Dolorfino v. Univ. Med. Ctr. of S. Nev.
Dolorfino v. Univ. Med. Ctr. of S. Nev.
Opinion of the Court
This medical malpractice suit requires us to determine whether a tooth injury is "directly *1040involved" or "proximate" to a hysterectomy that required an endotracheal intubation to safely anesthetize the patient. NRS 41A.100(1)(d). We hold that it is not. Therefore, the patient was not required to attach a medical expert's affidavit to her complaint, so the district court erred in dismissing her suit. Accordingly, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
This case stems from a tooth injury sustained by appellant Susan Dolorfino during an emergency hysterectomy she underwent at University Medical Center (UMC). That injury was allegedly caused by the actions of respondent Dr. Robert Harper Odell, Jr., an anesthesiologist, who performed an endotracheal intubation on Dolorfino. That procedure involves passing a plastic tube through the patient's mouth and trachea to maintain an open airway while the patient is under general anesthesia. Dolorfino claims that her injury occurred during a power outage and subsequent blackout, during which Dr. Odell dropped a medical instrument onto Dolorfino's tooth. Prior to surgery, Dolorfino had signed a consent form acknowledging that "injury to teeth/dental appliances" was a risk associated with general anesthesia.
Dolorfino sued Dr. Odell and UMC to recover for damages to her tooth. Dr. Odell and UMC moved for summary judgment, arguing that Dolorfino's complaint must be dismissed pursuant to NRS 41A.071 because it was not accompanied by a supporting affidavit from a medical expert. Treating those motions as motions to dismiss, the district court held that the NRS 41A.071 affidavit requirement applied to all of Dolorfino's claims. Because Dolorfino's complaint lacked such an affidavit, the court dismissed her case.
Dolorfino appeals.
DISCUSSION
This appeal presents a single issue: Whether Dolorfino's failure to attach a medical expert's affidavit to her complaint required dismissal of the entirety of her suit pursuant to NRS 41A.071. We review that legal issue de novo while "recogniz[ing] all factual allegations in [the] complaint as true and draw[ing] all inferences in [the plaintiff's] favor." Buzz Stew, LLC v. City of N. Las Vegas,
NRS 41A.071 requires medical malpractice suits to be dismissed if the complaint is filed without a supporting affidavit from a medical expert. "[T]he legislative history of NRS 41A.071 demonstrates that it was enacted to deter baseless medical malpractice litigation, fast track medical malpractice cases, and encourage doctors to practice in Nevada while also respecting the injured plaintiff's right to litigate his or her case and receive full compensation for his or her injuries." Zohar v. Zbiegien,
However, NRS 41A.071 's affidavit requirement does not apply "in a res ipsa case under NRS 41A.100(1)." Szydel v. Markman,
Dolorfino presents a straightforward argument: Her tooth was not "directly involved"
*1041or "proximate" to her hysterectomy, so her case qualifies as a res ipsa case under NRS 41A.100(1)(d) and is, therefore, exempt from the NRS 41A.071 affidavit requirement.
UMC attempts to reframe the issue. While Dolorfino's tooth was not "directly involved" or "proximate" to her hysterectomy, UMC argues that the tooth was "proximate" to her endotracheal intubation, which necessarily accompanied her hysterectomy. Along similar lines, Dr. Odell warns that accepting Dolorfino's position would mean that anesthesiologists will seldom be protected by the NRS 41A.071 affidavit requirement.
This court has addressed the scope of NRS 41A.100(1)(d) on several occasions. In Johnson v. Egtedar, this court held that injuries to the colon and ureter during a spinal laminectomy"fit the factual predicates enumerated in NRS 41A.100(1)(d)."
This court has also specifically addressed a scenario wherein a patient sought to recover under NRS 41A.100(1)(d) for an injury caused by anesthesia.
The foregoing cases demonstrate that this court has interpreted the phrase "directly involved in the treatment or proximate thereto" in NRS 41A.100(1)(d) quite narrowly. Moreover, in holding that a brain injury is not "directly or proximately related to [a] rotator cuff surgery," Banks,
We are unpersuaded by Dr. Odell's argument that anesthesiologists will suffer dire consequences if we apply NRS 41A.100(1)(d) to this scenario. The law in this area has been settled for decades. For over 20 years, this court has interpreted "directly involved" and "proximate thereto" narrowly within the context of NRS 41A.100(1)(d). Johnson,
CONCLUSION
For purposes of NRS 41A.100(1)(d), a tooth injury is not "directly involved" or "proximate" to a hysterectomy. Therefore, Dolorfino was not required to attach to her complaint a supporting affidavit from a medical expert, so dismissal of her suit was unwarranted. Accordingly, we reverse and remand for further proceedings.
We concur:
Cherry, J.
Parraguirre, J.
We decline to address Dolorfino's additional arguments on appeal because this issue is dispositive. See First Nat'l Bank of Nev. v. Ron Rudin Realty Co.,
UMC and Dr. Odell attempt to distinguish Banks in that the plaintiff in Banks submitted an affidavit of a medical expert with his complaint, whereas Dolorfino did not. That distinction is inconsequential in light of Szydel, wherein this court held that the affidavit requirement does not apply to "a res ipsa case under NRS 41A.100(1)."
Reference
- Full Case Name
- Susan DOLORFINO v. UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA and Robert Harper Odell, Jr.
- Cited By
- 1 case
- Status
- Published