Tam v. Eighth Jud. Dist. Ct. , 2015 NV 80 ( 2015 )

131 Nev., Advance Opinion 61)
IN THE SUPREME COURT OF THE STATE OF NEVADA
STEPHEN TAM, M.D., No. 66346
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILED
IN AND FOR THE COUNTY OF OCT 01 2015
CLARK; AND THE HONORABLE
JERRY A. WIESE, DISTRICT JUDGE, DEMAN
"ciLM.
Respondents, die
CLERK
and
SHERRY CORNELL, INDIVIDUALLY
AND AS SPECIAL ADMINISTRATOR
OF THE ESTATE OF CHARLES
THOMAS CORNELL, JR.; KARLA
CRAWFORD, AS SPECIAL
ADMINISTRATOR OF THE ESTATE
OF CHARLES THOMAS CORNELL,
JR.; PATRICK N. CHAPIN, AS
SPECIAL ADMINISTRATOR OF THE
ESTATE OF CHARLES THOMAS
CORNELL, JR.; AND ALFREDO
HIBBART, PA,
Real Parties in Interest.
Original petition for writ of mandamus challenging a district
court order ruling a statute unconstitutional in a medical malpractice
action.
Petition granted.
Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E.
Jordan, Las Vegas,
for Petitioner.
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Law Office of Bradley L. Booke and Bradley L. Booke, Las Vegas; Shandor
S. Badaruddin, Missoula, Montana,
for Real Parties in Interest Sherry Cornell, Karla Crawford, and Patrick
N. Chapin.
Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C.
McBride, Las Vegas,
for Real Party in Interest Alfredo Hibbart.
BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, C.J.:
NRS 41A.035 (2004) limits the recovery of a plaintiffs
noneconomic damages in a health-care provider's professional negligence
action to $350,000. In this petition, we resolve three issues related to this
statute: whether the statute violates a plaintiffs right to trial by jury,
whether the cap applies separately to each cause of action, and whether
the statute applies to medical malpractice actions. We conclude that the
district court erred in finding the statute unconstitutional on the basis
that it violates a plaintiffs constitutional right to trial by jury. We further
conclude that the district court erred when it found the statutory cap
applies per plaintiff and per defendant. And finally, we conclude that the
district court erred when it found the statute only applies to professional
negligence and not to medical malpractice. Accordingly, we grant the
petition.
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FACTS
After the death of Charles Thomas Cornell, Jr, real party in
interest Sherry Cornell,' individually and as administrator of Charles's
estate, filed a complaint alleging, among other causes of actions,
professional negligence and medical malpractice. The complaint named
numerous defendants, including petitioner Stephen Tam, M.D.
Charles had several chronic medical conditions. However,
Cornell alleged that Charles died after receiving care from the defendants,
who discharged him without medications or prescriptions for essential
medications, including insulin, to treat his diabetes. Consequently, the
complaint alleged that Charles died because he did not have access to
insulin.
The district court dismissed several of the defendants and
numerous claims from the action, and the remaining claims for trial fell
"within the definition of medical malpractice as set forth in NRS 41A.009."
Relevant to this opinion is that Dr Tam filed an omnibus motion in limine
requesting in part that the plaintiffs' noneconomic damages be limited to
$350,000 as a whole pursuant to NRS 41A.035 (2004).
The district court denied this motion finding that NRS
41A.035 was unconstitutional, as it violated a plaintiffs constitutional
right to trial by jury. The district court also found that the cap in NRS
41A.035 does not apply to the case as a whole but that a separate cap
'Although Charles Cornell, Jr., died in 2010, all references to the
plaintiffs/real parties in interest, whether suing on Charles Cornell's
behalf or in their individual capacity, are hereinafter referred to
collectively as "Cornell."
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applies to each plaintiff for each of the defendants. 2 In addition, the
district court found that the cap in NRS 41A.035 did not apply to medical
malpractice claims. 3 This petition for writ relief followed.
Writ relief is appropriate
Dr. Tam petitions this court for a writ of mandamus
compelling the district court to vacate its order denying his motion in
limine "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."
Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d
484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist.
Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)); NRS 34.160.
Generally, "[w]rit relief is not available. . . when an adequate and speedy
legal remedy exists." Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.
