In Limprasert v. PAM Specialty Hospital of Las Vegas LLC (2024), the Nevada Supreme Court addressed two critical issues concerning claims for professional negligence in Nevada. First, it clarified the standard for distinguishing professional negligence claims (which requires a supporting affidavit from a medical expert under NRS 41A.071) from ordinary negligence claims. This clarification effectively overruled the common knowledge exception previously established in Estate of Curtis v. South Las Vegas Medical Investors, LLC, 136 Nev. 350, 466 P.3d 1263 (2020). Second, the court confirmed that pursuant to Baxter v. Dignity Health, 131 Nev. 759, 357 P.3d 927 (2015), NRS 41A.071, the affidavit requirement was satisfied if it was incorporated by reference in the complaint and executed before the complaint was filed.
Background Facts
This case began when Somsak Limprasert suffered acute respiratory failure as a result of contracting COVID-19. He received care at a local hospital and was eventually moved to PAM Specialty Hospital of Las Vegas ("PAM") to continue his treatment and begin rehabilitation. He stayed at PAM for about a month. During this time, he was unable to stand without assistance. PAM employees engaged with Limprasert's care were aware that he could not stand alone, but let go of him while he was standing, resulting in him falling and sustaining injury.
Limprasert sued PAM for negligence and abuse of the vulnerable. He alleged that the conduct of PAM's employees constituted professional negligence as defined under Nevada's medical malpractice laws. However, Limprasert's complaint failed to include the supporting declaration of Stewart Curtis, D.O. (as referenced therein as being attached). Due to this oversight, PAM filed a motion to dismiss his claim. The following day, Limprasert filed an errata to his complaint with Dr. Curtis' declaration attached. The one-year statute of limitations (applicable at the time) had run on his professional negligence claims. The district court dismissed the claim and ruled in favor of PAM. Limprasert appealed.
Did Limprasert's claims sound in ordinary or professional negligence?
Nevada law defines professional negligence as "the failure of a provider of health care, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care." NRS 41A.015. Case law on this topic has centered around whether the claim arose outside the professional health care relationship. The court cited an example in which a patient's finances were negatively impacted by an unscrupulous social worker involved with his case during his stay at a healthcare facility. Because the injuries to the patient did not arise out of his health-related care, but rather his financial well-being, the court found that his cause of action sounded in ordinary negligence rather than professional negligence. See DeBoer v. Senior Bridges of Sparks Family Hospital Inc., 128 Nev. 406. 408, 412, 282 P.3d 727, 729, 732 (2012). The acts were not professional negligence because they were "acts outside the scope of medicine." Id. at 411.
In Estate of Curtis v. South Las Vegas Medical Investors, LLC, 136 Nev. 350, 351, 357, 466 P.3d 1263, 1265, 1269 (2020) , the court retreated from the line of cases exemplified by DeBoer. The facts of Curtis involved a nurse who made a mistake and administered morphine to the plaintiff when it had been prescribed to a different patient. To answer the question of whether this mistake constituted professional negligence the court developed a two-part test, which it adopted from a Michigan case, Bryant v. Oakpointe Villa Nursing Centre, Inc., 471 Mich. 411, 684 N.W.2d 864 (2004). The Bryant test considers the following two factors:
- "Whether the claim pertains to an action that occurred within the course of a professional relationship; and
- Whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.
- If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern [professional negligence] actions.”
In the Bryant case the court found that the nurse's actions were ordinary negligence and not professional negligence. The Curtis court stated, "although administering medication constitutes medical treatment, an allegation that a health care professional administered a patient's medicine to a different patient is an allegation of ordinary negligence that requires no expert testimony to assess.” Curtis, 136 Nev. at 357, 466 P.3d at 1269. The court further noted that medication administration did not require medical judgment. In other words, if a lay person's common knowledge could determine negligence without the assistance of exert testimony, the case involves ordinary negligence and not professional negligence. This is known as the common knowledge exception. Id.
In Limprasert, the court held that only the first part of test adopted in Curtis should apply. Therefore, the proper question for Nevada courts is whether "the claim pertains to an action that occurred within the course of a professional relationship. If it does not, the claim is for ordinary negligence." If the injury did occur during a professional relationship, then it constitutes professional malpractice and an affidavit is required, absent any applicable statutory exceptions.
The court abandoned the second part of the Curtis test because it determined it was contradictory to Nevada law, which provides that the res ipsa loquitor doctrine does not apply except in limited circumstances. The court explained, "That a claim raises a question that is within the realm of common knowledge and experience does not, except in the limited instances specified in NRS 41A.100, take it outside the affidavit-of-merit requirement in NRS 41A.071, making it confusing and unhelpful in deciding whether a claim sounds in professional or ordinary negligence."
Thus, the court here reasoned that the second part of the Curtis test should be overruled as it stands for the faulty proposition that common knowledge can be used to determine whether a claim is for professional or ordinary negligence. "The sole inquiry is whether the claim involves a provider of health care rendering services in a way that causes injury, not whether an expert affidavit or expert testimony is needed for a jury to understand the allegations," explained the court.
The court found that Limprasert' s claims sounded in professional negligence. PAM employees were aware that he was unable to stand without assistance and the evidence presented by Limprasert focused on policies, procedures, or doctor's orders in regard to his care. PAM is a healthcare provider and Limprasert was a patient under PAM's care at the time of his injury. Based on these facts, the court found that Limprasert's claims constituted professional negligence.
Did Limprasert's Complaint Require an Accompanying Affidavit?
