Ventura v. Ganser, M.D.

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID ALVAREZ VENTURA, No. 81850
Appellant, :
vs. sf F
JOHN H. GANSER, M.D. LIC #9279; . F LL. E D
AND GOMEZ, KOZAR, MCELREATH
AND SMITH, A PROFESSIONAL JUN 30 2022
CORPORATION, ou ZABET NA. Brown
Respondents. pyg2o ,
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting a motion
to dismiss in a medical malpractice matter. Second Judicial District Court,
Washoe County; Barry L. Breslow, Judge.
Appellant David Alvarez Ventura filed a medical malpractice
action alleging that respondent John H. Ganser, M.D., left a foreign object
in him during a 2016 surgery. Therein, Ventura also made a medical
malpractice claim against respondent Gomez, Kozar, McElreath and Smith
(Western Surgical Group) alleging it failed to properly supervise Dr.
Ganser. The district court granted respondents’ motion to dismiss
Ventura’s complaint pursuant to NRS 41A.071 because he did not include a
medical expert affidavit as required by that statute.
Ventura argues that the district court erred dismissing his
complaint because he was exempt from the affidavit requirement under
NRS 41A.100(1)(a)’s res ipsa loquitur exception regarding foreign objects.
See NRS 41A.100(1)(a) (providing that a plaintiff is excused from attaching
a medical expert affidavit to his complaint when he or she alleges “[a]
foreign substance ... was unintentionally left within the body of a patient
following surgery”); Szymborski v. Spring Mountain Treatment Ctr., 133
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Nev. 638, 640-41, 403 P.3d 1280, 1283 (2017) (reviewing a district court
dismissal order pursuant to NRS 41A.071 de novo). We disagree.
In Szydel v. Markman, this court explained that a plaintiff
relying on NRS 41A.100(1)’s exception to the affidavit requirement faces a
heightened pleading requirement to demonstrate “the prima facie
requirements for a res ipsa loquitur case” to survive a motion to dismiss.
121 Nev. 453, 460, 117 P.3d 200, 205 (2005). The district court here
correctly applied the Szydel standard by first examining Ventura’s
complaint, including the attached medical records, and then considering the
contents of those records to determine whether he made a prima facie
showing that his case is one for res ipsa loquitur. See Baxter v. Dignity
Health, 131 Nev. 759, 764, 357 P.3d 927, 930 (2015) (providing that a
district court may consider both the complaint and any exhibits attached
thereto when ruling on a motion to dismiss); see also NRCP 10(c) (“A copy
of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”).
Based on our examination of the pleading and attached
documentation, we conclude that the trial court correctly dismissed
Ventura’s pleading as to Dr. Ganser. The complaint alleged that Dr. Ganser
left a foreign object in his body, but the exhibits attached thereto revealed
that subsequent radiology either failed to show the presence of a foreign
object or contained the radiologist’s opinion that the object was unrelated to
Dr. Ganser’s surgery. Thus, Ventura’s complaint and exhibits contain
inconsistencies negating the prima facie showing necessary to proceed in a
res ipsa case. In light a these inconsistencies, Ventura did not meet his
burden under Szydel with respect to his claim against Dr. Ganser and was
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not entitled to rely on the res ipsa loquitur exception to NRS 41A.071’s
affidavit requirement.
We also conclude that Ventura’s negligent supervision claim
against Western Surgical Group was not exempt from the affidavit
requirement, as the failure-to-supervise allegations underlying that claim
“are inextricably linked to professional negligence.” Est. of Curtis v. S. Las
Vegas Med. Investors, LLC, 136 Nev. 350, 353, 466 P.3d 1263, 1266-67
(2020) (providing that negligent supervision claims “cannot be used to
circumvent NRS Chapter 41A’s requirements governing professional
negligence lawsuits when the allegations supporting the claims sound in
professional negligence”). Because both of Ventura’s claims were subject to
the affidavit requirement and he filed his complaint without an
accompanying expert affidavit, the district court was required to dismiss his
complaint pursuant to NRS 41A.071 and did not err in doing so. See NRS
41A.071 (“If an action for professional negligence is filed in the district court
[without an expert affidavit], the district court shall dismiss the action.”).
