Opinion
No. 67034
12-17-2015
JOSEPH K. DAUKSAVAGE, Appellant, v. FRIEDA HULKA, M.D., Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
Appeal from an order granting a motion to dismiss in a medical malpractice action. Second Judicial District Court, Washoe County; Jerome Polaha, Judge.
FACTUAL AND PROCEDURAL HISTORY
Because this appeal comes to us from the grant of a motion to dismiss the pleadings, we accept as true the version of the facts set forth in the complaint. While incarcerated as a pre-trial inmate at the Washoe County Jail, Appellant Joseph Dauksavage was admitted to Saint Mary's Hospital where Respondent Dr. Frieda Hulka performed a laparoscopic splenectomy (surgical removal of his spleen) to treat Dauksavage's chronic idiopathic thrombocytopenia (low platelets). Following the surgery, Dauksavage was not informed of any problem with the procedure, and Dr. Hulka's post-surgical report contained no reference to any complications.
However, when Dauksavage was discharged from the hospital, he alleges that he had a lump on the left side of his torso just below his rib cage. During a follow-up visit, Dr. Hulka allegedly told Dauksavage not to worry about the lump as it would eventually go away. Dauksavage subsequently became an inmate at the Northern Nevada Correctional Center in Carson City, Nevada.
Over the ensuing months, Dauksavage experienced intermittent episodes of abdominal pain. A little over a year after the surgery, Dauksavage experienced severe pain that did not subside, and the prison's medical department transferred Dauksavage to Carson Tahoe Hospital, where he was diagnosed with a "[l]eft diaphragmatic hernia with incarcerated strangulated small bowel," which in most plain terms means his diaphragm was punctured and a portion of his small intestine became trapped in the opening. Dauksavage's physician (Dr. Knoll) opined that, although the "etiology is unclear," Dauksavage's condition "appears to be related to his previous splenectomy." Dauksavage underwent emergency surgery to repair the hernia and the small bowel.
Dauksavage filed a complaint asserting claims for medical malpractice and professional negligence against Dr. Hulka. Attached as exhibits to the complaint were: 1) a document from an unknown source published by Matthew Bender & Company, Inc. defining res ipsa loquitur; 2) an "OP Report" regarding Dauksavage's laparoscopic splenectomy; 3) a "Progress Note" regarding Dauksavage's post-operative visit with Dr. Hulka; and 4) medical record excerpts from Carson Tahoe Regional Healthcare regarding Dauksavage's subsequent treatment.
Dauksavage also asserted claims against St. Mary's Hospital, but later voluntarily dismissed those claims.
Dr. Hulka responded by filing a motion asking the district court to dismiss Dauksavage's complaint pursuant to NRS 41A.071 based on Dauksavage's failure to provide an expert affidavit (sometimes called an "affidavit of merit") in support of his claims. In opposition, Dauksavage argued no affidavit was required because his claims sound in res ipsa loquitur as codified at NRS 41A.100(1)(d).
The district court granted Dr. Hulka's motion and dismissed the complaint by way of written order concluding that an expert affidavit was required because Dauksavage's claims were not based in re ipsa loquitur pursuant to NRS 41A.100. The district court's order of dismissal relied upon the exhibits accompanying Dauksavage's complaint and concluded, in part, as follows:
Plaintiff's alleged injuries, i.e.[,] a cut abdominal wall during a laparoscopic splenectomy surgery involve the very party [sic.] of the body on which the splenectomy was performed. Specifically, the alleged abdominal pain is clearly related to the abdominal surgery. Secondly, the alleged subsequent surgery [to repair the injuries suffered during the initial surgery] is directly related to the complication of the initial abdominal surgery complained of. In fact, Dr. Knoll provides that the complication 'appears to be related to the previous splenectomy,' and thus the area of alleged injury is the same area as the initial surgery performed.Dauksavage appeals this dismissal.
ANALYSIS
This court reviews a district court order granting a motion to dismiss de novo. See Zohar v. Zbiegien, 130 Nev. ___, ___, 334 P.3d 402, 404 (2014). This court also reviews questions of statutory construction de novo. Id. at ___, 334 P.3d at 405; see also Fierle v. Perez, 125 Nev. 728, 734, 219 P.3d 906, 910 (2009), overruled in part on other grounds by Egan v. Chambers, 129 Nev. ___, 299 P.3d 364 (2013).
NRS 41A.071 requires dismissal of any medical malpractice claim that is unaccompanied by an affidavit of merit supporting the allegations contained in the complaint and signed by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice. See Fierle, 125 Nev. at 736, 219 P.2d at 911. The statute operates to "deter frivolous litigation and identify meritless malpractice lawsuits at an early stage" by requiring that medical malpractice lawsuits may only be filed "in good faith based upon competent expert opinion." Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005) (internal quotations omitted). To help accomplish this goal, NRS 41A.071 places an obligation on the plaintiff to have available medical records reviewed by an expert "before a case [is] filed." Washoe Medical Center v. District Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006). When there is a "complete failure to attach an affidavit to the complaint," the complaint must be dismissed. Id. at 1304-05, 148 P.3d at 794 (internal quotations omitted). A medical malpractice complaint filed without a supporting expert affidavit is deemed void ab initio and to never have existed. Fierle, 125 Nev. at 740-41, 219 P.3d at 914.