Limprasert asserted that his complaint did not need an affidavit because the common knowledge exception exempted him from that requirement. The court was not persuaded by this argument.
NRS 41A.071 requires that an action for professional negligence be filed with a supporting affidavit from a medical expert. NRS 41A.071; see also Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298, 1034, 148 P.3d 790 (2006). The legislative history of NRS 41A.071, provides that the purpose behind requiring an affidavit was to "streamline and expedite medical malpractice cases and lower overall costs, and the Legislature was concerned with strengthening the requirements for expert witnesses." Id. Thus, any professional negligence claim filed without the affidavit is subject to dismissal.
The legislature did create a few limited exceptions to this general rule. They include:
- Res ipsa loquitor: "Expert evidence is not required and there is a rebuttable presumption that the personal injury or death was caused by negligence arises where evidence is presented." NRS 41A.100(1)
NRS 41A.100 Required evidence; exceptions; rebuttable presumption of negligence.
1. Liability for personal injury or death is not imposed upon any provider of health care based on alleged negligence in the performance of that care unless evidence consisting of expert medical testimony, material from recognized medical texts or treatises or the regulations of the licensed medical facility wherein the alleged negligence occurred is presented to demonstrate the alleged deviation from the accepted standard of care in the specific circumstances of the case and to prove causation of the alleged personal injury or death, except that such evidence is not required and a rebuttable presumption that the personal injury or death was caused by negligence arises where evidence is presented that the provider of health care caused the personal injury or death occurred in any one or more of the following circumstances:
(a) A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;
(b) An explosion or fire originating in a substance used in treatment occurred in the course of treatment;
(c) An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;
(d) An injury was suffered during the course of treatment to a part of the body not directly involved in the treatment or proximate thereto; or
(e) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient’s body.
2. Expert medical testimony provided pursuant to subsection 1 may only be given by a provider of health care 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 negligence.
3. The rebuttable presumption pursuant to subsection 1 does not apply in an action in which a plaintiff submits an affidavit pursuant to NRS 41A.071, or otherwise designates an expert witness to establish that the specific provider of health care deviated from the accepted standard of care.
4. Nothing in this section shall be construed to preclude any party to the suit from designating and presenting expert testimony as to the legal or proximate cause of any alleged personal injury or death.
(Added to NRS by 1975, 406; A 1977, 955; 1985, 1754; 1997, 1219; 1999, 5; 2002 Special Session, 9; 2015, 2528)
- The Common Knowledge Exception: This exception was essentially established in the Curtis case, which allowed a party to forgo an affidavit in cases where the understanding of negligence could be ascertained by a lay person without the guidance of the expert. This court effectively overruled that exception completely as it related to the expert witness affidavit.
Limprasert did not present any evidence that an exception within NRS 41A.100 should be applied. Therefore, he was required to include an affidavit with his complaint in compliance with NRS 41A.071.
Did the Complaint Incorporate the Affidavit by Reference?
Limprasert argued that even if his claims required an affidavit, the district court improperly granted the motion to dismiss because his expert declaration satisfied the standard set forth in Baxter v. Dignity Health, 131 Nev. 759, 357 P.3d 927 (2015). Limprasert successfully showed that a medical professional reviewed his allegations and that he had the affidavit signed before he filed the complaint. He also asserted that the complaint incorporated the affidavit by reference.
The general rule is that a professional negligence complaint will be dismissed if it is filed without an affidavit. Baxter, 357 P.3d at 929. A complaint filed "without the requisite medical affidavit does not legally exist and cannot be amended." Id.
When reviewing the complaint on a motion to dismiss, the court may also consider unattached evidence upon which the complaint necessarily relies if:
- "The complaint refers to the document;
- The document is central to the plaintiff's claim; and,
- No party questions the authenticity of the document.”
- NRS 41A.071 does not state that the affidavit of merit must be physically attached to the malpractice complaint. Baxter, 131 Nev. at 764, 357 P.3d at 930.
In the complaint, Limprasert alleged that his claims were reviewed by a medical doctor who provided a declaration of merit supporting the allegations in the complaint. He did not physically attach this declaration to the complaint.
The court ultimately concluded that the lower court should have included the declaration in their consideration of PAM's motion to dismiss. The declaration was executed under penalty of perjury and Limprasert's attorney stated that he would vouch for the authenticity of the document and PAM's attorney was comfortable "trusting the representation of Limprasert's attorney." PAM also failed to show that it was negatively impacted by the late filing of the declaration. Therefore, the Nevada Supreme Court found that the district court should have deemed the declaration incorporated by reference in the complaint and considered it when reviewing the motion to dismiss.
Key Takeaways
- Strict Scheme for Professional Negligence: Nevada has a stringent legal framework for handling professional negligence actions, including a specific definition of professional negligence and narrowly defined exceptions to the affidavit requirement.
- Distinguishing Negligence Types: The key factor in differentiating professional negligence from ordinary negligence is whether the claim arises from actions occurring within the course of a professional relationship. The complexity of a claim involving healthcare services does not alter its classification from professional to ordinary negligence.
- Affidavit Requirement: Claims that pertain to professional negligence require an affidavit under NRS 41A.071, unless they fall within an exception statutorily enumerated in NRS 41A.100.
- Exceptions to Affidavit Requirement: The only exceptions to the affidavit requirement are those enumerated in NRS 41A.100, specifically the circumstances of res ipsa loquitor. The court overruled the common knowledge exception established in Curtis.
- Affidavit Timing: An affidavit satisfies the legal requirements under Baxter even if filed after the complaint, provided it was incorporated by reference in the complaint and executed before the complaint was filed.