Zohar v. Zbiegien

130 Nev., Advance Opinion 74
IN THE SUPREME COURT OF THE STATE OF NEVADA
MAX ZOHAR, A MINOR; AND DAFNA No. 60050
NOURY, INDIVIDUALLY AND AS THE
NATURAL MOTHER OF MAX ZOHAR,
Appellants, MED
vs.
MICHAEL ZBIEGIEN, M.D., AN SEP 18 2014
INDIVIDUAL; EMCARE, INC., A TRACIF K. I. iNDEMAN
CLE
FOREIGN CORPORATION; EMCARE BY
CHI
PHYSICIAN SERVICES, INC, A
FOREIGN CORPORATION; EMCARE
PHYSICIAN PROVIDERS, INC., A •
FOREIGN CORPORATION; AND
RACHEL LOVERA, R.N., AN
INDIVIDUAL,
Respondents.
Appeal from a district court order, certified as final under
NRCP 54(b), dismissing respondents from a medical malpractice action.
Eighth Judicial District Court, Clark County; Michael Villani, Judge.
Reversed and remanded.
Eglet Wall Christiansen and Artemus W. Ham and Erica D. Entsminger,
Las Vegas,
for Appellants.
Alverson, Taylor, Mortensen & Sanders and David J. Mortensen and Ian
M. Houston, Las Vegas,
for Respondents Michael Zbiegien, M.D.; EmCare, Inc.; EmCare Physician
Services, Inc.; and EmCare Physician Providers, Inc.
Hall Prangle & Schoonveld, LLC, and Michael E. Prangle and Casey W.
Tyler, Las Vegas,
for Respondent Rachel Lovera, R.N.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, GIBBONS, C.J.:
In this opinion, we consider whether an expert affidavit
attached to a medical malpractice complaint, which otherwise properly
supports the allegations of medical malpractice contained in the complaint
but does not identify all the defendants by name and refers to them only
as staff of the medical facility, complies with the requirements of NRS
41A.071. We conclude that in order to achieve NRS 41A.071's purpose of
deterring frivolous claims and providing defendants with notice of the
claims against them, while also complying with the notice-pleading
standards for complaints, the district court should read a medical
malpractice complaint and affidavit of merit together when determining
whether the affidavit meets the requirements of NRS 41A.071. In this
case, the expert affidavit, while omitting several names, adequately
supported the allegations of medical malpractice against respondents
contained in the complaint and provided adequate notice to respondents of
the claims against them. We therefore reverse the district court's order of
dismissal and remand this case to the district court for further
proceedings.
FACTS AND PROCEDURAL HISTORY
Appellant Dafna Noury, mother of then-16-month-old Max
Zohar (collectively, the Zohars), took Max to the emergency room at
Summerlin Hospital for treatment of a parrot bite on his right middle
finger. The medical staff at Summerlin Hospital, including respondents
Michael Zbiegien, M.D., and Rachel Lovera, R.N., irrigated Max's finger,
repaired it, then dressed and bandaged the finger. Several days later, Dr.
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Zbiegien and a nurse examined Max's finger again, and Noury asserts that
they only removed and reapplied the outer dressing while the original
wound dressing was left in place. When Max returned several days later
to have the dressing removed, the Zohars allege that the hospital staff was
unable to remove the inner dressing from Max's finger because it was
stuck to Max's laceration. As a result, the dressings had to be soaked off.
Once the staff removed the dressing, they noted that Max's finger was
discolored. The emergency team consulted two hand specialists—who are
not parties to this appeal—who noted that Max's finger was "dusky,"
swollen, and had "venous/arterial flow compromise" Max underwent a
series of surgeries but eventually required a partial amputation of his
finger.
