PECK VS. VALLEY HOSP. MED. CTR.
Citation2017 NV 108
Date Filed2017-12-28
Docket68664
Cited0 times
StatusPublished
Full Opinion (plain_text)
133 Nev., Advance Opinion( Of'
IN THE SUPREME COURT OF THE STATE OF NEVADA
FRANK MILFORD PECK, No. 68664
Appellant,
vs.
DAVID R. ZIPF, M.D.; AND MICHAEL
FILED
D. BARNUM, M.D., DEC 2 8 2017
Respondents.
ETIj 13ROWig
yak
Appeal from a district court judgment on the pleadings in a
medical malpractice action. Eighth Judicial District Court, Clark County;
David B. Barker, Judge.
Affirmed.
Holley, Driggs, Walch, Fine, Wray, Puzey & Thompson and Rachel E. Donn
and Andrea M. Gandara, Las Vegas,
for Appellant Frank Milford Peck.
Alverson Taylor Mortensen & Sanders and David J. Mortensen, Candace C.
Herling, and Brigette E. Foley, Las Vegas,
for Respondent Michael D. Barnum, M.D.
McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, and Jill M. Chase
and Dylan P. Todd, Las Vegas,
for Respondent David R. Zipf, M.D.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
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OPINION
By the Court, HARDESTY, J.:
NRS 41A.071 provides that a district court must dismiss a
plaintiffs medical malpractice complaint if it is not accompanied by an
expert affidavit. However, under NRS 41A.100(1), a plaintiff need not
attach an expert affidavit for a res ipsa loquitur claim. In this appeal, we
consider whether either statutory res ipsa loquitur or the common
knowledge res ipsa loquitur doctrine provides an exception to the expert
affidavit requirement for suit. We also must determine whether NRS
41A.071 is unconstitutional under the Equal Protection Clause or Due
Process Clause, facially, or as applied to inmates or indigent persons.
We reiterate that the enumerated res ipsa loquitur exceptions
in NRS 41A.100 supersede the common knowledge res ipsa loquitur
doctrine. Because appellant's complaint failed to show that any object left
in his body was the result of "surgery," the appellant's complaint did not
satisfy the elements for the statutory exception of res ipsa loquitur. Thus,
appellant's complaint was properly dismissed for lack of an expert affidavit.
We further conclude that NRS 41A.071 does not violate equal protection or
due process.
FACTS AND PROCEDURAL HISTORY
Appellant Frank Peck is, and has at all relevant times been,
incarcerated at High Desert State Prison in Indian Springs, In December
2013, Peck was admitted to Valley Hospital. While at the hospital, Peck
was under the care of respondents, Dr. David R Zipf and Dr. Michael D.
Barnum. In his complaint against the two doctors, Peck claimed that after
his release from the hospital, he discovered a foreign object under the skin
of his left hand.
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In particular, Peck alleged one cause of action for medical
malpractice claiming that Dr. Zipf and Dr. Barnum left a needle in his hand.
In his complaint, Peck cited NRS 41A.100(1)(a) and Fernandez v.
Admirand, 108 Nev. 963, 969, 843 P.2d 354, 358 (1992), in which we
referenced NRS 41A.100(1) and recognized that expert testimony may not
be necessary in medical malpractice cases where the alleged wrongdoing "is
a matter of common knowledge of laymen." While Peck referenced the res
ipsa loquitur doctrine, he did not claim that he had surgery. Doctors Zipf
and Barnum moved for judgment on the pleadings, and the district court
granted their motion, concluding that Peck's complaint did not meet the
requirements of NRS 41A.100(1)(a), and thus, his failure to attach an
affidavit of a medical expert to his complaint under NRS 41A.071 was fatal.
DISCUSSION
On appeal, Peck argues that the district court erred in
dismissing his complaint for lack of an affidavit because his complaint did
not require an affidavit under NRS 41A.100(1)(a). Peck further contends
that even if he did not meet the requirements for a statutory res ipsa
loquitur cause of action, his claim falls under the common knowledge res
ipsa loquitur doctrine at common law. Peck also argues that the affidavit
requirement in NRS 41A.071 violates his equal protection rights and
deprives him of due process. We disagree with Peck's contentions and
affirm the district court.
