MONTANEZ VS. SPARKS FAMILY HOSP., INC.

137 Nev., Advance Opinion /7
IN THE SUPREME COURT OF THE STATE OF NEVADA
SOPHIA MONTANEZ, No. 81312
Appellant,
vs.
SPARKS FAMILY HOSPITAL, INC., A
DELAWARE CORPORATION, D/B/A FILE
NORTHERN NEVADA MEDICAL
DEC 0 9 202
CENTER,
BROWN
Respondent.
IEF DEPUTY
Appeal from a district court order dismissing a complaint in a
medical malpractice action. Second Judicial District Court, Washoe
County; Connie J. Steinheimer, Judge.
Affirmed.
Bradley Paul Elley, Incline Village,
for Appellant.
John H. Cotton & Associates, Ltd., and John H. Cotton and Adam A.
Schneider, Las Vegas,
for Respondent.
BEFORE THE SUPREME COURT, CADISH, PICKERING, and
HERNDON, JJ.
OPINION
By the Court, HERNDON, J.:
NRS 41A.071 provides that "the district court shall dismiss" an
action for professional negligence if the action is filed without the requisite
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affidavit from a medical expert. NRS 41A.100(1)(a), however, allows an
exemption from the medical expert affidavit requirement when "[a] foreign
substance other than medication or a prosthetic device was unintentionally
left within the body of a patient following surgery." The district court
concluded that NRS 41A.100(1)(a) is ambiguous as to whether a "foreign
substance includes bacteria, as appellant Sophia Montanez asserted in her
complaint.
In this opinion, we clarify that NRS 41A.100(1)(a) is not
ambiguous, and "foreign substance" as used within this statute does not
include bacteria. Thus, we conclude that Montanez's medical malpractice
claim was not exempt from the affidavit requirement, and her failure to
include such an affidavit with her complaint rendered her medical
malpractice claim void ab initio. We further conclude that Montanez's
premises liability claim sounds in medical malpractice and was therefore
also subject to the affidavit requirement and similarly void ab initio. We
thus affirm the dismissal of the action.
FACTS AND PROCEDURAL HISTORY
In 2018, Sophia Montanez underwent a surgical procedure on
her right eye at the Northern Nevada Medical Center (NNMC). Shortly
after surgery, her eye became infected, and she is now permanently blind
in that eye. Montanez filed a complaint seeking damages for her injury,
alleging that NNMC was liable for medical malpractice and for a premises
liability claim. NNMC filed a motion to dismiss the complaint for failure to
attach a medical expert affidavit. Montanez opposed the motion, arguing
that a medical expert affidavit was not required because the bacteria that
entered her eye was a foreign substance such that her medical malpractice
claim was exempt under NRS 41A.100(1)(a). As for the premises liability
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claim, Montanez argued that her injuries could have been caused by a
mistake that was not medical in nature, but rather "the failure of [NNMC]
to have a clean building." She argued that without the benefit of discovery,
she had no way of knowing whether the bacteria entered her body due to
professional negligence or "simply.. . . a business-owner's failure to keep
their building clean," which justified her separate premises liability claim.
The district court granted NNMC's motion to dismiss, finding that NRS
41A.100(1)(a) was ambiguous but that Montanez's medical malpractice
claim was not exempt from the affidavit requirement under NRS
41A.100(1)(a) because "Mlle circumstances surrounding this case will
require expert testimony." The court therefore found that Montanez's
medical malpractice claim was void ab initio and dismissed it. The district
court further found that the gravamen of Montanez's premises liability
claim sounded in medical malpractice and therefore dismissed that claim as
well.
DISCUSSION
Standard of review
"This court reviews a district court's order granting a motion to
dismiss for failure to state a claim under a rigorous, de novo standard of
review." Slade v. Caesars Entm't Corp., 132 Nev. 374, 379, 373 P.3d 74, 78
(2016) (internal quotations omitted). A complaint should be dismissed for
failure to state a claim only "if it appears beyond a doubt that [the plaintiff]
could prove no set of facts, which, if true, would entitle [the plaintiff] to
relief." Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d
670, 672 (2008). "[T]his court will recognize all factual allegations in [the
plaintiffs] complaint as true and draw all inferences in [the plaintiffs]
favor." Id. A district court's decision that reaches the correct result, even
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if for the wrong reason, will be affirmed. Saavedra-Sandoval v. Wal-Mart
Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010).
