IN THE SUPREME COURT OF THE STATE OF NEVADA
SOUTHERN NEVADA ADULT No, 67931
MENTAL HEALTH SERVICES;
CHELSEA SZKLANY; MICHAEL
WILLDEN; RICHARD WHITLEY; LEON
RAVIN, M.D.; ANURAG GUPTA, M.D.;
AND KYLE DEVINE,
FILE
Petitioners, MAY 1 9 2016
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
VALERIE ADAIR, DISTRICT JUDGE,
Respondents,
and
JAMES FLAVY COY BROWN,
Real Party in Interest.
ORDER DENYING PETITION
This is an original petition for a writ of mandamus or
prohibition challenging a district court order denying a motion to dismiss
for failure to attach an NRS 41A.071 medical malpractice expert affidavit
to a complaint.
On August 25, 2014, real party in interest, James Brown,
filed a class action complaint for negligence, professional negligence, gross
negligence, negligence per se, breach of fiduciary duty, tortious breach of
fiduciary duty, and negligent hiring, supervision and training. Brown
asserted these claims against the petitioners who were public officials and
various hospital administrators, physicians, social workers, and health
professionals associated with Southern Nevada Adult Mental Health
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Services, which operated the Rawson-Neal Psychiatric Hospital (Rawson-
Neal). Brown and the people he seeks to represent were former
psychiatric patients at Rawson-Neal. Brown alleges that Rawson-Neal
involuntarily discharged patients and sent them out of the state, with no
plan for follow-up treatment once they arrived at their destination. Brown
claims these patients were provided with prepaid bus tickets, medicated
with powerful anti-psychotic/tranquilizing drugs before they were
discharged, and physically escorted to taxis bound for the Greyhound Bus
Station in Las Vegas.
On December 9, 2014, Rawson-Neal filed a motion to dismiss.
We do not have the briefing on the motion to dismiss in the record on
appeal but it appears that Rawson-Neal argued that NRS 41A.071
required the district court to dismiss the case without prejudice because
Brown did not attach a medical affidavit to his complaint. On January 28,
2015, the district court held a hearing on the motion and determined that
a claim of professional negligence against a physician is medical
malpractice and thus, an affidavit is required. Rawson-Neal requested
that the district court dismiss the entire complaint without prejudice, but
the court declined. Instead, the "[c]ourt suggested in an abundance of
caution [Brown's council] should get the affidavit." At the end of the
hearing, the court stated "its understanding that the Plaintiff will be
amending the complaint to allege medical malpractice, provide an
affidavit."
On February 11, 2015, the district court entered a minute
order denying the motion to dismiss and permitting Brown to amend his
1 The record only included the minutes from the hearing.
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complaint. Brown had already filed an amended complaint with an
affidavit on February 10, 2015, the day before the statute of limitations
ran. The amended complaint added a claim of medical malpractice and
conspiracy, but did not eliminate any of the other claims made in the
original complaint. Rawson-Neal then filed the instant writ.
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." NRS
34.160. On the other hand, a writ of prohibition restrains the proceedings
of the district court, if "such proceedings are without or in excess of the
jurisdiction of such tribunal." Int'l Game Tech., Inc. v. Second Judicial
Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); NRS 34.320.
Writ relief may not be used "to control the judicial discretion of the district
court unless discretion is manifestly abused or is exercised arbitrarily or
capriciously." State v. Eighth Judicial Dist. Court, 118 Nev. 140, 147, 42
P.3d 233, 237-38 (2002) (internal quotation omitted). It "is an
extraordinary remedy that will only issue at the discretion of this court."
Id. at 146, 42 P.3d at 237. A writ will "not issue if the petitioner has a
plain, speedy, and adequate remedy in the ordinary course of law."
Wheble v. Eighth Judicial Dist. Court, 128 Nev. 119, 122, 272 P.3d 134,
136 (2012).
This court generally declines to consider writ petitions that
challenge district court denials of motions to dismiss. See State, 118 Nev.
at 147, 42 P.3d at 238. Still, this court may hear such petitions when: "(1)
no factual dispute exists and the district court is obligated to dismiss an
action pursuant to clear authority under a statute or rule; or (2) an
important issue of law needs clarification and considerations of sound
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judicial economy and administration militate in favor of granting the
petition." Id. However, "Mew such writ petitions are granted and most
are summarily denied." Beazer Homes Nev., Inc. v. Eighth Judicial Dist.
