Baudo v. Bracey ( 2013 )

reading of the affidavit with the complaint. Baudo appealed and the
lower-court proceedings were stayed pending the resolution of this
appea1. 1
On appeal, we must determine whether the complaint and the
affidavit required by NRS 41A.071 should be read together or whether the
action was properly dismissed when the affidavit did not specifically name
Bracey. We conclude that the complaint and affidavit are not to be read
together, the affidavit must independently establish a claim for medical
malpractice.
NRS 41A.071 provides that a medical malpractice action must
be filed with "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." (Emphasis added.) This affidavit
requirement was implemented "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)
(quoting Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005));
see also Fierle v. Perez, 125 Nev. 728, 737-38, 219 P.3d 906, 912 (2009).
The affidavit is also necessary for the district court to confirm whether the
case is meritorious. Washoe Med. Ctr., 122 Nev. at 1304, 148 P.3d at 794.
"The parties are familiar with the facts and we do not recount them
further except as is necessary for our disposition.
2
While NRS 41A.071 is to be liberally construed, Borger v.
Eighth Judicial Dist. Court, 120 Nev. 1021, 1028, 102 P.3d 600, 605
(2004), if a party fails to file a qualifying affidavit with its complaint, then
the complaint "is void and must be dismissed; no amendment is
permitted." Washoe Med. Ctr., 122 Nev. at 1304, 148 P.3d at 794.
Whether an allegedly deficient affidavit of merit that was
properly attached to the complaint should be read together with the
complaint turns on NRS 41A.071's requirement that a medical expert's
affidavit support the allegations in the complaint. We conclude that,
based on this requirement, the affidavit must independently demonstrate
a specific claim for malpractice. Thus, a medical expert's opinion
demonstrating negligence on behalf of each defendant is required to limit
the court's caseload to only meritorious cases. In this case, the insufficient
affidavit does not meet the threshold requirement to show a specific claim
for malpractice. It is not merely missing some technical information that
could be corrected, but completely fails to allege a claim for medical
negligence against Bracey. Although amendment should be allowed in
instances where technical or clerical errors require correction, the error in
this case exceeded the scope of a mere technical or clerical error. Because
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Bracey was not named in the affidavit and his involvement is not
implicated, we conclude that the district court was obligated under the
language of NRS 41A.071 to dismiss the action.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
, C.J.
J.
Gibbons Hardesty
, J.
Parraguirre Doug
, J.
Cherry Saitta
cc: Hon. Nancy L. Allf, District Judge
Stephen E. Haberfeld, Settlement Judge
Ales & Bryson
Robichaud Law Office
Eighth District Court Clerk
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