Advance Opinipii
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
CHRISTINA KUSHNER, NI.D.; AND No. 8.1.779-COA
WOMEN'S CARE CENT-ER Or
NEVADA, INC.,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT FILE
COURT OF THE STATE OF NEVADA,
IN AND FO.R THE COUNTY OF AUG 0 5 2021
CLARK; AND THE HONORABLE
TIERRA DANIELLE JONES, DISTRICT
JUDGE, IEF ospury. CLERK
Respondents,
and
THE ESTATE OF CAROL A. GAETANO,
DECEASED; AND VINCENT
GARBIT ELLE, ADMINISTRATOR,
Real Parties in Interest.
Original petition for a writ of mandamus challenging a district
court order denying a motion for summary judgment in a medical
malpractice action.
Petition granted.
McBride Hall and Robert C. McBride and Heather S. Hall, Las Vegas,
for Petitioners.
Heaton & Associates and Jared F. Herling, Las Vegas,
for Real Parties in Interest.
t2.1
BEFORE THE COURT OF APPEALS. C113.BONS, C.j., TAO and BULLA,
JJ.
OPINION'
PER CURIAM:
• Pursuant to NRS /11 A.097(2), a medical malpractice action
against a health care provider must be filed within one year of the injury's
discovery or three years of the date of injury, whichever occurs first. NRS
41A.097(3) permits tolling of both limitations periods "for any period during
which the provider of health care has concealed any act, error or omission
upon which the action is based and which is known or through the use of
reasonable diligence should have been known to the provider of health
care." And the Supreme Court of Nevada has interpreted the- statute to
warrant tolling where the health care provider's intentional concealment
<`would have hindered a reasonably diligent plaintiff frorn procuring an
expert affidavit" as required under NRS 41A.071. Winn u. Sunrise Ho.sp. &
Med. Ctr., 128 Nev. 246, 255, 277 P.3d 458, 464 (2012).
In this original proceeding, we consider whether the one-year
limitations period is tolled for concealment where (1) the undisputed facts
show that the plaintiffs were in possession of the medical records necessary
to procure the expert affidavit inore than a year prior to filing the complaint.
lWe originally resolved this petition in an unpublished order granting
the petition and issuing a writ of mandamus. Petitioners subsequently filed
a motion to publish the order as an opinion. We grant the motion and
replace our earlier order with this opinion. See NRAP 36(f). Real parties in
interest filed a petition for rehearing of our prior decision to grant the
petition for a writ of mandamus. Having reviewed the petition, we deny
rehearing. See NRAP 40(c).
2
and (2) the alleged conceahnent did not hinder the procurement of the
affidavit. Because the plaintiffs had all necessary medical records and were
therefore on inquiry notice of the claim more than a year before filing the
complaint, and because the alleged concealment did not hinder the
plaintiffs ability to procure an expert affidavit. we conclude that the one-
year statute of limitations expired and extraordinary writ relief is
appropriate. We therefore grant the petition for a writ of mandamus and
direct the district court to grant the defendants' motion for summary
judgment.
in December 2015, petitioner Christina Kushnir, M.D.,
performed a diagnostic laparoscopy on Carol Gaetano during which
Gaetano sustained a perforation to her colon requiring hospitalization. It
is unclear whether the procedure alone caused the perforation or whether
it resulted in conjunction with Gaetano's advanced cancer. Gaetano died on
elanuary 17, 2016. Real party in interest and co-administrator of Gaetano's
estate, Vincent Garbitelli, M.D., requested an autopsy frorn the coroner's
office.2 The coroner issued its autopsy report on January 22, 2016.
Dr. Garbitelli and Gaetano's estate (collectively the Estate)
received Gaetano's complete medical records in August 2016.
Approximately 15 months later, in November 2017, the Estate filed a
complaint against Dr. Kushnir and her employer, Women's Care Center of
Nevada, Inc. (collectively hereinafter Dr. Kushnir), alleging medical
malpractice pursuant to NRS 41A.015. Dr. Garbitelli prepared the expert
affidavit filed with the complaint. Dr. Kushnir filed a motion to dismiss,
arguing that the complaint was untimely. The Estate opposed the motion
2Dr. Garbitelli is also Gaetano's second cousin.