The Zohars filed a medical malpractice complaint against
multiple defendants, including Summerlin Hospital Medical Center,
Zbiegien, and Lovera, as well as EmCare, Inc.; EmCare Physician
Services, Inc.; and EmCare Physician Providers, Inc. (collectively, the
EmCare entities). 1 The Zohars' complaint asserted claims of medical
malpractice and professional negligence against Zbiegien and Lovera, as
well as vicarious liability against the EmCare entities. The Zohars
attached an expert affidavit of Burton Bentley II, M.D., F.A.A.E.M., to the
complaint pursuant to NRS 41A.071. Dr. Bentley's affidavit stated that,
to a reasonable degree of medical probability, the medical staff in the
emergency department at Summerlin Hospital breached the standard of
care when Max's finger was dressed too tightly. Dr. Bentley
1 TheEmCare entities appear to be related entities within Zbiegien's
physicians group.
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chronologically described Max's treatment and summarized the relevant
medical records and photos that were the basis of his opinions. The
affidavit specified the allegedly negligent activities of several individuals,
as well as the activities of "the staff of the emergency department of
Summerlin Hospital Medical Center, including but not limited to the
responsible physician or physicians, nurse or nurses, and/or ancillary
emergency department staff." 2 The affidavit did not identify Zbiegien,
Lovera, or the EmCare entities by name.
Zbiegien, Lovera, and the EmCare entities filed motions to
dismiss, arguing that Dr. Bentley's affidavit was deficient because it did
not specifically name them as negligent parties. 3 The Zohars opposed the
motions, arguing that the affidavit, when read together with the
complaint, properly supported all allegations contained in the complaint.
In the alternative, the Zohars requested leave to amend their complaint
and expert affidavit. The district court granted the motions to dismiss and
denied the Zohars' motion to amend. 4 The Zohars now appeal.
2 Dr.Bentley also noted that he would need further discovery to
precisely implicate a single treatment date as having been more causative
than the others.
3 Summerlin Hospital also moved to dismiss. The district court
denied Summerlin Hospital's motion to dismiss because it found that
Summerlin Hospital was properly named in the affidavit. Thus, the
Zohars' claims against Summerlin Hospital are still pending in the district
court.
4Thedistrict court found that the Zohars knew of Zbiegien's and
Lovera's identities and actions, "given the medical records at their
disposal and as evidenced by their naming of such parties in their
continued on next page . . .
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DISCUSSION
The district court erred in determining that the Zohars' expert affidavit
was inadequate to support the allegations of medical malpractice
We review a district court order granting a motion to dismiss
de novo. Munda v. Summerlin Life & Health Ins. Co., 127 Nev.
267 P.3d 771, 774 (2011). Such an order will be affirmed only where "it
appears beyond a doubt that the plaintiff could prove no set of
facts ... [that] would entitle him [or her] to relief." Id. (quoting Vacation
Viii., Inc. v. Hitachi Am., Ltd., 110 Nev. 481, 484, 874 P.2d 744, 746
(1994)).
Similarly, we review issues of statutory construction de novo.
Pub. Agency Comp. Trust v. Blake, 127 Nev. „ 265 P.3d 694, 696
(2011). If a statute is clear on its face, we will not look beyond its plain
language. Wheble v. Eighth Judicial Dist. Court, 128 Nev. „ 272
P.3d 134, 136 (2012). But when a statute is susceptible to more than one
reasonable interpretation, it is ambiguous, and this court must resolve
that ambiguity by looking to the statute's legislative history and
"construing the statute in a manner that conforms to reason and public
policy." Great Basin Water Network v. Taylor, 126 Nev. 187, 196, 234 P.3d
912, 918 (2010).
NRS 41A.071 requires that a medical malpractice action must
be filed with "an affidavit, supporting the allegations contained in the
action." (Emphasis added.) NRS Chapter 41A does not, however, define
. . continued
[c]omplaint, however, their expert failed to identify either party by name
or to address either's care with any specificity within his affidavit."