"While an appeal generally constitutes an adequate and speedy remedy
precluding writ relief, we have, nonetheless, exercised our discretion to
2 The Legislature has since amended NRS 41A.035 to clarify that the
recovery for noneconomic damages is limited to $350,000, "regardless of
the number of plaintiffs, defendants or theories upon which liability may
be based." See 2015 Nev. Stat., ch. 439, § 3, at 2526. All further
references to NRS 41A.035 in this opinion are based on the 2004 version of
the statute.
3 As part of his motion in limine, Dr Tam also requested that he be
allowed to introduce collateral source evidence pursuant to NRS 42.021.
The district court denied this request, deeming NRS 42.021
unconstitutional. Dr. Tam separately petitioned this court for a writ of
mandamus on this denial. Tam v. Eighth Judicial District Court
(Cornell), Docket No. 66065. We resolve Docket No. 66065 separately from
the petition now before the court.
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intervene 'under circumstances of urgency or strong necessity, or when an
important issue of law needs clarification and sound judicial economy and
administration favor the granting of the petition." Cote H. v. Eighth
Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (footnote
omitted) (quoting State v. Second Judicial Dist. Court, 118 Nev. 609, 614,
55 P.3d 420, 423 (2002)).
In this case, although an appeal from a final judgment
appears to be an adequate and speedy remedy for the individual parties,
resolving this writ petition could affect the course of the litigation and
thus promote sound judicial economy and administration. Moreover, this
petition raises an important legal issue in need of clarification involving
public policy, which could resolve or mitigate related or future litigation.
Accordingly, we exercise our discretion to entertain Dr. Tam's petition for
writ of mandamus.
The district court erred in finding NRS 41A.035 unconstitutional, as the
statute does not violate the right of trial by jury
NRS 41A.035 provides that "[fin an action for injury or death
against a provider of health care based upon professional negligence, the
injured plaintiff May recover noneconomic damages, but the amount of
noneconomic damages awarded in such an action must not exceed
$350,000." The district court concluded that the statute violates the right
of trial by jury because it takes a question of fact—the determination of
damages—away from the jury.
"[T]his court reviews de novo determinations of whether a
statute is constitutional." Hernandez v. Bennett-Haron, 128 Nev., Adv.
Op. 54, 287 P.3d 305, 310 (2012). "Statutes are presumed to be valid, and
the challenger bears the burden of showing that a statute is
unconstitutional. In order to meet that burden, the challenger must make
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a clear showing of invalidity." Silvar v. Eighth Judicial Dist. Court, 122
Nev. 289, 292, 129 P.3d 682, 684 (2006) (citation omitted).
In Nevada, "[t]he right of trial by Jury shall be secured to all
and remain inviolate forever." Nev. Const. art. 1, § 3. This provision
guarantees "the right to have factual issues determined by a jury."
Drummond v. Mid-West Growers Coop. Corp., 91 Nev. 698, 711, 542 P.2d
198, 207 (1975).
In order for a statute to violate the right to trial by jury, a
statute must make the right practically unavailable. Barrett v. Baird, 111
Nev. 1496, 1502, 908 P.2d 689, 694 (1995) ("[T]he correct standard for
evaluating whether a statute unconstitutionally restricts the right to a
jury trial is that the right must not be burdened by the imposition of
onerous conditions, restrictions or regulations which would make the right
practically unavailable." (internal quotations omitted)), overruled on other
grounds by Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970, 980 (2008).
While jurisdictions disagree on whether caps on statutory
damages violate the right to trial by jury, 4 we have previously held that a
statutory limit on damages does not infringe upon a plaintiff's
constitutional right. Arnesano v. State, Dep't of Transp., 113 Nev. 815,
819, 942 P.2d 139, 142 (1997), abrogated on other grounds by Martinez v.
4 Compare Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989)
("[O]nce the jury has made its findings of fact with respect to damages, it
has fulfilled its constitutional function; it may not also mandate
compensation as a matter of law."), with Lakin v. Senco Prods., Inc., 987
P.2d 463, 473 (Or. 1999) ("Although it is true that [the statutory cap] does
not prohibit a jury from assessing noneconomic damages, to the extent
that the jury's award exceeds the statutory cap, the statute prevents the
jury's award from having its full and intended effect.").