And because “a medical malpractice complaint filed without a supporting
medical expert affidavit is void ab initio,” we further conclude that the
district court did not abuse its discretion in dismissing Ventura’s complaint
without leave to amend.! Washoe Med. Ctr. v. Second Judicial Dist. Court,
122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006) (concluding that “[a]
complaint that does not comply with NRS 41.071 is void and must be
dismissed; no amendment is permitted”); see also Whealon v. Sterling, 121
Nev. 662, 665, 119 P.3d 1241, 1244 (2005) (explaining that a district court’s
1We note that Ventura did not seek leave to amend his complaint until
after the district court granted respondents’ motion to dismiss.
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decision to deny leave to amend “will not be disturbed absent a showing of
[an] abuse of discretion”). Based upon the foregoing, we
ORDER the judgment of the district court AFFIRMED.
pdr tact, a
Hardesty
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Herndon
STIGLICH, J., concurring in part and dissenting in part:
While I concur with the majority’s holding regarding Ventura’s
negligent supervision claim, I disagree with its conclusion regarding the res
ipsa loquitur exception.
I believe that the district court erred by dismissing Ventura’s
claim against Dr. Ganser because Ventura’s complaint properly raised NRS
41A.100’s res ipsa loquitur exception to NRS 41A.071’s_ affidavit
requirement. Ventura’s complaint alleged that the doctrine of res ipsa
loquitur applied and that Dr. Ganser left a foreign object in Ventura during
the 2016 surgery. In my view, this satisfies the minimum threshold for
pleading the res ipsa loquitur exception. Cf. Peck v. Zipf, 133 Nev. 890, 893-
94, 407 P.3d 775, 778-79 (2017) (concluding that a plaintiff could not rely on
NRS 41A.100’s res ipsa loquitur exception where the plaintiff alleged
insertion of an IV needle, rather than alleging that a foreign object was left
in him during a “surgery” as the statute requires). And because Ventura’s
complaint satisfies NRS 41A.100’s res ipsa loquitur exception, Ventura was
exempt from the medical affidavit requirement.
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Furthermore, I cannot agree with the majority’s conclusion that
dismissal was warranted because the exhibits attached to Ventura’s
complaint contained inconsistencies. As this court explained in Syzdel v.
Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005), the res ipsa loquitur
exception allows a medical malpractice claim to survive a motion to dismiss
“when the plaintiff is able to present some evidence that one or more of the
factual situations enumerated in NRS 41A.100(1)(a)-(e) exist.” (Emphasis
added.) True, Ventura’s complaint and accompanying exhibits contain some
evidence—such as a physician’s’ opinion that the foreign object “seems
unlikely to be related” to Ventura’s esophageal surgery—that may
undermine his reliance on the res ipsa loquitur exception. But this potential
inconsistency does not negate Ventura’s pleadings nor the fact that some
evidence—for example, the ultrasound report that showed the presence of
the foreign object—supports a res ipsa loquitur determination. See id. at
459, 117 P.3d at 204; see also NRS 41A.100(1)(a) (providing that the res ipsa
loquitur exception may apply when the provider of care leaves a foreign
object in the patient’s body following surgery). Furthermore, the
inconsistencies to which the majority alludes are factual in nature “to be
determined by [a] jury,” not a judge, on a motion to dismiss. Jaramillo v.
Ramos, 136 Nev. 134, 138, 460 P.3d 460, 464 (2020). Thus, I believe that
the majority has incorrectly applied Syzdel to the case at bar.
I believe that the majority has erred in resolving part of this
appeal, as | would have reversed the district court’s dismissal with respect
to the malpractice claim against Dr. Ganser. Accordingly, I respectfully
Spank in part.
Abo J.
Stiglich 7
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ce: Hon. Barry L. Breslow, District Judge
Neal S. Krokosky
Lemons, Grundy & Eisenberg
Washoe District Court Clerk
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