Opinion
84607-COA
06-28-2023
SOMSAK LIMPRASERT, AN INDIVIDUAL, Appellant, v. PAM SPECIALTY HOSPITAL OF LAS VEGAS, LLC, A FOREIGN LIMITED LIABILITY COMPANY, D/B/A PAM SPECIALTY HOSPITAL OF LAS VEGAS, Respondent.
UNPUBLISHED OPINION
ORDER OF REVERSAL AND REMAND
GIBBONS, C.J.
Somsak Limprasert appeals from a district court order dismissing a tort action pursuant to NRCP 12(b)(5). Eighth Judicial District Court, Clark County; Susan Johnson, Judge.
On August 3, 2021, Limprasert sued respondent Pam Specialty Hospital of Las Vegas, LLC (PAM), for ordinary negligence and abuse of a vulnerable person. In his complaint, Limprasert generally alleged that he became bedridden while at PAM's facility, and that PAM knew he was unable to stand without being supported by the staff. He also alleged that on August 3, 2020, two PAM nurses assisted him out of bed and, while he was standing, "unexpectedly let[ ] go of him." Limprasert alleged that because the staff did not follow physician's orders, he fell to the ground and sustained injuries. Although the complaint referenced a declaration of merit by Dr. Stewart Curtis, D.O., to support Limprasert's claims and allegations, the declaration was not attached to Limprasert's filed complaint.
Respondent designates itself as "Pam" but we refer to it as "PAM" to identify it as a corporate entity and avoid confusion with that of an individual.
We do not recount the facts except as necessary to our disposition.
PAM filed a motion to dismiss Limprasert's complaint and argued that his exclusive remedy was to bring an action under NRS Chapter 41A for professional negligence. PAM argued that Limprasert failed to raise a separate claim for abuse of a vulnerable person because the claim was derivative of the negligence cause of action and sounded in professional negligence. Additionally, PAM argued that Limprasert's failure to attach a medical expert affidavit to his complaint rendered it void ab initio and, therefore, the district court was required to dismiss his complaint for failure to comply with NRS 41A.071.
Limprasert filed an errata to his complaint, which included the expert declaration of Dr. Curtis. Limprasert filed the errata attaching Dr. Curtis's declaration to the complaint after PAM filed its motion to dismiss, and more than a month after the applicable statute of limitations for a professional negligence claim had expired. Limprasert's counsel's affidavit attached to his opposition to the motion to dismiss stated that Dr. Curtis reviewed the facts of the case and authored his supporting declaration on August 3, 2021-the day the complaint was filed-and that the declaration was inadvertently omitted as an attachment to the filed complaint. Therefore, the errata attaching the declaration was filed as soon as the omission became known.
In his opposition to PAM's motion to dismiss, Limprasert also argued that his injuries were caused by ordinary negligence and that his claims for professional negligence were pleaded in the alternative. Limprasert asserted that his allegations of negligence did not involve medical judgment, treatment, or diagnosis and would not require expert medical testimony. Limprasert maintained that a layperson could use their common knowledge and experience to determine that an individual must be continually supported when they require assistance to stand and are raised to a standing position. Furthermore, Limprasert relied on Baxter v. Dignity Health, 131 Nev. 759, 357 P.3d 927 (2015), to argue that he satisfied the medical expert affidavit requirement pursuant to NRS 41A.071 because he obtained his expert's affidavit prior to the filing of the complaint and the affidavit was incorporated by reference in his complaint. Limprasert argued that therefore, his alternative claims of professional negligence should not be dismissed.
The district court found that Limprasert's claims sounded in professional negligence and because he failed to attach a supporting medical expert affidavit or declaration to his complaint as required by NRS 41A.071, his complaint should be dismissed. Further, the district court found that Limprasert's errata to his complaint, which included Dr. Curtis's medical expert declaration, was not attached to the complaint and therefore would not be considered by the court as being concurrently filed with the complaint. Accordingly, the district court granted PAM's motion to dismiss Limprasert's complaint. This appeal followed.
We note that under Nevada law, an unsworn declaration may be submitted in lieu of an affidavit. See NRS 53.045 ("Any matter whose existence or truth may be established by an affidavit or other sworn declaration may be established with the same effect by an unsworn declaration . . . ."). We use the terminology interchangeable at times but recognize that Dr. Curtis's medical expert support was in the form of an unsworn declaration.
On appeal, Limprasert contends the district court erred in dismissing his complaint because his claims sounded in ordinary negligence and not professional negligence. He claims he only argued professional negligence as an alternative theory of liability. Thus, Limprasert argues that he was not required to attach a medical expert affidavit in support of his claims pursuant to NRS 41A.071 in order to state a claim for relief. Additionally, Limprasert argues that even if his claims sounded in professional negligence, the authority in Baxter supports that he complied with the requirements of NRS 41A.071.