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Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). In Arnesano, the
plaintiffs contended that a $50,000 cap on damages under NRS 41.035
(limiting damages in a tort action against the government) violated their
right to a jury trial. Id. at 819-20, 942 P.2d at 142. After explaining that
it is the jury's role to determine the extent of a plaintiff's injury, this court
concluded that "it is not the role of the jury to determine the legal
consequences of its factual findings. ... That is a matter for the
[Li egislature." Id. at 820, 942 P.2d at 142 (quoting Boyd v. Bulala, 877
F.2d 1191, 1196 (4th Cir. 1989) (first alteration in original) (upholding a
statutory cap on medical malpractice liability)).
California has also addressed this exact issue in upholding the
constitutionality of its statutory cap on noneconomic damages in an action
involving a health-care provider's professional negligence. See Yates v.
Pollock, 239 Cal. Rptr. 383, 385 (Ct. App. 1987) (concluding that such an
argument is merely "an indirect attack upon the Legislature's power to
place a cap on damages"). The Yates court reasoned that while the statute
could possibly result in a lower judgment than the jury's award, "the
Legislature retains broad control over the measure. . . of damages that a
defendant is obligated to pay and a plaintiff is entitled to receive,
and ... [it] may expand or limit recoverable damages so long as its action
is rationally related to a legitimate state interest." Id. at 385-86 (internal
quotations omitted) (third alteration in original).
Consistent with our prior holding in Arensano and persuasive
caselaw from California, we conclude that NRS 41A.035's cap does not
interfere with the jury's factual findings because it takes effect only after
the jury has made its assessment of damages, and thus, it does not
implicate a plaintiffs right to a jury trial.
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NRS 41A.035 does not violate equal protection rights
Cornell also argues that the district court correctly found the
statute unconstitutional but for the wrong reasons. Cornell argues that
MRS 41A.035 violates the Equal Protection Clause and claims there is no
rational basis for the statute. The district court did not address the equal
protection argument in its order. Although this court would not normally
address an issue that the district court declined to consider and develop
the factual record, this court can consider constitutional issues for the first
time on appeal. See Jacobs v. Adelson, 130 Nev., Adv. Op. 44, 325 P.3d
1282, 1288 (2014); Barrett, 111 Nev. at 1500, 908 P.2d at 693 (holding that
this court may consider constitutional issues for the first time on appeal).
To survive an equal protection challenge, MRS 41A.035 need
only be rationally related to a legitimate governmental purpose.° See
generally Flamingo Paradise Gaming, LW v. Chanos, 125 Nev. 502, 520,
217 P.3d 546, 559 (2009). "[T]he right of malpractice plaintiffs to sue for
damages caused by medical professionals does not involve a fundamental
constitutional right." Barrett, 111 Nev. at 1507, 908 P.2d at 697.
The argument presented to voters in support of passing MRS
41A.035 was to "stabilize Nevada's health care crisis and provide
protection for both doctors and patients." Nevada Ballot Questions 2004,
Question No, 3, Argument in Support of Question No. 3 at 16, available
at https://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/
'While the legislative history is helpful to understanding the
purpose of enacting the statute, this court is not limited to the reasons
expressed by the Legislature; rather, if any rational basis exists, or can be
hypothesized, then the statute is constitutional. See Flamingo Paradise
Gaming, LLC v. Chanos, 125 Nev. 502, 520, 217 P.3d 546, 559 (2009).
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2004.pdf 2004 (last visited July 10, 2015). Based on this express goal,
NRS 41A.035's aggregate cap on noneconomic damages is• rationally
related to the legitimate governmental interest of ensuring that adequate
and affordable health care is available to Nevada's citizens. By providing
a hard cap limiting potential noneconomic damages arising from an
incident of malpractice, the statute would seem to provide greater
predictability and reduce costs for health-care insurers and, consequently,
providers and patients.
Similarly, the California Supreme Court determined that
California's statutory cap on noneconomic damages does not violate equal
protection. See Fein v. Permanente Med. Grp., 695 P.2d 665, 680 (Cal.
1985). Specifically, the Fein court explained that an aggregate cap on
medical malpractice damages was rationally related to the legitimate
governmental purpose of combating "the rising cost of medical malpractice
insurance [that] was posing serious problems for the health care system in
California." Id.; see also Hoffman v. United States, 767 F.2d 1431, 1437
(9th Cir. 1985) (same).