3
on the ground that the one-year limitations period was tolled because Dr.
Kushnir had allegedly concealed the true cause of Gaetano's perforated
colon by telling the family it was caused by the cancer. The district cou.rt
denied the motion, reasoning that more discovery needed to be conducted.
Later, after discovery was significantly completed, Dr. Kushnir
moved for summary judgment, arguing again that the complaint was
untimely. Specifically, Dr. Kushnir argued that the Estate was on inquiry
notice of the claim as of August 2016. when it received a complete copy of
Gaetano's medical records. and therefore the November 201.7 complaint was
untimely filed. After a hearing on the motion, the distriCt court denied the
request, concluding that "questions of fact exist with respect to Dr.
Kushnir's alleged concealment." Dr. Kushnir now petitions this court for a
writ of mandamus.
The gravamen of Dr. Kushnir's writ petition is that the Estate's
medical inalpractice complaint was untimely filed and therefore the district
court was obligated to grant her motion for summary judgment pursuant to
NRS 41A.097(2). Specifically, Dr. Kushnir contends that the Estate was on
inquiry notice of the claim no later than August 2016, once it received the
complete medical records, and therefore the complaint that the Estate filed
in November 2017 was barred by the one-year statute of limitations. The
Estate argues that the district court correctly denied the summary
judgment motion because of unresolved facts regarding Dr. Kushnir's
alleged concealment.
I I.
A writ of mandamus is available to compel the performance of
an act that the law requires or to control an arbitrary or capricious exercise
of discretion. Inel Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev.
'1
193, 197, 179 P.3d 556, 558 (2008). Whether to consider a petition for a writ
of mandamus is within this court's sound discretion. Smith v. Eighth
judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).
Ordinarily, extraordinary writ relief is not available to challenge a district
court's order denying summary judgrnent, "but an exception applies when
'no disputed factual issues exist and, pursuant to clear authority under a
statute or rule, the district court is ohligated to dismiss an action.'" Libby
v. Eighth Judicial Dist. Court, 130 Nev. 359, 363, 325 P.3d 1276, 1278
(2014) (quoting Smith v. Eighth Judicial Dist. Court, 113 Nev. 1343, 1.345,
950 P.2d 280, 281 (1997)).
In this case, the district court denied Dr. Kushnir's summary
judgment motion despite the fact that the Estate's complaint was plainly
untimely and tolling was unavailable, as the alleged concealment had not
hindered the Estate's ability to discover the alleged malpractice and procure
an expert affidavit. Because the facts relevant to the timeline of events are
not in dispute, and because the district court was obligated to dismiss the
action pursuant to clear statutory authority, we elect to exercise our
discretion and entertain this writ petition.
111.
"NRS 41A.097(2)s one-year limitation period is a statutory
discovery rule that begins to run when a plaintiff knows or, through the use
of reasonable diligence, should have known of facts that would put a
reasonable person on inquiry notice of his cause of action." id. at 364, 325
P.3d at 1279 (internal quotation marks omitted). "[A]. person is put on
'inquiry notice when he or she should have known of facts that 'would lead
an ordinarily prudent person to investigate the matter further."' Winn, 128
Nev. at 252, 277 P.3d at 462 (quoting Black's Lau: Dictionary 11.65 (9th ed.
COURT Of APPEALS
OF
NEVADA
5
(co) (9470 41/0c.
2009)). Accordingly, for purposes of N RS 41A.097(2), an injury is discovered
once the injured party possesses facts that would lead "an ordinarily
prudent person to investigate further into whether [his or her] injury may
have been caused by someone's negligence." Id. at 253, 277 P.3d at 462.
Pursuant to NRS 11.A.097(3), however, "[subsection 2's] time
limitation is tolled for any period during which the provider of health care
has concealed any act, error or omission upon which the action is based."
Thus, a plaintiff seeking to toll subsection 2's one-year discovery period
must show an intentional concealment and "establish• that he or she
satisfied subsection 2's standard of 'reasonable diligence."' Winn, 128 Nev.
at 255, 277 P.3d at 4.64. In short, the Estate must establish that (1.) Dr.
Kushnir "intentionally withheld information," and (2) "that this
withholding would have hindered a reasonably diligent plaintiff from
procuring an expert affidavit." Id.