Standard of review
The district court may grant a motion for judgment on the
pleadings "when material facts are not in dispute and the movant is entitled
to judgment as a matter of law." Bonicamp v. Vazquez, 120 Nev. 377, 379,
91 P.3d 584, 585 (2004). A judgment on the pleadings is reviewed in the
same manner as a dismissal under NRCP 12(b)(5). See Sadler v. Pacificare
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of Nev., Inc., 130 Nev., Adv. Op. 98, 340 P.3d 1264, 1266 (2014). Thus, this
court accepts the factual allegations in the complaint as true and draws all
inferences in favor of the nonmoving party. Buzz Stew, LLC v. City of N.
Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (stating the
standard of review for a motion to dismiss pursuant to NRCP 12(b)(5)).
"[Questions of law, including questions of constitutional interpretation and
statutory construction," are reviewed de novo. Lawrence v. Clark Cty., 127
Nev. 390, 393, 254 P.3d 606, 608 (2011).
NRS 41A.071's affidavit requirement applies to Peck's complaint
Under NRS 41A.071, "a medical malpractice complaint filed
without a supporting medical expert affidavit is void ab initio." Washoe
Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1304, 148 P.3d 790,
794 (2006). However, a medical expert's affidavit is not required if the claim
falls into one of the enumerated res ipsa loquitur exceptions under MRS
41A.100(1). Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204
(2005). Peck did not submit an affidavit to the district court with his
complaint. Thus, his complaint is "void ab initio" unless it falls into one of
the enumerated exceptions to the affidavit requirement. Washoe Med. Ctr.,
122 Nev. at 1304, 148 P.3d at 794; see also NRS 41A.100(1); Szydel, 121
Nev. at 459, 117 P.3d at 204.
NRS 41A.100(1)(a) provides that medical expert evidence is not
required when "[a] foreign substance other than medication or a prosthetic
device was unintentionally left within the body of a patient following
surgery." In his complaint, Peck alleged that a foreign object was left in his
left hand and that relief was warranted under NRS 41A.100(1)(a); however,
he did not describe the medical procedure he had or allege that the object
was left in his body following a surgery. At oral argument, counsel for Peck
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argued that the insertion of an intravenous (IV) needle constitutes surgery
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or, alternatively, discovery was necessary to determine whether a surgery
was taking place at the time the foreign object was allegedly left in Peck's
hand. 1 On the other hand, counsel for Dr. Zipf argued that the insertion of
an IV needle does not constitute surgery, and thus, Peck did not allege a
cause of action under NRS 41A.100(1)(a). The word "surgery" is not defined
in NRS 41A.100 or otherwise in NRS Chapter 41A. See generally NRS
41A.003-.120. Thus, we must determine what the word "surgery" means in
NRS 41A.100(1)(a).
This court reviews issues of statutory construction de novo.
Sonia F. v. Eighth Judicial Dist. Court, 125 Nev. 495, 499, 215 P.3d 705,
707 (2009). Where a statute's plain language is clear, this court will not
look beyond the plain language. Id. However, where a term in a statute is
not defined, this court will look to its plain and ordinary meaning. Jones v.
'In Baxter v. Dignity Health, 131 Nev., Adv. Op. 76, 357 P.3d 927, 928,
931 (2015), we held that a complaint was not void for lack of a physically
attached medical expert affidavit where that affidavit was filed the day
after the complaint, and the complaint incorporated by reference the pre-
existing affidavit. At no time did Peck inform the district court that he had
obtained an affidavit, nor did Peck incorporate by reference a medical expert
affidavit in his complaint. Rather, Peck filed in this court a medical expert
affidavit from a radiologist technician in which the radiologist technician
only stated that the foreign object in Peck's hand may not appear on an x-
ray. Unlike the factual circumstances that led to our holding in Baxter,
Peck obtained this affidavit after the district court dismissed Peck's
complaint and while he was pursuing this appeal. We note that Peck
included his medical records with his opposition to the motion for judgment
on the pleadings. The medical records indicate that Peck had a lumbar
puncture, which demonstrated that he had viral meningitis. While in the
hospital, Peck "went into an acute respiratory failure, requiring intubation
and mechanical ventilation." Peck never argued that these medical
procedures were "operative measures" or constituted "surgery" as required
under NRS 41A.100.