Thus, we conclude that NRS 41A.035 does not violate equal
protection because the imposition of an aggregate cap on noneconomic
damages in medical malpractice actions is rationally related to the
legitimate governmental interests of ensuring that adequate and
affordable health care is available to Nevada's citizens.
The district court erred when it found the cap in NRS 41A.035 applies per
plaintiff, per defendant
Cornell argues that the district court properly found that the
plain language and legislative history of NRS 41A.035 support the
argument that its cap applies separately to each plaintiff for each
defendant, as each plaintiff has an independent action. Cornell compares
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this statute with the wrongful death statute where heirs' actions may be
joined, and each action is separate and distinct. 6 We disagree.
NRS 41A.035 provides that "[in an action for injury or death
against a provider of health care based upon professional negligence, the
injured plaintiff may recover noneconomic damages, but the amount of
noneconomic damages awarded in such an action must not exceed
$350,000." Cornell argues that the term "action" refers to each separate
claim and applies separately to each defendant. Conversely, Dr. Tam
argues that the plain meaning of "action" refers to the case as a whole.
Because both interpretations are reasonable, the statute is ambiguous,
and we look to the legislative history to aid in interpreting the statute.
We review de novo questions of statutory construction. Beazer
Homes Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 579, 97 P.3d
1132, 1135 (2004). We do not look beyond the language of a statute if it is
clear on its face. Id. at 579-80, 97 P.3d at 1135. "However, when a statute
is susceptible to more than one natural or honest interpretation, it is
ambiguous, and the plain meaning rule has no application." Id. (internal
citations omitted). "In construing an ambiguous statute, we must give the
6 Incorrectly, Cornell also cites to County of Clark ex rel. University
Medical Center v. Upchurch, 114 Nev. 749, 961 P.2d 754 (1998), as
evidence that NRS 41A.035 applies per plaintiff, per defendant, and per
cause of action. In Upchurch, we determined that a $50,000 governmental
immunity waiver and damage cap pursuant to NRS 41.035(1) was
ambiguous as to whether the cap was per political subdivision or
aggregate "regardless of the number of defendant political subdivisions."
114 Nev. at 754, 961 P.2d at 758. However, after examining legislative
history and related caselaw, we ultimately held that "NRS 41.035 allows
one statutory limitation for each cause of action, regardless of the number
of actors." Id. at 754-60, 961 P.2d at 758-61 (emphasis added).
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statute the interpretation that reason and public policy would indicate the
legislature intended." Id. (internal citations omitted).
In repealing NRS 41A.031(3)(a), which limited "the
noneconomic damages awarded to each plaintiff from each defendant," the
2004 amendments to NRS Chapter 41A adopted instead NRS 41A.035,
which limits "the amount of noneconomic damages awarded in such an
action." (Emphases added.) Such an alteration suggests that
noneconomic damages are restricted to a per-incident basis. See McKay v.
Bd. of Supervisors of Carson City, 102 Nev. 644, 650, 730 P.2d 438, 442
(1986) ("It is ordinarily presumed that the [L]egislature, by deleting an
express portion of a law, intended a substantial change in the law.").
Particularly helpful is legislative history prior to the 2004
Ballot Question Number 3 that resulted in the addition of NRS 41A.035,
which indicated that the aggregate cap was per incident, with no
exceptions. See Hearing on S.B. 97 Before the Senate Judiciary Comm.,
72d Leg. (Nev., March 24, 2003) (testimony of Jack Meyer, The Doctors
Company, at 25). The legislative history also discusses a comparison
between Nevada's statute and California's analogous statute, noting
that the cap in NRS 41A.035 is similarly "per incident, not per
claimant, and not per doctor." Id. at 10. Additionally, the official
explanation to Question No. 3 stated that the previous statute provided
that "a person seeking damages in a medical malpractice action is
limited to recovering $350,000 in noneconomic damages from each
defendant. . . . The proposal, if passed, would. . . limit the recovery of
noneconomic damages to $350,000 per action." Nevada Ballot Questions
2004, Question No. 3, Explanation at 14, (emphases added) available
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at https.//w-ww.leg.state.nv.us/Division/ResearchNoteNV/BallotQuestions/
2004.pdf 2004 (last visited July 29, 2015).