A.
As a preliminary matter. we note that for purposes of this
petition we assume (without deciding) that Dr. Kushnir intentionally
withheld and/or concealed information following the surgery. Nevertheless,
for the reasons articulated below, the Estate's medical malpractice claim
fails as a matter of law.3
3A1though we assume concealment for purposes of our analysis
herein, we note that the Estate's concealment claim rests, at best, on
dubious grounds. To the extent the Estate contends that Dr. Kushnir
engaged in active and fraudulent concealment by proffering a non-negligent
explanation for Gaetano's perforated colon (i.e., that Gaetano's advanced
cancer was the primary cause of the perforation, not the laparoscopy) and
failing to acknowledge that she was negligent. such an assertion finds little
support in law, as one's mere denial of negligence is not tantamount to
fraudulent concealment. See Grimmett v. Brotvn, 75 F.3d 506, 51.5 (9th Cir.
In its answering brief, the Estate concedes and agrees with Dr.
Kushnir that the Estate received Gaetano's complete medical records in
August 2016. Further, Dr. Garbitelli's expert affidavit, which was attached
to the November 2017 complaint, states that his expert medical opinions
contained therein are based on his "education, training, 40 years of medical
practice, review of the medical records and facts o[f] this case." (Emphasis
added.) Thus, the undisputed facts establish that the discovery rule was
triggered in August 2016 when Garbitel]i "had facts before hirn that would
have led an ordinarily prudent person to investigate further," thereby
putting him on inquiry notice of the cause of action. Winn, 128 Nev. at 253,
277 P.3d at 462. As a result, the one-year statute of limitations expired in
August 2017, making the November 2017 complaint untimely. We
therefore conclude that Dr. Kushnir correctly asserts that the one-year
statute of limitations had run on the Estate's medical malpractice claim.
Despite these undisputed facts, the Estate appears to argue
that the concealment clause tolls the one-year statute of limitations
indefinitely and that a claim of concealment forgives the reasonable
diligence requirement. Therefore, the Estate argues, the district court
correctly denied Dr. Kushnir's summary judgment motion. We conclude,
however, that these arguments are unpersuasive.
B.
First, the tolling provisiOn is not limitless. Although NRS
41A.097(3) states that "[subsection 2's] time limitation is tolled for any
1996) ("A failure to 'own up does not constitute active conceahnent."
(emphasis omitted)); cf. Joynt v. Cal. Hotel & Casino, 108 Nev. 539, 542, 835
P.2d 799, 801 (1992) (recognizing that it is the plaintiffs burden to prove a
defendant's negligence).
period during which the provider of health care has concealed any act, error
or omission," possibly suggesting never-ending tolling, Winn clarifies that
the concealment must be of the type that "would have hindered a reasonably
diligent plaintiff from procuring an expert affidavit." Winn, 128 Nev. at
255, 277 P.3d at 464. In other words, the concealment must have interfered
with a reasonable plaintiff s ability to satisfy the statutory requirement that
the complaint be accompanied by an expert affidavit. See NRS 41A.071.
Here, the alleged concealment was Dr. Kushnir's statement
that Gaetano's advanced cancer, and not the laparoscopic procedure, caused
the perforation to her colon. But this alleged concealment did not impact
Dr. Garbitelli's ability to procure an expert affidavit. Indeed, Dr.
Garbitelli's affidavit states that it was the medical records that revealed the
alleged negligence—medical records that had been in his possession since
August 2016 and admittedly served as the sole factual basis for his medical
opinions. Accordingly, even assuming that :Dr. Kushnir concealed the true
cAuse of the perforated colon, the tolling period, if any, ended in August
2016 when .Dr. Garbitelli received the complete medical records and the
Estate was put on inquiry notice of the claim, making procurement of the
expert affidavit attainable without hindrance. Therefore, the one-year
statute of limitations expired in August 2017—approximately three months
before the complaint was filed.