Conversely, PAM argues that all of Limprasert's claims sounded in professional negligence and not ordinary negligence, and thus, required a medical expert affidavit or declaration to be filed with his complaint under NRS 41 A.071. As a result, PAM argues that the district court did not err in dismissing Limprasert's complaint because he failed to comply with NRS 41A.071. PAM avers that Baxter is distinguishable because Limprasert filed the errata to his complaint containing Dr. Curtis's declaration after the statute of limitations expired and, therefore, PAM did not have the opportunity to challenge the authenticity of the untimely filed medical expert affidavit. Standard of review
This court reviews a district court order dismissing a complaint under NRCP 12(b)(5) de novo. Porchia v. City of Las Vegas, 138 Nev., Adv. Op. 4, 504 P.3d 515, 518 (2022). Similarly, this court reviews a district court's decision to dismiss a complaint for failing to comply with NRS 41A.071 de novo. Yafchak v. S. Las Vegas Med. Itiv'rs, LLC, 138 Nev., Adv. Op. 70, 519 P.3d 37, 40 (2022). This court will only affirm the order "if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him or her] to relief." Buzz Stew, LLC u. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008). "Namely, when a defendant moves to dismiss a plaintiffs complaint for failing to comply with NRS 41.071, the burden is on the defendant to demonstrate the plaintiffs allegations arise under NRS Chapter 41A." Yafchak, 138 Nev., Adv. Op. 70, 519 P.3d at 40. When reviewing a motion to dismiss, "this court will recognize all factual allegations in [the plaintiffs] complaint as true and draw all inferences in [his or her] favor." Buzz Stew, 124 Nev. at 228, 181 P.3d at 672.
The district court erred in dismissing Lirnprasert's complaint pursuant to NRCP 12(b)(5)
"The distinction between professional and ordinary negligence can be subtle, and [a court must] look to the 'gravamen or substantial point or essence' of each claim to make the necessary determination." Estate of Curtis v. S. Las Vegas Med. Inv'rs, LLC, 136 Nev. 350, 354, 466 P.3d 1263, 1267 (2020) (quoting Szymborski v. Spring Mountain Treatment Ctr., 133 Nev. 638, 642-43, 403 P.3d 1280, 1285 (2017) (internal quotation marks omitted)). "Allegations of breach of duty involving medical judgment, diagnosis, or treatment indicate that a claim is for [professional negligence]." Szymborski, 133 Nev. at 642, 403 P.3d at 1284. "[I]f the jury can only evaluate the plaintiffs claims after presentation of the standards of care by a medical expert, then it is a [professional negligence] claim." Id. "If, on the other hand, the reasonableness of the health care provider's actions can be evaluated by jurors on the basis of their common knowledge and experience, then the claim is likely based in ordinary negligence." Id. at 642, 403 P.3d at 1285. This is referred to as a common knowledge exception to the medical affidavit requirement.
To apply the common knowledge exception,
[a] court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or [professional negligence]: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. If both these questions are answered in the affirmative, the action is subject to
the procedural and substantive requirements that govern [professional negligence] actions.Curtis, 136 Nev. at 356, 466 P.3d at 1268 (second and third alterations in original) (quoting Bryant v. Oakpointe Villa Nursing Ctr., Inc., 684 N.W.2d 864, 871 (Mich. 2004)). However, the common knowledge exception "is extremely narrow and only applies in rare situations." Id.
In this case, Limprasert filed a complaint against PAM that alleged ordinary negligence and, alternatively, professional negligence. Limprasert's complaint made various allegations, including PAM's failure to follow the physician's orders with respect to fall precautions, which resulted in him sustaining severe injuries. Because this court assumes that Limprasert's factual allegations are true and draws all inferences in his favor, it appears that PAM employees were to follow fall precautions that had already been implemented based on a medical decision. See Buzz Stew, 124 Nev. at 228, 181 P.3d at 672. Since a medical decision had allegedly already been made regarding fall precautions, a layperson could use their common knowledge and experience to evaluate PAM's ordinary negligence in unexpectedly letting go of a patient without the presentation of medical expert testimony. See Szymborski, 133 Nev. at 642, 403 P.3d at 1284-85. Thus, because there are some facts that could entitle Limprasert to relief under ordinary negligence-such as the staff let him go-we reverse the district court's order and remand for further proceedings. See Ryan's Express Transp. Servs., Inc. v. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) ("An appellate court is not particularly well-suited to make factual determinations in the first instance."); Buzz Stew, 124 Nev. at 228, 181 P.3d at 672. The district court erred in dismissing Limprasert's professional negligence claims
NRS 41 A.071 requires dismissal of a professional negligence claim not accompanied by a medical expert affidavit supporting the allegations therein. The purpose of NRS 41A.071 "is to lower costs, reduce frivolous lawsuits, and ensure that medical malpractice actions are filed in good faith based upon competent expert medical opinion." Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006) (internal quotation marks omitted).