The intent behind the statute is further evinced by the
Legislature's discussion of recent amendments to NRS 41A.035, indicating
that the purpose of the 2004 amendments was to clarify that the cap for
noneconomic damages is intended to apply per action. See Hearing on S.B.
292 Before the Senate Judiciary Comm., 78th Leg. (Nev., March 26, 2015)
(statement of John Cotton, Keep Our Doctors in Nevada, at 14).
Based on the foregoing, we conclude that the noneconomic
damages cap in NRS 41A.035 applies per incident, regardless of how many
plaintiffs, defendants, or claims are involved. Thus, the district court
erred in denying the portion of Dr. Tam's motion in limine requesting that
the plaintiffs' noneconomic damages be limited to $350,000 as a whole
pursuant to NRS 41A.035.
The district court erred when it found NRS 41A.035 only applies to claims
of professional negligence and not to medical malpractice
The district court found that NRS 41A.035 only applies to
"professional negligence" claims and not to "medical malpractice" claims.
Citing this court's opinion in Egan v. Chambers, 129 Nev., Adv. Op. 25,
299 P.3d 364 (2013), the district court explained that the terms were
essentially mutually exclusive. Dr. Tam argues that professional
negligence is broader and includes medical malpractice. Dr. Tam
additionally argues that NRS 41A.035 applies because under the statutory
definitions, he is a physician, and physicians are covered under
professional negligence. Cornell argues that her claims are based on
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medical malpractice, which is distinct from professional negligence, and
following Egan's logic, the statute does not apply. 7
NRS 41A.035 applies "ifin an action for injury or death
against a provider of health care based upon professional negligence."
Under the then-existing statutes, "[p]rofessional negligence" was defined
as a "negligent act or omission to act by a provider of health care in the
rendering of professional services, which act or omission is the proximate
cause of a personal injury or wrongful death." NRS 41A.015. A "[p]rovider
of health care" included a "physician licensed under chapter 630 or 633 of
NRS." NRS 41A.017 (2011). NRS 41A.013 defined "[p]hysician [as] a
person licensed pursuant to chapter 630 or 633 of NRS," and NRS 630.014
defines "[p]hysician [as] a person who has complied with all the
requirements of [NRS Chapter 630] for the practice of medicine." It is
clear that Dr. Tam is a physician as defined by NRS 630.014.
What is unclear from our reading of the statutes is the
relationship between professional negligence and medical malpractice. 8
NRS 41A.009 (1989) defined "Imledical malpractice [as] the failure of a
7 Curiously, Cornell labeled her claim against Dr. Tam as
"professional negligence," however, the district court did not address this
distinction as the court determined that NRS 41A.035 was
unconstitutional.
8 The Legislature has since clarified this confusion by striking the
term "medical malpractice" in NRS Chapter 41A and replacing those
references with the term "professional negligence." See 2015 Nev. Stat.,
ch. 439, §§ 1.5, 2, 5, 6, 7, 10, at 2526-28. The Legislature has also repealed
NRS 41A.009 and 41A.013, and provided a new definition for professional
negligence under NRS 41A.015, incorporating provisions of the previously
used definition of medical malpractice. Id. at § 12, at 2529.
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physician, hospital or employee of a hospital, in rendering services, to use
the reasonable care, skill or knowledge ordinarily used under similar
circumstances." Although not identical, the definitions for both
professional negligence and medical malpractice are similar and
ultimately include negligence by a physician. 9 Moreover, while the
definition of medical malpractice is narrower in scope, the definition of
professional negligence encompasses almost all of the medical malpractice
definition. 1 °
This ambiguity is expounded when taking into account the
legislative history of these statutes. In 2004, Nevada voters were
presented with and approved Question No. 3, the Keep Our Doctors in
Nevada initiative, which added NRS 41A.035 to the state's statutes. The
initiative was explained to the voters as follows, using professional
negligence and medical malpractice interchangeably:
9 This
court made a similar observation in Fierle v. Perez, 125 Nev.
728, 737, 219 P.3d 906, 912 (2009), overruled on other grounds by Egan v.