Nevertheless, relying on Winn, the Estate argues that the
concealment tolls the statute of limitations despite the discovery rule. The
Estate misconstrues Winn. In Winn, the supreme court concluded that
although the plaintiffs complaint was filed more than one year after
discovery of the injury, 128 Nev. at 253-54, 277 13.3d at 4.63, it could net
affirm the district court's grant of summary judgment based on the statute
8
of limitations because "factual issues remain[ed] as to whether Sunrise
concealed records from Winn so as to warrant tolling." Id. at 258, 277 P.3d
at 466. Those unresolved factual issues related directly to whether the
undisclosed information was material to the plaintiffs claim, thus
hindering the procurement of an expert affidavit. Id. at 256, 277 P.3d at
465. In this case, as explained above, no such hindrance occurred, as the
Estate possessed the complete medical records in August 2016 and those
records provided Dr. Garbitelli with all the information necessary to
discover the alleged medical malpractice and prepare his expert affidavit.
Accordingly, Winn is unavailing on this point.4
C.
Second, the Estate's argument that concealment forgives the
reasonable diligence requirement is without merit. Winn, in fact,
manifestly states the opposite. The Winn. court noted specifically that'a
plaintiff seeking to toll subsection 2's one-year discovery period
must ... establish that he or she satisfied subsection 2's standard of
'reasonable diligence.'" Id. at 255, 277 P.3d at 464. Thus, reasonable
4 The Estate also contends that footnote 4 in the Winn opinion
expressly authorizes "timely filing suit even more than a year after receiving
medical records (i.e.[,] 'discovering the injury based on 'inquiry notice') if
the two-prong test for concealment is satisfied." (Emphasis added.) This,
however, is not what footnote 4 holds. Rather, footnote 4 holds that the
tolling provision of subsection 3 applies to both the three-year and one-year
limitations periods of subsection 2 and that a plaintiffs independent
discovery of his or her claiin will not commence the one-year limitations
period if the defendant's ongoing concealment (e.g., failure to produce
medical records) continues to hinder the plaintiffs ability to procure an
expert affidavit. Winn, 128 Nev. at 254 n.4, 277 P.3d at 463 n.4. Here, as
explained in the body of the opinion, Dr. Kushnir's alleged conceahnent did
not hinder the Estate's ability to procure its expert affidavit.
9
diligence is clearly required, and the Estate was not reasonably diligent
here, as it waited almost 3 months to review the medical records and
approximately 15 months to file its complaint after being placed on inquiry
notice in August 2016. Consequently, we conclude that this contention is
rneritless as it finds no support in controlling law. See Edwards u.
Emperor's Garden Rest., 122 Nev. 31.7, 330 n.38, 130 P.3d 1.280, 1288 n.38
(2006) (explaining that this court need not consider an appellant's
contention that is not cogently argued or lacks the support of relevant
authority).5
Iv.
In sum, we conclude that extraordinary writ relief is warranted
because no disputed issues of material fact exi.st as to when the Estate was
on inquiry notice of the cause of action and, based on those same undisputed
facts, subsection 3's tolling provision is inapplicable. See Libby, 130 Nev. at
363, 325 P.3d at 1278. The irrefutable facts, therefore, establish that the
_
one-year statute of limitations expired in August 2017, making the
November 2017 complaint untimely. As a result, "pursuant to clear
authority under a statute or rule, the district court [wals obligated to
5Additional1y, the Estate suggests the November 2017 complaint was
timely because it was filed "within one year of Dr. Garbitelli having actual
knowledge of [Dr."I Kushnir's negligence." (Emphasis added.) Actual
knowledge, however, is not the standard; rather, subsection 2's one-year
limitations period is triggered "when a plaintiff knows or, through the use
of reasonable diligence, should have known of facts that would put a
reasonable person on inquiry notice of his cause of action." Libby, 130 Nev.
at 364, 325 P.3d at 1279 (emphasis added) (internal quotation marks
omitted). Therefore, this contention, too. fails as a matter of law.
10
dismiss [the] action." Id. (quoting Smith, 1_1.3 Nev. at 1345, 950 P.2d at
281).6
We therefore grant the petition and direct the clerk. of this court
to issue a writ of mandamus instructing the district court to grant
petitioners motion for summary judgment.
Gibbons [71j/rFt"#41
Tao
Astr---
Tr
Bulla
6lnsofar as the parties raise arguments that are not specific.ally
addressed in this opinion, we have considered the sarne and conclude that
they either do not present a basis for relief or need not be reached given the
disposition of this appeal.
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