"[A] medical malpractice complaint filed without a supporting medical expert affidavit [required by NRS 41A.071] is voidab initio, meaning it is of no force and effect." Id. "[A]nd an NRS 41A.071 defect cannot be cured through amendment," because the complaint does not legally exist. Id. at 1300-01, 1304, 148 P.3d at 792, 794. However, in very limited circumstances, a complaint that is not concurrently filed with a medical expert affidavit will survive a motion to dismiss, and in such limited circumstances, the district court should read the complaint as incorporating the unattached affidavit. Baxter, 131 Nev. at 765, 357 P.3d at 931. In particular,
where the complaint incorporates by reference a preexisting affidavit of merit, which is thereafter filed and served with the complaint, and no party contests the authenticity of the affidavit or its date, the affidavit of merit may properly be treated as part of the pleadings in evaluating a motion to dismiss.Id.
In Baxter, before filing his medical malpractice complaint, the plaintiff consulted with a medical expert that prepared the supporting declaration. Id. at 761, 357 P.3d at 928. The complaint referenced the doctor's declaration and asserted that the declaration was being filed at or about the time of the filing of the complaint. Id. Although the plaintiff did not attach the declaration to the complaint, he filed the declaration the next day, which was well before the expiration of the statute of limitations period. Id. However, the district court dismissed the plaintiffs complaint, by which time the statute of limitations had run on the plaintiffs claim. Id. at 761-62, 357 P.3d at 928-29.
The Nevada Supreme Court clarified that "NRS 41A.071 does not state that the affidavit of merit must be physically attached to the malpractice complaint-or even physically filed, for that matter." Id. at 764-65, 357 P.3d at 931. Because the plaintiffs complaint referenced the declaration, the affidavit was filed five judicial hours after the complaint, and the defendants were able to challenge the sufficiency of the affidavit in their motions to dismiss, the supreme court concluded that "[s]ubstanial justice is done by reading the complaint as incorporating the declaration in deciding dismissal." Id. at 765-66, 357 P.3d at 931; see also Tarlton v. Lauchman, No. 75597-COA, 2019 WL 989869 (Nev. Ct. App. Feb. 27, 2019) (Order of Reversal and Remand) (concluding that the plaintiff complied with the requirements in NRS 41A.071 when his medical expert affidavit preexisted the filing of his complaint, even though it was supplemented after the expiration of the statute of limitations).
In this case, Limprasert's failure to file the declaration with the complaint prior to the expiration of the statute of limitations does not in and of itself constitute a failure to timely comply with NRS 41 A.071. See Baxter, 131 Nev. at 765, 357 P.3d at 931. Here, Dr. Curtis's declaration of merit preexisted the filing of Limprasert's complaint and the complaint referenced the preexisting declaration. While PAM asserts that it did not have the opportunity to challenge the sufficiency of Dr. Curtis's declaration, we disagree. PAM was timely made aware of the existence of the declaration in the complaint, which was filed within the statute of limitations. Limprasert later attached the declaration to his complaint in the errata, albeit after the statute of limitations on his professional negligence claims had expired, but before PAM was required to file its reply brief and before the hearing on the motion to dismiss. Thus, PAM had the opportunity to challenge the sufficiency of the affidavit before the district court decided its motion.
Finally, Limprasert did not initiate his professional negligence action without consulting a medical expert and obtaining an opinion, consistent with NRS 41A.071's purpose "to ensure that plaintiffs file non-frivolous medical malpractice actions in good faith based upon competent expert medical opinion." Id. at 766, 357 P.3d at 931 (internal quotation marks omitted). Accordingly, the district court should have treated the declaration as part of the complaint when evaluating the motion to dismiss, even though it was not physically filed with the complaint. See id. Therefore, the district court erred in granting PAM's motion to dismiss Limprasert's professional negligence claims for the failure to comply with NRS 41A.071.
Based on the foregoing, we
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
Insofar as the parties have raised arguments that are not specifically I addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal. The Honorable Bonnie Bulla, Judge, did not participate in the decision of this matter.
Westbrook, J.
Hon. Susan Johnson, District Judge
Persi J. Mishel, Settlement Judge