Chambers, 129 Nev., Adv. Op. 25, 299 P.3d 364, 365 (2013):
Initially, we note that the definition for
professional negligence that was added in 2004
(NRS 41A.015) essentially duplicates the
definition for medical malpractice contained in
NRS 41A.009. As such, it is not clear whether the
references to medical malpractice in NRS Chapter
41A encompass the almost identically defined
professional negligence.
10 "Medicalmalpractice" includes the broader term "hospital," while
"[p]rovider of health care" uses the term "licensed hospital." See NRS
41A.009 (1989), NRS 41A.015. Thus, with the exception of an unlicensed
hospital, provider of health care is broader than medical malpractice, such
that it encompasses medical malpractice.
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If passed, the proposal would limit the fees an
attorney could charge a person seeking damages
against a negligent provider of health care in a
medical malpractice action. Professional
negligence means a negligent act, or omission to
act, by a provider of health care that is the
proximate cause of a personal injury or wrongful
death....
The law currently provides that a person seeking
damages in a medical malpractice action is limited
to recovering $350,000 in noneconomic damages
from each defendant. . . .
Currently, damages that an injured person is
allowed to recover in a medical malpractice action
may be reduced by benefits the person received
from a third party.. . .
Nevada Ballot Questions 2004, Question No. 3, Explanation at 14,
(emphasis added), available at https://www.leg.state.nv.us/Division/
Research/VoteNV/BallotQuestions/2004.pdf (last visited July 29, 2015).
Similarly, the legislative history prior to the voter initiative indicates that
the statute would apply to medical malpractice actions, and the discussion
surrounding the proposed legislation further conflated the terms
Nevada's initiative petition defines professional
negligence as being the "act or omission to act by a
provider of health care in the rendering of
professional services, which act or omission is the
proximate cause of a personal injury or wrongful
death." In other words, in a medical malpractice
case the alleged negligent act must have actually
contributed to the injury or the death of a patient.
This is logical, it seems appropriate, and it works
well in other states.
Hearing on S.B. 97 Before the Senate Judiciary Comm., 72d Leg. (Nev.,
March 5, 2003) (testimony of Dr. Robert W. Shreck, President, Nevada
Medical Association) (emphases added).
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Here, the district court relied on Egan for the proposition that
medical malpractice and professional negligence are essentially mutually
exclusive. In Egan, we held that NRS 41A.071, which requires an
affidavit of merit in medical malpractice claims, applied only to medical
malpractice actions, thus partly overruling a previous decision that
applied the statute to professional negligence actions as well. 129 Nev.,
Adv. Op. 25, 299 P.3d at 365. NRS 41A.071 did not mention "professional
negligence," only "medical malpractice and dental malpractice," so this
court turned to the statutory definitions of medical malpractice. Id. at
367. Because medical malpractice only encompasses claims against
physicians licensed pursuant to NRS Chapters 630 and 633, and
podiatrists were licensed under NRS Chapter 635, this court determined
that a negligence action against a podiatrist, while professional
negligence, was outside the purview of medical malpractice. Id.
To the contrary, NRS 41A.035 applies to professional
negligence claims, which by definition of NRS 41A.015 applies to "a
provider of health care," and includes physicians licensed pursuant to NRS
Chapters 630 and 633. NRS 41A.017. Thus, construing the statutes in
harmony and consistent with what reason and public policy suggest the
Legislature intended, we conclude that medical malpractice is
incorporated into professional negligence, making NRS 41A.035 applicable
to medical malpractice actions. Accordingly, we further conclude that the
district court erred when it found that NRS 41A.035 only applies to
professional negligence claims and not to medical malpractice claims.
CONCLUSION
Based on our analysis, we conclude that the district court
erred in finding NRS 41A.035 unconstitutional. We further conclude that
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the district court erred when it found NRS 41A.035's cap for noneconomic
damages applies per plaintiff and per defendant. Finally, we conclude
that the district court erred when it found that NRS 41A.035 did not apply
to claims for medical malpractice. We therefore grant Dr. Tam's petition
and instruct the clerk of this court to issue a writ of mandamus
instructing the district court to vacate its order and to conduct further
proceedings consistent with this opinion.
ca.-1 , C.J.
Hardesty
J.
J.
Douglas
Cherry
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Saitta
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