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the level of detail required to adequately "support H" a plaintiffs
allegations. Looking to other sources, the word "support" has varying
definitions. Black's Law Dictionary defines support as "[b]asis or
foundation." Black's Law Dictionary 1577-78 (9th ed. 2009). Additionally,
support has been defined as "to provide with substantiation,"
"corroborate," or "to . . . serve as a foundation." Merriam-Webster's
Collegiate Dictionary 1256 (11th ed. 2007). Given these definitions, and
that the statute does not define what level of support is required, we
conclude that the term "support" in NRS 41A.071 is ambiguous because it
may reasonably be interpreted as merely providing some substantiation or
foundation for the underlying facts within the complaint, or it may also be
interpreted to require that the affidavit corroborate every fact within the
complaint, including individual defendant identities. In light of this
ambiguity, we will evaluate the statute's legislative history and attempt to
construe it in a manner that conforms to reason and public policy. See
Great Basin, 126 Nev. at 196, 234 P.3d at 918.
NRS 41A.071 was enacted in 2002 as part of a special
legislative session that was called to address a medical malpractice
insurance crisis in Nevada. See Borger v. Eighth Judicial Dist. Court, 120
Nev. 1021, 1023, 102 P.3d 600, 602 (2004). At the time, doctors claimed
that medical malpractice "insurers were quoting premium increases of 300
to 500 percent." Hearing on S.B. 2 Before the Senate Comm. of the Whole,
18th Special Sess. (Nev., July 29, 2002) (statement of Governor Guinn).
The Legislature addressed the medical malpractice insurance
crisis, in part, by capping noneconomic damages, requiring settlement
conferences, and supplanting the existing malpractice screening panels
with the expert affidavit requirement under NRS 41A.071. Borger, 120
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Nev. at 1023-24, 1026, 102 P.3d at 602, 604. NRS 41A.071's affidavit
requirement was implemented "to lower costs, reduce frivolous lawsuits,
and ensure that medical malpractice actions are filed in good faith based
upon competent expert medical opinion." 5 Washoe Med. Ctr. v. Second
Judicial Dist. Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006)
(quoting Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005)).
The Governor of Nevada stated that the legislation "balance[d] the needs
of injured parties, patients who seek the best medical care available and
the doctors who must purchase and carry insurance to protect themselves
and their patients." Hearing on S.B. 2 Before the Senate Comm. of the
Whole, 18th Special Sess. (Nev., July 29, 2002) (statement of Governor
Guinn).
As noted above, the legislative history of NRS 41A.071
demonstrates that it was enacted to deter baseless medical malpractice
litigation, fast track medical malpractice cases, and encourage doctors to
practice in Nevada while also respecting the injured plaintiffs right to
litigate his or her case and receive full compensation for his or her
injuries. The legislative history does not reveal, however, the precise level
of specificity that an expert affidavit must include in order to "support" the
allegations in a medical malpractice claim under NRS 41A.071. In light of
this uncertainty, we are left to construe the statute in a manner that
5 Additionally, the affidavit of merit was intended to make up for the
perceived inefficiency of malpractice screening panels by shortening the
time necessary to litigate medical malpractice cases, thereby driving down
the costs of litigation for all parties. See Hearing on LB. 1 Before the
Comm. on Med. Malpractice Issues, 18th Special Sess. (Nev., July 30,
2002) (statement of Assemblywoman Buckley).
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conforms to reason and public policy and thus continues to balance the
interests of both the doctors and the injured patients. See Great Basin,
126 Nev. at 196, 234 P.3d at 918.
Here, the Zohars argue that when the affidavit and complaint
are read together, it is clear that Dr. Bentley is referring to Zbiegien,
Lovera, and the EmCare entities. The Zohars note that Max was treated
in the emergency room over the course of several different visits, making it
difficult, if not impossible, for an expert such as Dr. Bentley to know,
before discovery, the name of every doctor, nurse, or staff member who
was responsible for Max's treatment. Thus, the Zohars argue that when
Dr. Bentley's affidavit is read together with their complaint, it is clear that
all defendants received sufficient notice of the nature and basis of the
Zohars' medical malpractice claims against them and that the lawsuit is
not frivolous or filed in bad faith Zbiegien, Lovera, and the EmCare
entities argue that Dr. Bentley's affidavit does not support the complaint
as required by NRS 41A.071 because it fails to reference or attribute any
negligent acts to them individually by name. Thus, the crux of this issue
is whether courts should• require a plaintiffs NRS 41A.071 affidavit of
merit to independently state every fact required to demonstrate a cause of
action for medical malpractice, or whether courts should read the affidavit
of merit together with the complaint to "ensure that medical malpractice
actions are filed in good faith based upon competent expert medical
opinion" Washoe Med. Gtr., 122 Nev. at 1304, 148 P.3d at 794 (internal
quotation omitted).
