Dr. Shehata filed a motion to dismiss McQuade's complaint on
the basis that Dr. Riley was not a qualified expert. MDG joined and
supplemented Dr. Shehata's motion to dismiss, alleging that the affidavit
attached to McQuade's complaint did not demonstrate how MDG's actions
fell below the professional standard of care. After a hearing on the matter,
the district court determined that the affidavit was sufficient under NRS
41A.071 to allege dental malpractice against Dr. Shehata, and denied her
motion tO dismiss. But the court also determined that the affidavit did not
properly detail how MDG committed professional malpractice. Thus, the
court granted the motion to dismiss the complaint as to MDG. Further,
the court awarded MDG costs pursuant to NRS 18.020 because MDG was
a prevailing party in the action.
This court reviews issues of statutory interpretation de novo.
Egan v. Chambers, 129 Nev. , , 299 P.3d 364, 366 (2013). But we
review an award of costs for an abuse of discretion. Bobby Berosini, Ltd. v.
PETA, 114 Nev. 1348, 1352, 971 P.2d 383, 385 (1998).
Under NRS 41A.071, in a dental malpractice action, 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." McQuade asserts that NRS
41A.071 is inapplicable to his action against MDG because he is not suing
MDG for dental malpractice, rather, he is suing based on vicarious
liability and negligent hiring practices. MDG insists that McQuade's
claims against MDG were based on dental malpractice, and that NRS
41A.071 must therefore be satisfied.
We have determined that NRS 41A.071 "only applies to
medical malpractice or dental malpractice• actions, not professional
SUPREME COURT
OF
NEVADA
2
0) 947A eD
sickzj
ITVFAT.,
negligence actions." Egan, 129 Nev. at , 299 P.3d at 367. In the action
against MDG, McQuade did not have to comply with NRS 41A.071
because the action was based on respondeat superior and negligent hiring,
not medical or dental malpractice. Thus, the district court erred in
dismissing the complaint as to MDG. Further, this decision necessitates a
reversal of the district court's award of costs to MDG because MDG is not
a prevailing party. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
/ c-Ceas-c J.
Hardesty
D butp
Douglas
i (45
cc: Hon. Ronald J. Israel, District Judge
Stephen E. Haberfeld, Settlement Judge
Palazzo Law Firm
Alverson Taylor Mortensen & Sanders
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
(0) I947A