Goldsmith v. State

 orders granting summary judgment and denying declaratory relief is de
novo. See Flamingo Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 509,
217 P. 3d 546, 551 (2009) (explaining that the constitutionality of a statute
is a question of law, which this court reviews de novo); see also Las Vegas
Taxpayer Accountability Comm. v. City Council of Las Vegas, 125 Nev.
165, 172, 208 P.3d 429, 434 (2009); Wood v. Safeway, Inc., 121 Nev. 724,
729, 121 P.3d 1026, 1029 (2005). A statute is unconstitutionally vague if
(1) it is worded such that a person of ordinary intelligence would not have
fair, notice of prohibited conduct, or (2) its standards are so weak that
discriminatory enforcement is either authorized or encouraged. See
Flamingo Paradise Gaming, 125 Nev. at 512, 217 P.3d at 553-54 (noting
that for facial challenges, the statute must be vague in all of its
applications).
NRS 630.301(9) states that a physician may be disciplined for
"engaging in conduct that brings the medical profession into disrepute,
including, without limitation, conduct that violates any provision of a code
of ethics adopted by the Board . . ." Appellants argue that the statute is
vague and ambiguous because it references a code of ethics, which the
Board of Medical Examiners has not adopted. We disagree. The plain
language of the statute is clear that while a violation of a code of ethics
adopted by the Board may be one ground for discipline, the limit of this
provision is a physician's "engag[ement] in conduct that brings the medical
profession into disrepute." Disrepute has been defined as a "loss of
reputation; dishonor." Black's Law Dictionary 506 (8th ed. 2004); see also
Merriam-Webster's Collegiate Dictionary 362 (11th ed. 2007) (defining
disrepute as a "lack or decline of good reputation"). And reputation means
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"Mlle esteem in which a person is held by others." Black's Law Dictionary
1331 (8th ed. 2004); see also Merriam-Webster's Collegiate Dictionary 1058
(11th ed. 2007) (defining reputation as "overall quality or character as
seen or judged by people in general" and "a place in public esteem or
regard"). Based on these plain definitions, conduct that brings the
medical profession into disrepute is conduct that results in a loss of the
public's regard for the medical profession. We therefore conclude that
NRS 630.301(9) is not unconstitutionally vague or ambiguous, and thus,
the district court properly granted summary judgment in respondents'
favor on this issue. See Flamingo Paradise Gaming, 125 Nev. at 512, 217
P.3d at 553; see also Ransdell v. Clark Cnty., 124 Nev. 847, 859, 192 P.3d
756, 764 (2008) CA law will be upheld against a vagueness claim if its
terms can be made reasonably certain by reference to other definable
sources.") (Internal quotation marks omitted).
Next, we consider appellants' argument that NAG 630.040 is
overly broad, unconstitutionally vague, and ambiguous because it does not
explain how the "reasonable care" standard is determined and it
encapsulates new, novel, or experimental treatments. NAC 630.040
defines "malpractice" for the purposes of NRS Chapter 630 as "the failure
of a physician, in treating a patient, to use the reasonable care, skill, or
knowledge ordinarily used under similar circumstances." The language of
this regulation mirrors NRS 41A.009, the special statutory cause of action
for medical malpractice. Although the term "reasonable care" standing
alone might be vague, its meaning is well established in light of authority
in the tort and medical malpractice context. See In re Discipline of Lerner,
124 Nev. 1232, 1245, 197 P.3d 1067, 1077 (2008) (denying a facial
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vagueness challenge to a rule of professional conduct when the allegedly
vague term's meaning "is readily perceptible in light of authority
construing the term"). Furthermore, a statute that "conveys a definite
warning as to proscribed conduct when measured by common
understanding and practices will satisfy due process"—it does not need to
detail each and every act or conduct that is prohibited. Brody v. Barasch,
582 A.2d 132, 137 (Vt. 1990). Accordingly, we conclude that NAC 630.040
is not unconstitutionally vague, ambiguous, or overly broad, and thus, the
district court also properly granted summary judgment in respondents'
favor on this issue. See Flamingo Paradise Gaming, 125 Nev. at 512, 217
P.3d at 553.
Finally, appellants challenge the district court's order
awarding respondents attorney fees under NRS 622.410, and argue that
the complaint did not meet the requirements of the statute. The district
court may award reasonable attorney fees and costs to a regulatory board
when the regulatory board is the prevailing party in an action "relate[d] to
. . . the enforcement of any provision of this title which the regulatory body
has the authority to enforce, [or] any regulation adopted pursuant
thereto." NRS 622.410; see also NRS 622.060 (defining regulatory body).
Because the enforcement of the provisions at issue is dependent upon a
finding that such provisions are constitutional, see Flamingo Paradise
Gaming, 125 Nev. at 518, 217 P.3d at 557 (describing a facial vagueness
challenge to a statute as a "test for civil enforcement"), appellants'
complaint was related to the Board's enforcement abilities, and the district
court therefore did not abuse its discretion in awarding attorney fees to
respondents based on NRS 622.410. See Kahn v. Morse & Mowbray, 121
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Nev. 464, 479, 117 P.3d 227, 238 (2005) (explaining that this court reviews
a district court's award of attorney fees for an abuse of discretion).
Accordingly, we
ORDER the judgment of the district court AFFIRMED.'
Ae,
Hardesty
4,,—;
Douglas
CHERRY, J., dissenting:
This appeal raises important statutory interpretation issues
regarding physician discipline and may have a widespread effect on the
practices and reputations of all physicians in this state, not just
appellants. Because of this, and the vital role that physicians hold in our
society, oral argument appears warranted here, and I would not resolve
this appeal as submitted for decision on the briefs. For these reasons, I
respectfully dissent.
'To the extent that appellants' arguments have not been expressly
addressed in this order, we conclude that those arguments lack merit.
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cc: Hon. Stefany Miley, District Judge
M. Nelson Segel, Settlement Judge
Halter Law
Bradley 0. Van Ry
Eighth District Court Clerk
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