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Nev., State Bd. of Med. Exam'rs, 131 Nev., Adv. Op. 4, 342 P.3d 50, 52
(2015). Black's Law Dictionary defines "surgery" as "that branch of medical
science which treats of mechanical or operative measures for healing
diseases, deformities, disorders, or injuries." Surgery, Black's Law
Dictionary (6th ed. 1990). NAC 449.9743, a regulation pertaining to the
operation and licensing of surgical centers, defines "surgery" as "the
treatment of a human being by operative methods." These definitions
support Doctors Zipf and Barnum's contention that the word "surgery" in
NRS 41A.100(1)(a) does not include the insertion of an IV needle because
that is not an "operative measure." Thus, Peck's medical malpractice claim
required a medical expert's affidavit. See Washoe Med. Ctr., 122 Nev. at
1304, 148 P.3d at 794.
Peck argues that NRS 41A.100(1) can be read separately from
subsection (a) so that an allegation of surgery is not required. However, in
reading the statute as a whole, NRS 41A.100 clearly, states that an affidavit
is not required "in any one or more of the following circumstances . . . ," and
those enumerated res ipsa loquitur exceptions are listed in subsections
(1)(a)-(e), one of which being that an object was left in the body following
surgery. Moreover, Peck specifically identified this exception in NRS
41A.100(1)(a) in his complaint and did not reference any of the other
enumerated exceptions. Accordingly, NRS 41A.100 requires that an expert
affidavit be filed with Peck's complaint.
NRS 41A.100 codified and replaced the common law res ipsa loquitur
doctrine
Peck argues that a medical expert affidavit was not required
under the common law res ipsa loquitur doctrine, and thus, the district
court erred in dismissing his complaint. At oral argument, counsel for Peck
argued that Peck stated a claim for common law res ipsa loquitur because
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he cited Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992), which
Peck's counsel argued is the case that created the common law res ipsa
loquitur doctrine. However, while we stated in Fernandez that expert
testimony is necessary in a medical malpractice case "unless the propriety
of the treatment, or the lack of it, is a matter of common knowledge of
laymen," we specifically referenced NRS 41A.100(1) for this assertion. 108
Nev. at 969, 843 P.2d at 358. Further, we have held that, in drafting NRS
41A.100(1), the Legislature specifically codified the res ipsa loquitur
doctrine and determined that in those specific enumerated circumstances,
a medical affidavit is not required. Johnson v. Egtedar, 112 Nev. 428, 433,
915 P.2d 271, 274 (1996) ("We believe the [I..] egislature intended NRS
41A.100 to replace, rather than supplement, the classic res ipsa loquitur
formulation in medical malpractice cases where it is factually applicable.");
see also Szydel, 121 Nev. at 459-60, 117 P.3d at 204-05 (stating that any res
ipsa claim filed without an expert affidavit must meet the prima facie
requirements for a res ipsa loquitur case as set forth in NRS 41A.100(1)(a)-
(e)); Born v. Eisenman, 114 Nev. 854, 859, 962 P.2d 1227, 1230 (1998)
("[T]he more traditional res ipsa loquitur doctrine has been replaced by NRS
41A.100."). Had the Legislature intended to allow medical malpractice
claims to be filed without an expert affidavit in circumstances where a
foreign object was left in the body during a procedure other than surgery,
the Legislature would have codified those situations.
Moreover, we "avoid construing statutes so that any provision
or clause is rendered meaningless." In re Estate of Thomas, 116 Nev. 492,
495, 998 P.2d 560, 562 (2000). Interpreting NRS 41A.100(1) as merely
supplementing the common law and allowing claims where a foreign object
is left in the body in a procedure other than surgery would render NRS
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41A.100(1)(a) meaningless. Therefore, "there is a fair repugnance between
the common law and the statute, and both cannot be carried into effect." W.
Indies, Inc. v. First Nat'l Bank of Nev., 67 Nev. 13, 32, 214 P.2d 144, 153
(1950) (internal quotation marks omitted).
NRS 41A.071 does not violate equal protection or due process
Peck argues that the medical expert affidavit requirement
violates the Equal Protection and Due Process Clauses of the Nevada
and federal Constitutions. Specifically, in his opening brief, Peck
argues that NRS 41A.071 (1) "creates an unconstitutional distinction
between medical malpractice plaintiffs and other negligence plaintiffs,"
(2) unconstitutionally prevents indigent plaintiffs from accessing the courts,
and (3) unconstitutionally prevents inmates from prosecuting medical
malpractice claims. Doctors Zipf and Barnum disagree.
