 We agree.
The term injury in NRS 41A.097 means "legal injury." Massey
v. Litton, 99 Nev. 723, 726, 669 P.2d 248, 251 (1983). A plaintiff "discovers
his legal injury when he knows or, through the use of reasonable diligence,
should have known of facts that would put a reasonable person on inquiry
notice of his cause of action." Id. at 728, 669 P.2d at 252. A plaintiff "is put
on 'inquiry notice when he or she should have known of facts that 'would
lead an ordinarily prudent person to investigate the matter further.'" Winn
v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 252, 277 P.3d 458, 462 (2012)
(quoting Inquiry Notice, Black's Law Dictionary (9th ed. 2009)). While the
accrual date for NRS 41A.097(2)s one-year period is generally a question
for the trier of fact, the district court may decide the accrual date as a matter
of law when the evidence is irrefutable. Winn, 128 Nev. at 251, 277 P.3d at
462.
Here, irrefutable evidence demonstrates that the real parties in
interest were on inquiry notice by June 11, 2017 at the latest, when real
party to the instant petition and we direct the clerk of this court to remove
his name from the case caption.
2Petitionersargue, and the real parties in interest do not contest, that
the at-issue claims all sound in professional negligence and are thus subject
to the limitation period under NRS 41A.097(2). See Szymborski v. Spring
Mountain Treatment Ctr., 133 Nev. 638, 642, 403 P.3d 1280, 1284 (2017)
("Allegations of breach of duty involving medical judgment, diagnosis, or
treatment indicate that a claim is for medical malpractice.").
3
party in interest Brian Powell, special administrator for the estate, filed a
complaint with the State Board of Nursing. There, Brian alleged that the
decedent, Rebecca Powell, "went into respiratory distrese and her health
care providers did not appropriately monitor her, abandoning her care and
causing her death. Thus, Brian's own allegations in this Board complaint
demonstrate that he had enough information to allege a prima facie claim
for professional negligence—that in treating Rebecca, her health care
providers failed "to use the reasonable care, skill or knowledge ordinarily
used under similar circumstances by similarly trained and experienced
providers of health care." NRS 41A.015 (defining professional negligence);
1Vinn, 128 Nev. at 252-53; 277 P.3d at 462 (explaining that a "plaintiff s
general belief that someone's negligence may have caused his or her injury"
triggers inquiry notice).3 That the real parties in interest received Rebecca's
death certificate 17 days later, erroneously listing her cause of death as
suicide, does not change this conclusion.4 Thus, the real parties in interest
3The evidence shows that Brian was likely on inquiry notice even
earlier. For example, real parties in interest had observed in real time,
following a short period of recovery, the rapid deterioration of Powell's
health while in petitioners care. Additionally, Brian had filed a complaint
with the Nevada Department of Health and Human Services (NDHHS) on
or before May 23, 2017. Similar to the Nursing Board complaint, this
complaint alleged facts, such as the petitioners' failure to upgrade care,
sterilize sutures properly, and monitor Powell, that suggest he already
believed, and knew of facts to support his belief, that negligent treatment
caused Powell's death by the time he made these complaints to NDHHS and
the Nursing Board.
4The real parties in interest do not adequately address why tolling
should apply under NRS 41A.097(3) (providing that the limitation period
for a professional negligence claim "is tolled for any period during which the
provider of health care has concealed any act, error or omission upon which
the action is based"). Even if they did, such an argument would be
4
had until June 11, 2018, at the latest, to file their professional negligence
claim. Therefore, their February 4, 2019 complaint was untimely.
Given that uncontroverted evidence demonstrates that the
petitioners are entitled to judgment as a matter of law because the
complaint is time-barred under NRS 41A.097(2), see NRCP 56(a); Wood, 121
Nev. at 729, 121 P.3d at 1029 (recognizing that courts must grant summary
judgment when the pleadings and all other evidence on file, viewed in a
light most favorable to the nonmoving party, "demonstrate that no genuine
issue as to any material fact [remains] and that the moving party is entitled
to a judgment as a matter of law" (internal quotations omitted)), we hereby
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order denying petitioners motion for summary
judgment and enter summary judgment in favor of petitioners.
J.
Cadish
Pieku J.
Pickering Herndon
unavailing, as the medical records provided were sufficient for their expert
witness to conclude that petitioners were negligent in Powell's care. See
Winn, 128 Nev. at 255, 277 P.3d at 464 (holding that tolling under NRS
41A.097(3) is only appropriate where the intentionally concealed medical
records were "materiar to the professional negligence claims). Finally, we
have not extended the doctrine of equitable tolling to NRS 41A.097(2), and
the real parties in interest do not adequately address whether such an
application is appropriate under these facts. See Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
(refusing to consider arguments that a party did not cogently argue or
support with relevant authority).
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cc: Hon. Jerry A. Wiese, District Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
John H. Cotton & Associates, Ltd.
Paul Padda Law, PLLC
Eighth District Court Clerk