"Statutory interpretation is a question of law, which this court
reviews de novo." Branch Banking & Tr. Co. v. Windhaven & Tollway, LLC,
131 Nev. 1.55, 158, 347 P.3d 1038, 1040 (2015) (internal quotations omitted).
"[I]f a statutes language is clear and unambiguous, it must be given its
plain meaning, unless doing so violates the spirit of the act. A statute is
ambiguous if it is capable of being understood in two or more senses by
reasonably well-informed persons." Griffith v. Gonzales-Alpizar, 132 Nev.
392, 394, 373 P.3d 86, 87-88 (2016) (internal citation omitted) (internal
quotations omitted).
Bacteria is not a "foreign substance" under NRS 41A. 100(1)(a)
"[A] medical malpractice complaint filed without a supporting
medical expert affidavit is void ab initio, meaning it is of no force and effect."
Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1304, 148
P.3d 790, 794 (2006). NRS 41A.100, however, exempts the plaintiff from
providing the affidavit in certain circumstances, including when "Ea] foreign
substance other than medication or a prosthetic device was unintentionally
left within the body of a patient following surgery." NRS 41A.100(1)(a).
We hold that the district court was incorrect in its finding that
NRS 41A.100(1)(a) is ambiguous, because it is clear on the statutes face
that "foreign substance was intended to mean something that a doctor
purposefully implanted or used during surgery that was then left in the
body unintentionally. This is consistent with Cummings v. Barber, in which
we stated that NRS 41A.100(1)(a) applies to foreign objects "implanted or
used" during the at-issue surgery. 136 Nev. 139, 143, 460 P.3d 963, 967
(2020). Indeed, we have used "foreign substance" to refer to objects such as
a surgical needle, Szydel v. Markman, 121 Nev. 453, 455, 117 P.3d 200, 201
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(2005); surgical clips, Cummings, 136 Nev. at 140-41, 460 P.3d at 965-66;
and wire fragments, id.; see also Jaramillo v. Ramos, 136 Nev. 134, 135, 460
P.3d 460, 462 (2020).
That said, the district court was correct in that Montanez's
claim did not fall within the purview of NRS 41A.100(1)(a). As stated above,
the statute is clear on its face that it applies to foreign objects "implanted
or used" during surgery; bacteria falls into neither of these categories.
Moreover, interpreting "foreign substance as including bacteria would be
contrary to the "spirit of the act," Griffith, 132 Nev. at 394, 373 P.3d at 87-
88 (internal quotation omitted), since the purpose of the exceptions to the
affidavit requirement is "to relieve a plaintiff of the burden and expense of
obtaining an expert witness in cases where negligence can be shown based
on common knowledge alone." Cummings, 136 Nev. at 142, 460 P.3d at 966-
67. There are many ways that bacteria could be introduced into and remain
in the body during and/or post-surgery, causing a subsequent infection—
some of which do not result from the medical provider's negligence.
Whether or not a bacterial infection existing in the body post-surgery was
caused by a medical provider's professional negligence is beyond the
purview of the average person's common knowledge, and thus it is outside
the intended scope of the exceptions to the affidavit requirement.