"Statutes are presumed to be valid, and the challenger bears
the burden of showing that a statute is unconstitutional. In order to meet
that burden, the challenger must make a clear showing of invalidity." Tam
v. Eighth Judicial Dist. Court, 131 Nev., Adv. Op. 80, 358 P.3d 234, 237-38
(2015) (internal quotation marks omitted). "When the law. . . does not
implicate a suspect class or fundamental right, it will be upheld as long as
it is rationally related to a legitimate government interest." Zamora v.
Price, 125 Nev. 388, 395, 213 P.3d 490, 495 (2009).
No unconstitutional distinction exists
"[TRie right of malpractice plaintiffs to sue for damages caused
by medical professionals does not involve a fundamental constitutional
right." Tam, 131 Nev., Adv. Op. 80, 358 P.3d at 239 (alteration in original)
(quoting Barrett v. Baird, 111 Nev. 1496, 1507, 908 P.2d 689, 697 (1995),
overruled on other grounds by Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970,
980 (2008)). Nor does Peck argue that a suspect class is implicated. Thus,
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NRS 41A.071 "need only be rationally related to a legitimate governmental
purpose" to withstand a challenge based on equal protection or due process.
Id.; see also Arata v. Faubion, 123 Nev. 153, 159, 161 P.3d 244, 248 (2007).
"While the legislative history is helpful to understanding the purpose of
enacting the statute, this court is not limited to the reasons expressed by
the Legislature; rather, if any rational basis exists, or can be hypothesized,
then the statute is constitutional." Tam, 131 Nev., Adv. Op. 80, 358 P.3d at
239 n.5.
"NRS 41A.071 was enacted in 2002 as part of a special
legislative session that was called to address a medical malpractice
insurance crisis in Nevada." Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334
P.3d 402, 405 (2014). Doctors were concerned that insurance providers were
quoting medical malpractice insurance premiums at drastically increasing
rates. Id. By enacting NRS Chapter 41A, the Legislature intended "to deter
baseless medical malpractice litigation, fast track medical malpractice
cases, and encourage doctors to practice in Nevada while also respecting the
injured plaintiffns right to litigate his or her case and receive full
compensation for his or her injuries." Id. at 405-06.
A previous version of NRS Chapter 41A required that medical
malpractice complaints be heard by a screening panel prior to being filed in
the district court, and the panel's findings were admissible in the district
court proceedings Borger v. Eighth Judicial Dist. Court, 120 Nev. 1021,
1023, 102 P.3d 600, 602 (2004). In Barrett v. Baird, we determined that the
screening panel provision was "rationally related to a legitimate
governmental interest and [did] not violate equal protection." 111 Nev. at
1510-11, 908 P.2d at 699. The governmental interests related to the
screening panel provision were "to minimize frivolous suits against doctors,
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to encourage settlement, and to lower the cost of malpractice premiums and
health care." Id. at 1508, 908 P.2d at 697 (internal quotation marks
omitted).
The Legislature replaced the screening panel provision with the
medical expert affidavit requirement. Borger, 120 Nev. at 1026, 102 P.3d
at 604 ("[T]he expert affidavit requirements of NRS 41A.071 are designed
to account for the abolition of the screening panels and to ensure that
parties file malpractice cases in good faith, i.e., to prevent the filing of
frivolous lawsuits."). The Legislature's intent in requiring medical expert
affidavits was to "lower costs, reduce frivolous lawsuits, and ensure that
medical malpractice actions are filed in good faith based upon competent
expert medical opinion." Washoe Med. Ctr., 122 Nev. at 1304, 148 P.3d at
794 (internal quotation marks omitted). "According to NRS 41A.071's
legislative history, the requirement that a complaint be filed with a medical
expert affidavit was designed to streamline and expedite medical
malpractice cases and lower overall costs, and the Legislature was
concerned with strengthening the requirements for expert witnesses." Id.
Under the former screening panel provision, the plaintiff could still proceed
to trial if the panel concluded that the medical provider was not negligent.