In this case, the parties agree that Dauksavage's complaint was filed without a supporting affidavit of merit. Dauksavage contends, however, that no such affidavit was necessary because his claim lies in res ipsa loquitur under NRS 41A.100, and the affidavit of merit requirement does not apply to such claims. Under NRS 41A.100, a claim is based in res ipsa loquitur if (among other alternative possibilities not implicated by this case) the "injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto," NRS 41A.100(1)(d). This statutory language represents a departure from the common-law doctrine, under which a claim lay in res ipsa loquitur if the event in question is one that ordinarily does not occur in the absence of negligence. Restatement (Second) of Torts § 328D cmt. c (1965). As explained in Johnson v. Egtedar,
[i]n a medical malpractice case, under the traditional doctrine, whether the event in question is one that ordinarily does not occur in the absence of negligence may be within the common knowledge of a lay person. If not, the testimony of an expert witness is required.112 Nev. 428, 433-434, 915 P.2d 271, 274 (1996) (citations omitted).
Under NRS 41A.100 however, the presumption automatically applies where any of the enumerated factual circumstances are present. In regard to these factual predicates, the legislature has, in effect, already determined that they ordinarily do not occur in the absence of negligence.
"[B]ecause NRS 41A.071 governs the threshold requirements for initial pleadings in medical malpractice cases, not the ultimate trial of such matters, we must liberally construe this procedural rule of pleading in a manner that is consistent with our NRCP 12 jurisprudence." Borger v. Eighth Judicial Dist. Court, 120 Nev. 1021, 1028, 102 P.3d 600, 605 (2004) (citing Capital Mortg. Holding v. Hahn, 101 Nev. 314, 315, 705 P.2d 126, 126 (1985), for the proposition that, "[o]n a motion to dismiss for failure to state a claim for relief, the trial court and this court must construe the pleadings liberally and draw every fair intendment in favor of the plaintiff."); see also Zohar, 130 Nev. at ___, 334 P.3d at 406 ("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.'" (alterations in original) (quoting Borger, 120 Nev. at 1028, 102 P.3d at 605)). Thus, when considering a motion to dismiss pursuant to NRS 41A.071, the court must accept the facts alleged in the complaint as true and draw every fair intendment in favor of the plaintiff. See, e.g., Breliant v. Preferred Equities Corp., 109 Nev. 842, 845, 858 P.2d 1258, 1260 (1993).
Consequently, if Dauksavage's complaint alleges a prima facie res ipsa loquitur claim under any of the circumstances set forth in NRS 41A.100(1)(a)-(e), a motion seeking dismissal of that claim should not have been granted. See Fierle, 125 Nev. 728, 219 P.3d 906 (holding, in relevant part, that the district court erred by dismissing a claim for failure to comply with NRS 41A.071 where the allegations supported a res ipsa loquitur claim arising under NRS 41A.100(1)(c)). Dauksavage contends that the district court erred in dismissing his complaint because, when his allegations are accepted as true and viewed liberally as required by NRCP 12, the complaint pleaded a valid res ipsa loquitur claim and therefore no affidavit of merit was required. We disagree.
In Szydel v. Markman, 121 Nev. 453, 460, 117 P.3d 200, 205 (2005) the Nevada Supreme Court appears to have suggested that, when evaluating whether a pleading sets forth a valid res ipsa claim, the court may consider materials outside of the pleadings. Id. (when faced with a motion challenging the absence of an affidavit of merit, "the plaintiff must present facts and evidence" showing that one of the statutory exception is met). This suggests that, contrary to Borger, such motions may not be entirely governed by the same standards that apply to NRCP 12(b)(5) motions (under which only the four corners of the pleadings themselves may be considered). But in this case, we need not resolve that legal dilemma because Dauksavage failed to present any materials supporting his contentions and therefore all we have are the pleadings and attachments thereto.
Dauksavage concedes that the district court correctly concluded that his claimed injury is in the same area as the initial surgery performed by Dr. Hulka. Nevertheless, Dauksavage maintains that his claim qualifies as lying in res ipsa loquitur under NRS 41A.100(1)(d) because the injured area was "not directly involved" in the initial surgery. In other words, Dauksavage appears to contend that, even though the affected structures are admittedly "proximate to" the spleen, they were not "directly involved" in the splenectomy and therefore should be considered to fall within NRS 41A.100(1)(d).