We therefore conclude that although the district court was
incorrect in finding that the statute was ambiguous, it was correct in its
ultimate conclusion that Montanez's rnedical malpractice claim should have
included a medical expert affidavit and was therefore void ab initio. We
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therefore affirm the district court's dismissal of Montanez's medical
malpractice claim. Saavedra-Sandoval, 126 Nev. at 599, 245 P.3d at 1202.1
Montanez's premises liability claim sounds in medical malpractice and
therefore required an expert affidavit to be actionable
"When the duty owing to the plaintiff by the defendant arises
from the physician-patient relationship or is substantially related to
medical treatment, the breach thereof gives rise to an action sounding in
medical malpractice as opposed to simple negligence." Papa v. Brunswick
Gen. Hosp., 132 A.D.2d 601, 603 (N.Y. App. Div. 1987), cited with approval
in Szymborski v. Spring Mountain Treatment Ctr., 133 Nev. 638, 642, 403
P.3d 1280, 1284 (2017). A claim is for medical malpractice "if the jury can
only evaluate the plaintiffs claims after presentation of the standards of
care by a medical expert." Szymborski, 133 Nev. at 642, 403 P.3d at 1284.
However, if "the reasonableness of the health care provider's actions can be
evaluated by jurors on the basis of their common knowledge and experience,
then the claim is likely based in ordinary negligence." Id. at 642, 403 P.3d
at 1284-85. "The distinction between medical malpractice and negligence
may be subtle in some eases, and parties may incorrectly invoke language
that designates a claim as either medical malpractice or ordinary
negligence, when the opposite is in fact true." Id. at 642, 403 P.3d at 1285.
Because of this, "we must look to the gravamen or substantial point or
essence of each claim rather than its form to see whether each individual
claim is for medical malpractice or ordinary negligence." Icl. at 643, 403
P.3d at 1285 (internal quotation omitted).
'Because we conclude that bacteria is not included within the scope
of NRS 41A.100(1)(a), we need not reach Montanez's other arguments in
which she takes issue with the district coures factual analysis.
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Montanez argues that her injury could be attributable to
NNMC's failure to keep its facilities clean, and this is separate from any
form of medical malpractice. We conclude, to the contrary, that the level of
cleanliness that a medical provider must maintain is inherently linked to
the provision of medical treatment; this is reflected in the statutes enacted
by the Nevada Legislature that regulate medical infection prevention
protocol. See NRS 439.865 (requiring that Nevada health facilities develop
an internal patient safety plan that includes an infection control program
to protect the health and safety of patients treated at that medical facility);
NRS 439.873 (requiring that a medical facility designate an officer or
employee to serve as infection control officer of that medical facility). Where
the level of cleanliness relates to the medical services provided, the essence
of the claim requires a medical expert affidavit because it sounds in medical
malpractice. See Szymborski, 133 Nev. at 642, 403 P.3d at 1284 (holding
that when the duty that the defendant owes to the plaintiff is substantially
related to medical treatment, a breach of such duty sounds in medical
malpractice).
Thus, the gravamen of the premises liability claim sounds in
medical malpractice, not common negligence, and the claim is also subject
to the medical expert affidavit requirement. See id.; see also NRS 41A.071.
As a result, this claim cannot be severed from Montanez's first claim and
allowed to proceed.2 Therefore, we conclude that the district court was
correct in dismissing Montanez's premises liability claim.
2Moreover, Montanez's argument that the only expert that she would
be able to find to provide an affidavit would be a "professional janitoe is
unavailing. Montanez could have found an expert to testify in an affidavit
as to the cleanliness protocols and standards that hospitals are supposed to
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CONCLUSION
The exceptions to the affidavit requirement provided in NRS
41A.100 were enacted for the purpose of allowing plaintiffs to file claims
wherein negligence could be deduced with common knowledge alone. Any
terms used within the statute, then, should be interpreted according to this
purpose. We hold that NRS 41A.100(1)(a) is unambiguous and does not
include bacteria in the definition of "foreign substance." We therefore
conclude that the district court was correct in dismissing Montanez's
medical malpractice claim. We further conclude that Montanez's premises
liability claim sounds in medical malpractice, and thus the district court
was also correct in dismissing that claim. Accordingly, we affirm the district
court's order dismissing Montanez's complaint.
J.
Herndon
We concur:
J.
Cadish
Piekti. J.
Pickering
follow and, consequently, whether professional negligence as to these
protocols would have caused a bacterial infection like Montanez
experienced—however, she did not.
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