We conclude that reason and public policy dictate that courts
should read the complaint and the plaintiffs NRS 41A.071 expert affidavit
together when determining whether the expert affidavit meets the
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requirements of NRS 41A.071. See Great Basin, 126 Nev. at 196, 234 P.3d
at 918; Washoe Med. Ctr., 122 Nev. at 1304, 148 P.3d at 794; see also
NRCP 10(c). Such a reading ensures that our courts are dismissing only
frivolous cases, furthers the purposes of our notice-pleading standard, and
comports with Nevada's Rules of Civil Procedure. See NRCP 10(c)
(exhibits to pleadings are considered part thereof); Borger, 120 Nev. at
1028, 102 P.3d at 605. As we have previously acknowledged, the NRS
41A.071 affidavit requirement is a preliminary procedural rule subject to
the notice-pleading standard, and thus, it must be "liberally construe [d]
. in a manner that is consistent with our NRCP 12 jurisprudence."
Borger, 120 Nev. at 1028, 102 P.3d at 605 (recognizing that "NRS 41A.071
governs the threshold requirements for initial pleadings in medical
malpractice cases, not the ultimate trial of such matters"). Given that the
purpose of a complaint is to "give fair notice of the nature and basis of a
legally sufficient claim and the relief requested," Breliant v. Preferred
Equities Corp., 109 Nev. 842, 846, 858 P.2d 1258, 1260 (1993), and the
purpose of the expert affidavit is to further enable the trial court to
determine whether the medical malpractice claims within the complaint
have merit, both policy considerations are served when the sufficiency of
the affidavit is determined by reading it in conjunction with the complaint.
Additionally, we are hesitant to adopt such a strict
interpretation of NRS 41A.071 as is advocated by respondents because at
this preliminary point in the proceedings, the parties have conducted little
to no formal discovery. Such a harsh interpretation would undoubtedly
deny many litigants the opportunity to recover against negligent parties
when the medical records available to the plaintiff do not identify a
negligent actor by name—especially in res ispa loquitur cases in which the
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parties are simply unable to identify the negligent actor. The majority of
other states that require an affidavit of merit or similar type of expert
substantiation do not require that the affidavit or substantiation
independently establish a claim of medical malpractice against each
defendant. See, e.g., Gadd v. Wilson & Co., 416 S.E.2d 285, 286 (Ga. 1992)
(negligence need not be explicitly linked to the defendant); Kearney v.
Berger, 7 A.3d•593, 604 (Md. 2010) (omitting the name of the defendant
"would not cause [the doctor, other defendants], or the courts any difficulty
in evaluating whether [the doctor] violated the standard of care"); Barber
v. Catholic Health Initiatives, Inc., 951 A.2d 857, 872 (Md. Ct. Spec. App.
2008) (although the certificate did not explicitly identify the defendants,
when read together with the other documents filed, "the [c]ertificate
unequivocally identified all of the [defendants]"); Ellefson v. Earnshaw,
499 N.W.2d 112, 114-15 (N.D. 1993) (concluding that North Dakota's
functionally similar statute "provides for a preliminary screening of totally
unsupported cases [but] does not require the plaintiff to complete
discovery or to establish a prima facie case during that accelerated time
frame"; rather, the expert's affidavit is sufficient if it "tends to corroborate
and support ... allegations of. . . negligence"). Even in instances with
multiple defendants, courts have not required individual names within the
affidavit. See Galik v. Clara Maass Med. Ctr., 771 A.2d 1141, 1152 (N.J.
