Wang, M.D. v. Dist. Ct. (Williams) C/W 65877

IN THE SUPREME COURT OF THE STATE OF NEVADA
DR. SAMIR S. BANGALORE, M.D., No. 65877
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
FILED
CLARK; AND THE HONORABLE AUG 0 2 2016
ALLAN R. EARL, DISTRICT JUDGE, TRACIE K. LINDEMAN
Respondents, CLERK OF UPREME COURT
BY '
and DEPUTY C LERK
FELICIA WILLIAMS; AND DR. TIEN
CHANG WANG, M.D.,
Real Parties in Interest.
DR. TIEN CHANG WANG, M.D., No. 66353
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
ALLAN R. EARL, DISTRICT JUDGE,
Respondents,
and
FELICIA WILLIAMS; AND DR. SAMIR
S. BANGALORE, M.D.,
Real Parties in Interest.
ORDER GRANTING PETITION
These consolidated original petitions for writs of mandamus or
prohibition challenge the district court's orders denying petitioners'
motions for summary judgment on medical battery and assault claims
SUPREME COURT
OF
NEVADA
(0) 1947A
ay-2 32 72-
raised by real party in interest Felicia Williams.' Williams filed her
complaint against petitioners Dr. Samir Bangalore and Dr. Tien Chang
Wang, but she did not file an expert affidavit pursuant to NRS 41A.071. 2
This court has original jurisdiction to grant extraordinary writ
relief. Mountain View Hosp., Inc. v. Eighth Judicial Dist. Court, 128 Nev.
180, 184, 273 P.3d 861, 864 (2012); see also Nev. Const. art. 6, § 4. Writ
relief is an extraordinary remedy, and this court will exercise its
discretionary authority to consider a petition "when there is no plain,
speedy, and adequate remedy in the ordinary course of law." Cheung v.
Eighth Judicial Dist. Court, 121 Nev. 867, 869, 124 P.3d 550, 552 (2005)
(internal quotations omitted); see also NRS 34.170. "This court will only
consider writ petitions challenging a district court denial of a motion for
summary judgment when no factual dispute exists and summary
judgment is clearly required by a statute or rule, or an important issue of
law requires clarification." Walters v. Eighth Judicial Dist. Court, 127
Nev. 723, 727, 263 P.3d 231, 234 (2011). Here, because no factual dispute
3A writ of prohibition is appropriate when a district court acts
without or in excess of its jurisdiction. NRS 34.320. We conclude,
however, that a writ of prohibition is improper here because the district
court had jurisdiction to hear and determine the motions for summary
judgment pursuant to NRCP 56. See Goicoechea v. Fourth Judicial Dist.
Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980) (stating that this
court will not issue a writ of prohibition "if the court sought to be
restrained had jurisdiction to hear and determine the matter under
consideration").
2 The Legislature amended NRS 41A.071 during the 2015 legislative
session. 2015 Nev. Stat., ch. 439, § 6, at 2527. Any discussion in this
order related to this statute refers to the 2002 version of the statute in
effect at the time of the cause of action.
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
exists regarding the doctors' lack of intent to commit battery and
summary judgment was required as a matter of law, we exercise our
discretion and consider these writ petitions.
We recently concluded in Humboldt General Hospital v. Sixth
Judicial District Court, 132 Nev., Adv. Op. , P.3d (2016), that a
battery claim based on an allegation of a lack of informed consent requires
an expert affidavit pursuant to NRS 41A.071, unless a plaintiff has
established that there was a complete lack of consent for the treatment or
procedure performed.
Williams alleged in her complaint that she did not consent to
the procedures performed because her employer forced her to go to the
hospital. In opposing summary judgment, Williams presented testimony
from a non-medical expert who opined that her signature was forged on
the consent forms required to be signed prior to admission into the
hospita1. 3 Consistent with our holding in Humboldt, because Williams'
battery claim involved a complete lack of consent, a medical expert
affidavit was not required. Thus, we conclude that the district court
properly determined that summary judgment was not appropriate on the
consent issue because a question of fact remains regarding the consent
forms. See NRS 41A.110.
However, for Williams to survive summary judgment, a
question of fact involving the common law elements of battery must also
be present. "A battery is an intentional and offensive touching of a person
who has not consented to the touching." Conte v. Girard Orthopaedic
3 There
is nothing in the record to suggest that Dr. Wang or Dr.
Bangalore was involved in or aware of the potentially forged signature.
SUPREME COURT
OF
NEVADA
3
(0) 1947A 444S10,
Surgeons Med. Grp. Inc., 132 Cal. Rptr. 2d 855, 859 (Ct. App. 2003); see
also Piedra v. Dugan, 21 Cal. Rptr. 3d 36, 48 (2004) (stating that common
law battery requires "an act which resulted in a harmful or offensive
contact") (internal quotations omitted). "When a motion for summary
judgment is made and supported as required by NRCP 56, the non-moving
party may not rest upon general allegations and conclusions, but must, by
affidavit or otherwise, set forth specific facts demonstrating the existence
of a genuine factual issue." Pegasus v. Reno Newspapers, Inc., 118 Nev.
706, 713, 57 P.3d 82, 87 (2002).
While the complaint generally alleges that the doctors
unlawfully touched her, Williams points to nothing in the record before us
to demonstrate that either doctor touched her in a harmful or offensive
manner without her consent. In fact, Williams testified in her deposition
that she never objected to Dr. Wang ordering a blood test or otherwise
treating her. Instead, she acknowledged that she wanted Dr. Wang to
examine her to prove to her employer that she was not under the influence
of drugs, and she was aware that Dr. Wang was going to contact Dr.
Bangalore to discuss the incident and her medical history and did not
object. Furthermore, Dr. Wang testified at his deposition that he was not
aware that Williams was brought to the emergency room for an employee
drug test by her supervisor, or that she felt compelled to stay there.
The record further shows that Dr. Bangalore did not speak to
or touch Williams until the follow-up appointment a week later, where
Williams still did not express any criticism over the care she received.
Under an agency battery theory, a principal can only be liable if the agent
is first "liable for unlawful acts." Watkins v. Cleveland Clinic Found., 719
N.E.2d 1052, 1064 (1998). Here, because Williams failed to demonstrate
SUPREME COURT
OF
NEVADA
4
(0) 1947A .).)CtI.
the elements of battery by Dr. Wang, Dr. Bangalore cannot be liable.
Thus, Williams has failed to "set forth specific facts demonstrating the
existence of a genuine factual issue," Pegasus, 118 Nev. at 713, 57 P.3d at
87, regarding whether she was touched in a harmful or offensive manner
without consent by either doctor, see Piedra, 21 Cal. Rptr. 3d at 48.
Therefore, we conclude that the district court erred in denying summary
judgment in favor of Bangalore and Wang. Accordingly, we
ORDER the petitions GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to enter summary judgment on behalf of Bangalore and
Wang.
elhitck--Ser , C.J.
Parraguirre
J. J.
Hardesty
, J.
Saitta
Gibbons
cc: Hon. Allan R. Earl, District Judge
John H. Cotton & Associates, Ltd.
Hall Prangle & Schoonveld, LLC/Las Vegas
Mary F. Chapman
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
5
(0) 1947A es,