Legally, Dauksavage interprets NRS 41A.100(1)(d) to mean that a res ipsa loquitur claim lies whenever a plaintiff suffers an injury to a part of the body that is either not directly involved in the treatment or not proximate to the treatment. We do not agree with this interpretation of the statute. Dauksavage effectively proposes that NRS 41A.100(1)(d) creates two alternate circumstances under which a res ipsa loquitur claim may arise. But this is not a plausible construction of the statute. In interpreting the meaning of a statute, the court begins with the plain language of the relevant statutes, Hernandez v. Bennett-Haron, 128 Nev. ___, ___, 287 P.3d 305, 315-16 (2012), and will not look beyond the express language unless it is clear that the plain meaning was not intended. City of Reno v. Bldg. & Constr. Trades Council of N. Nev., 127 Nev. 114, ___, 251 P.3d 718, 722 (2011); see also Berkson v. LePome, 126 Nev. 492, ___, 245 P.3d 560, 563 (2010) (holding that words in a statute will be given their plain meaning), "[W]hen 'the language of a statute is plain and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.'" Estate of Smith v. Mahoney's Silver Nugget, 127 Nev. 855, 857-58, 265 P.3d 688, 690 (2011) (quoting Attorney General v. Nevada Tax Comm'n, 124 Nev. 232, 240, 181 P.3d 675, 680 (2008)).
Here, the plain language-of the statute is unambiguous. NRS 41A.100(1)(d) clearly uses the word "or" conjunctively and a res ipsa loquitur claim arises under NRS 41A.100(1)(d) where the plaintiff has suffered an injury to a part of the body that is neither directly involved in the treatment nor proximate thereto. If the injured body part was either directly involved in the treatment or proximate to the site of the treatment, then the injury does not fall within the scope of NRS 41A.100(1)(d). Because Dauksavage concedes that his injury occurred to a part of the body proximate to the surgical site, his claim does not fall within NRS 41A.100(1)(d) regardless of whether or not his diaphragm and small bowel were "directly involved" in the splenectomy.
Dauksavage's claims of professional negligence also required the support of an expert affidavit because those claims depend upon proof of the alleged medical malpractice. See Pack v. LaTourette, 128 Nev. ___, ___, 277 P.3d 1246, 1250 (2012) (holding that a contribution claim for exacerbation of injuries by alleged medical malpractice was subject to NRS 41A.071's expert affidavit requirement). --------
Even if some ambiguity existed within the statute's language, the relevant legislative history confirms our interpretation. Normally, when confronted with a statutory ambiguity, we look to the legislative history of the enactment in order to divine the Legislature's intent. See Freeman v. Davidson, 105 Nev. 13, 16, 768 P.2d 885, 887 (1989) ("The legislature's intent should be given full effect."). But here, there is virtually no useful legislative history pertaining to NRS 41A.100(1)(d). See Hearing on S.B. 405 Before the Senate Judiciary Committee, 58th Leg. (Nev., April 2, 1975). Furthermore, NRS 41A.100(1)(d) appears unique among the 50 states; no other state in the country has a similar statute that we could potentially look to for guidance. Nevada's history of tort reform concerning medical malpractice actions, however, is instructive.
NRS 41A.100 was enacted in 1975 as part of a package of bills intended to reduce the cost of medical malpractice insurance by reducing the incidence of frivolous medical malpractice actions. See Hearing on S.B. 405 Before the Senate Judiciary Committee, 58th Leg., at 2 (Nev., April 2, 1975). Also toward that end, Nevada later introduced medical malpractice screening panels, the purposes of which were "to minimize frivolous suits against doctors, to encourage settlement, and to lower the costs of malpractice premiums and health care." Jain v. McFarland, 109 Nev. 465, 471, 851 P.2d 450, 455 (1993). Then, during a special legislative session called in 2002 to address a perceived medical malpractice insurance crisis, the Legislature eliminated the screening panels and adopted the current statutory scheme, which includes the affidavit of merit requirement that gave rise to this appeal. See Zohar, 130 Nev. at ___, 334 P.3d at 405; Washoe Medical Center, 122 Nev. at 1304, 148 P.3d at 794. As with the Legislature's earlier efforts, the purpose of the affidavit requirement is "to lower costs, reduce frivolous lawsuits, and ensure that medical malpractice actions are filed in good faith based upon competent expert medical opinion." Szydel, 121 Nev. at 459, 117 P.3d at 204.
In view of this overarching legislative purpose, it seems unreasonable to conclude that the Legislature intended to expand the definition of res ipsa claims by broadly establishing two different and alternative kinds of such claims within NRS 41A.100(d), as Dauksavage contends. See Breen v. Caesars Palace, 102 Nev. 79, 82, 715 P.2d 1070, 1072 (1986) (a statute should not be construed to "produce an unreasonable result when another interpretation will produce a reasonable result"); Canarelli v. Dist. Ct., 127 Nev. 808, 814, 265 P.3d 673, 677 (2011) (this court construes "statutes to preserve harmony among them").
CONCLUSION
For the foregoing reasons, we conclude that the district court did not err in the dismissal of Dauksavage's complaint based upon the absence of an accompanying affidavit of merit. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Jerome M. Polaha, District Judge
Joseph K. Dauksavage
Lemons, Grundy & Eisenberg
Washoe District Court Clerk