2001) (referring to a radiologist by his job title and the timing of treatment
was sufficient to identify the defendant radiologist). 6
6 Even
the few states that require the affidavit of merit to state an
independent claim of medical malpractice against each and every
defendant offer opportunities to cure deficiencies. See Scoresby v.
continued on next page. . .
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As a result, we conclude that the district court should have
read Dr. Bentley's affidavit together with the Zohars' complaint to
determine whether the affidavit satisfied the requirements of NRS
41A.071. Under such a reading, we conclude that the Zohars' complaint is
not frivolous or filed in bad faith, and Zbiegien, Lovera, and the EmCare
entities were on sufficient notice of the nature and basis of the Zohars'
medical malpractice claims against them. That is not to say that every
affidavit of merit that fails to identify specific defendants will satisfy NRS
41A.071. Rather, the district court in each instance should evaluate the
factual allegations contained in both the affidavit and the medical
malpractice complaint to determine whether the affidavit adequately
supports or corroborates the plaintiffs allegations. Here, the complaint
. . . continued
Santillan, 346 S.W.3d 546, 557 (Tex. 2011); Hinchman v. Gillette, 618
S.E.2d 387, 394-95 (W. Va. 2005). In Texas, every expert report, even if
substantively deficient, is eligible for the statutory extension to cure any
deficiencies so long as it was timely served, includes a qualified expert's
opinion that the claim has merit, and implicates the defendant's conduct.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2013); Scoresby, 346
S.W.3d at 557. In West Virginia, a defendant cannot challenge the legal
sufficiency of a certificate of merit unless the plaintiff has "been given
written and specific notice of, and an opportunity to address and correct,
the alleged defects and insufficiencies." Hinchman, 618 S.E.2d at 394-95.
Thus, even the states with the most exacting requirements ensure that
medical malpractice plaintiffs are given an opportunity to amend or cure
their claims so that only baseless and frivolous claims are excluded. Given
that NRS 41A.071—unlike the statute in Texas—requires dismissal for
noncompliance with the affidavit-of-merit requirement, Washoe Med. Ctr.,
122 Nev. at 1305, 148 P.3d at 795, we conclude that such a harsh
interpretation would unreasonably deny injured plaintiffs the opportunity
to seek redress against negligent parties.
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stated that upon Max's initial arrival at Summerlin Hospital, Zbiegien
and Lovera treated and dressed Max's finger, and that Zbiegien and a Doe
nurse examined and treated Max's finger on the Zohars' second trip to
Summerlin Hospital. When these allegations are read together with Dr.
Bentley's chronological description of Max's treatment and his opinion
that "the medical staff in the emergency department of Summerlin
Hospital Medical Center breached the standard of care in their treatment
of Max Zohar through the inappropriately tight application of a wound
dressing and/or bandage," it is clear that Zbiegien, Lovera, and the
EmCare entities received sufficient notice of the nature and basis of the
medical malpractice claims against them, and that the district court had
sufficient information to determine whether the action should be allowed
to proceed. 7
CONCLUSION
We conclude that courts should read a medical malpractice
complaint and the plaintiffs NRS 41A.071 expert affidavit together when
determining whether the affidavit satisfies the requirements of NRS
41A.071. Thus, an expert affidavit of merit that fails to specifically name
allegedly negligent defendants may still comply with NRS 41A.071 as to
the unnamed parties if it is clear that the defendants and the court
received sufficient notice of the nature and basis of the medical
malpractice claims. As a result, we conclude that the district court erred
in finding that Dr. Bentley's expert affidavit was inadequate to support
the Zohars' allegations of medical malpractice against respondents. We
7 1n
light of this disposition, we need not address the parties'
remaining arguments.
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therefore reverse the district court's order of dismissal and remand this
case for further proceedings consistenkw,ith.this, opinion
/,
C.J.
Gibbons
We concur:
I &hit Like J.
Pickering
J.
Hardesty
Parraguirre
J.
Douglas
J.
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