Alemi, M.D. v. Dist. Ct. (Shaw, M.D.) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
GOLNAZ ALEMI, M.D.; AND CARMEN No. 66917
LAFIA, M.D.,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILED
IN AND FOR THE COUNTY OF
JAN 0 7 2016
CLARK; AND THE HONORABLE
TR CIE K LNDFEIAN
NANCY L. ALLF, DISTRICT JUDGE, CLERK r SUPREME COURT
Respondents, EY
DEPUTY
and
TERESA RAMIREZ,
Real Party in Interest.
ORDER GRANTING PETITION FOR WRIT OF MANDAMUS
This is an original petition for a writ of mandamus challenging
a district court order granting a motion to amend the complaint and
affidavit in a medical malpractice action.
BACKGROUND
Real party in interest Teresa Ramirez filed a complaint for
medical malpractice on July 15, 2014, naming Lawrence Shaw, M.D.;
Golnaz Alemi, M.D.; Carmen Lafia, M.D.; and University Medical Center
of Southern Nevada' as defendants. Ramirez alleged that the defendants
negligently performed her cesarean section, causing ureteral damage. She
attached to the complaint an affidavit from a medical doctor that did not
IRamirez later stipulated to dismiss University Medical Center from
the action.
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separately name student doctors Alemi and Lafia as parties responsible
for the alleged conduct.
Thereafter, Drs. Alemi and Lafia filed a motion to dismiss the
complaint for failure to comply with NRS 41A.071 (2002). 2 The doctors
argued that the expert affidavit accused only Dr. Shaw of conduct that fell
below the standard of care. Thus, according to Drs. Alemi and Lafia, the
original complaint was void ab initio as to them, and the district court was
precluded from granting Ramirez leave to amend.
In response, Ramirez filed an opposition and counter-motion
to amend the complaint and affidavit. Ramirez claimed that because Drs.
Alemi and Lafia were resident physicians training under Dr. Shaw, their
duties were inseparable from Dr. Shaw's and they were implicated in Dr.
Shaw's actions. In the alternative, Ramirez requested leave to amend in
the interest of justice.
The district court read the complaint together with the
affidavit and found that they were insufficient to state a medical
malpractice claim under NRS 41A.071 (2002). The district court therefore
granted Drs. Alemi and Lafia's motion to dismiss, but also granted
Ramirez's counter-motion to amend the complaint and affidavit. Drs.
Alemi and Lafia filed the instant petition for a writ of mandamus.
DISCUSSION
"A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an 'office, trust or
station' or to control an arbitrary or capricious exercise of discretion."
2 NRS Chapter 41A was amended in 2015 to specify the content
required in an expert affidavit. 2015 Nev. Stat., ch. 439, § 6, at 2527.
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Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 868-69, 124 P.3d 550,
552 (2005) (quoting NRS 34.160). "[W]e will exercise our discretion to
consider such a petition only when there is no plain, speedy and adequate
remedy in the ordinary course of law or there are either• urgent
circumstances or important legal issues that need clarification in order to
promote judicial economy and administration." Id. at 869, 124 P.3d at 552(footnotes omitted) (internal quotations omitted). Generally, we "will not
entertain a writ petition challenging the denial of a motion to dismiss."
Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d
920, 921 (2010). However, if "the issue is not fact-bound and involves an
unsettled and potentially significant, recurring question of law," we may
consider the petition. Id. We consider the instant writ petition because
the relevant facts are not in dispute and a recurring question is presented:
whether a district court may, pursuant to NRS 41A.071 (2002), grant
leave to amend a medical malpractice complaint and affidavit when the
affidavit is present, but deficient.
"The construction of a statute is a question of law subject to
review de novo." Beazer Homes Nev., Inc. v. Eighth Judicial Dist. Court,
120 Nev. 575, 579, 97 P.3d 1132, 1135 (2004) (internal quotation omitted).
NRS 41A.071 (2002) provides:
If an action for medical malpractice or dental
malpractice is filed in the district court, the
district court shall dismiss the action, without
prejudice, if the action is filed without an affidavit,
supporting the allegations contained in the action,
submitted 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.
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In Washoe Medical Center v. Second Judicial District Court, we held that
"a complaint that does not comply with NRS 41A.071 is void ab initio, it
does not legally exist and thus it cannot be amended." 3 122 Nev. 1298,
1304, 148 P.3d 790,794 (2006). We explained that "in requiring dismissal
of an action filed without a supporting affidavit, NRS 41A.071 trumps
NRCP 15(a), which allows liberal amendment of pleadings, given the
substantive policy expressed in NRS 41A.071 against a plaintiff bringing a
malpractice action without a medical expert first reviewing and validating
the claims." Baxter v. Dignity Health, 131 Nev., Adv. Op. 76, 357 P.3d
927, 930 (2015) (discussing Washoe Medical Center).
Here, we agree with the district court that, even when reading
Ramirez's complaint together with the affidavit under Zohar v. Zbiegien,
130 Nev., Adv. Op. 74, 334 P.3d 402, 408 (2014), they failed to comply with
NRS 41A.071 (2002). In particular, the complaint and affidavit failed to
allege conduct of Drs. Alemi and Lafia that caused Ramirez's injuries.
They also did not set forth the applicable standard of care allegedly
breached by the student doctors. See NRS 41A.009 (2013) (defining
medical malpractice as "the failure of a physician . . . in rendering
services, to use the reasonable care, skill or knowledge ordinarily used
under similar circumstances"). Due to the failure of the complaint and
3 We note that although dictum of Borger v. Eighth Judicial District
Court, 120 Nev. 1021, 1029-30, 102 P.3d 600, 606 (2004) anticipates
allowing amendments, our more recent decision in Washoe Medical Center,
122 Nev. at 1304, 148 P.3d at 794, is controlling. See Vegas Franchises,
Ltd. v. Culinary Workers Union, Local No. 226, 83 Nev. 422, 424, 433 P.2d
263, 265 (1967) ("Seldom is stare decisis appropriately applied to
dictum.").
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affidavit to allege a standard of care and conduct attributable to Drs.
Alemi and Lafia, NRS 41A.071's policy of ensuring that a medical expert
has first validated the claim is not demonstrated. For these reasons, the
complaint and affidavit were noncompliant. Thus, they were void ab initio
and the district court was required to dismiss without leave to amend.
Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to dismiss the complaint as to Drs. Alemi and Lafia.
CLIA , C.J.
Parraguirre
_LLseteS,
Hardesty
J.
J.
Saitta
Atfeuds J.
Pickering
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CHERRY, J., with whom, GIBBONS, J., agrees, dissenting:
In this matter, it is our belief that the majority failed to
properly consider Zohar's directive to read the complaint with the
affidavit. It is our belief that since the complaint clearly provides the
names of Drs. Alemi and Lafia, the affidavit, although not sufficiently
identifying their actions, was sufficient.
Gibbons
cc: Hon. Nancy L Allf, District Judge
Carroll, Kelly, Trotter, Franzen, & McKenna & Peabody
Brooks Hubley LLP
Eighth District Court Clerk
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