Court, 120 Nev. 575, 579, 97 P.3d 1132, 1134 (2004).
Under the first prong of the test, we decline to consider this
writ petition. Rawson-Neal argues that under the "clear language of NRS
41A.071 and the applicable case law, the State Defendants' motion to
dismiss should have been granted once the District Court concluded that
the claims constituted medical malpractice." NRS 41A.071 states, in
relevant part, "[i]f an action for medical malpractice . . . is filed in the
district court, the district court shall dismiss the action, without prejudice,
if the action is filed without af ] [medical expert] affidavit." Washoe Med.
Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1302, 148 P.3d 790, 793
(2006) This court has decided that "a medical malpractice complaint filed
without a supporting medical expert affidavit is void ab initio." Id. at
1304, 148 P.3d at 794. This court explained that void ab initio meant that
the complaint has no force and effect, does not legally exist, and therefore,
cannot be amended. Id.
As such, if the district court determined that all the claims in
the complaint were for medical malpractice, under Washoe Medical Center,
the district court would have been obligated to dismiss the complaint as
void ab initio. Yet, from the limited record before us, that does not appear
to be the situation in this case. The record only demonstrates that the
district court determined that Brown's professional negligence claim
against the Rawson-Neal physicians was for medical malpractice and
thus, needed a medical malpractice affidavit. Washoe Medical Center did
not clearly require the district court to dismiss the whole complaint
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because it found that one of Brown's claims within the complaint was for
medical malpractice, while making no findings as to the other claims.'
Indeed, the complaint in Washoe Medical Center was for negligence during
a surgical procedure and this court did not discuss, and it does not appear
that the complaint asserted, any other potential non-medical malpractice
claims. See id. at 1301, 148 P.3d at 792. Additionally, the amended
complaint with the supporting affidavit in Washoe Medical Center was
filed after the statute of limitations had expired, making it unclear
whether a complaint may be amended to add a medical malpractice claim
before the statute of limitations has run, as is the situation here. 3 Id.; see
Baxter v. Dignity Health, 131 Nev., Adv. Op. 76, 357 P.3d 927, 931
(reading together the plaintiffs complaint and affidavit of merit, filed a
day after the complaint, in part because the defendants were in "no worse
position" than if the plaintiff had attached the affidavit to the complaint).
The interest of sound judicial economy also militates against
writ relief at this point in this case. As noted, the district court expressed
no opinion on whether Brown's other negligence claims were for medical
malpractice and we decline to do so in the first instance. The "distinction
'Brown also brought his professional negligence cause of action
against a hospital administrator and other professionals at Rawson-Neal.
The district court did not decide whether those claims fell under the
medical malpractice statute.
3 Moreover, it is difficult for this court to conclude that the district
court manifestly abused its discretion or exercised it in an arbitrary and
capricious manner by failing to decide whether each cause of action in
Brown's complaint was for medical malpractice. The motion practice for
the motion to dismiss was not included in the record, so this court does not
know the content of Rawson-Neal's argument to the district court.
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between medical malpractice and negligence claims is subtle [and]
differentiating between the two types of claims depends heavily on the
facts of each individual case." Dawkins v. Union Hasp. Dist., 758 S.E.2d
501, 504 (S.C. 2014). Most of the allegations in the complaint revolved
around the discharge of Brown and the failure of Rawson-Neal to develop
or implement proper discharge policies. Yet, we have hardly any facts on
the process of discharging Brown, how Rawson-Neal formulated its
discharge policies, and whether and to what extent non-medical
professionals were involved. Nothing prohibits Rawson-Neal from
bringing a motion for summary judgment when the record is more
developed and challenging that order by writ, or proceeding through the
normal appeals process. For these reasons, we decline to intervene by
extraordinary writ at this point in the proceedings and, we
ORDER the petition DENIED.
A WI cn.
Parraguirre
A--Lvet-a-c
Hardesty
Saitta
Gibbons Pickering
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cc: Hon. Valerie Adair, District Judge
Attorney General/Carson City
Attorney General/Las Vegas
Allen Lichtenstein
Staci J. Pratt
Eighth District Court Clerk
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S. Nev. Adult Mental Health Serv.'s v. Dist. Ct. (Brown)
Combined Opinion