See Borger, 120 Nev. at 1023, 102 P.3d at 602. Under the medical expert
affidavit requirement, however, the lack of an affidavit requires dismissal
of the complaint. See Washoe Med. Ctr., 122 Nev. at 1304, 148 P.3d at 794.
We conclude that this change does not impact our analysis
under rational basis. As our prior decisions in Barrett, Washoe Medical
Center, and Zohar establish, the Legislature's regulation of Nevada's health
care system through the medical expert affidavit requirement in NRS
41A.071 is rationally related to the legitimate governmental interest of
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managing what was considered a "medical malpractice insurance crisis in
Nevada." Zohar, 130 Nev., Adv. Op. 74, 334 P.3d at 405.
Peck urges this court to adopt the analysis of Zeier v. Zimmer,
Inc., 152 P.3d 861, 868 (Okla. 2006), in which the Supreme Court of
Oklahoma held unconstitutional a similar affidavit requirement because
the statute distinguished between medical malpractice plaintiffs and other
negligence plaintiffs. However, the court invalidated the statute based on
a unique provision of the Oklahoma Constitution that prohibits "special
laws regulating the practice or jurisdiction of, or changing the rules of
evidence in judicial proceedings or inquiry before the courts." Id. at 868-69.
Moreover, Peck does not argue that medical malpractice plaintiffs are a
suspect class or that there is a fundamental right to medical malpractice
damages. See Barrett, 111 Nev. at 1509, 908 P.2d at 698. Accordingly, we
are not persuaded by Zeier.
Court access remains reasonably unfettered
Peck relies on our decision in Barnes v. Eighth Judicial District
Court, 103 Nev. 679, 748 P.2d 483 (1987), for the proposition that NRS
41A.071 is overbroad and unconstitutionally restricts an indigent or
incarcerated person's access to the courts by imposing a monetary barrier.
In Barnes, three inmates• attempted to file complaints against their
attorneys for legal malpractice. 103 Nev. at 680, 748 P.2d at 484. The
inmates filed motions under NRS 12.015(1), which allowed indigent
plaintiffs to proceed without paying court costs, but the district court
"denied the motions to proceed in forma pauperis because they were not
supported by the affidavit of an attorney stating that the complaints had
merit as required by NRS 12.015(1)." Id. at 680, 748 P.2d at 485.
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The purpose of the attorney affidavit requirement was "to spare
the state the expense of financing frivolous lawsuits filed by indigent
persons." Id. at 684, 748 P.2d at 487. We determined that the statute also
may have worked "to screen out meritorious actions that would otherwise
be filed by persons who [could not] afford, or [were] otherwise precluded
from obtaining, the required certificate of an attorney." Id. We further
explained that "the classification• scheme created by the statute [was]
arbitrary and irrational" and "too broad in its sweep." Id. Thus, we
determined that "by conditioning the waiver of filing fees on an indigent's
ability to obtain the certificate of an attorney that the indigent's cause of
action or defense has merit, NRS 12.015 violates the equal protection
guarantees contained in the Nevada and United States Constitutions." Id.
Barnes is distinguishable from Peck's case because NRS 41A.071
requires a medical expert affidavit for medical malpractice suits filed by
anyone—not just indigent or incarcerated persons—whereas NRS 12.015
only required an affidavit for indigent plaintiffs. Moreover, "although an
indigent has a right of reasonable access to the courts, the right of access is
not unrestricted." Id. at 682, 748 P.2d at 486. While an affidavit is required
to pursue medical malpractice claims, the lack of an affidavit does not
preclude indigent plaintiffs specifically from accessing the courts in general.
Thus, NRS 41A.071 does not create a classification scheme that violates
equal protection.
Inmates are not unconstitutionally precluded from pursuing medical
malpractice claims
Peck also argues that the affidavit requirement is
unconstitutional under Boddie v. Connecticut, 401 U.S. 371 (1971). In that
case, the Supreme Court determined that the imposition of court costs to
indigent plaintiffs seeking divorces violated equal protection. However, the
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Court concluded that because of the importance of the "marriage
relationship in this society's hierarchy of values and the concomitant state
monopolization of the means for legally dissolving this relationship, due
process does prohibit a State from denying, solely because of inability to
pay, access to its courts to individuals who seek judicial dissolution of their
marriages." Boddie, 401 U.S. at 374. Here, medical malpractice damages
do not share the same hierarchy in value in our society as marriage does,
and indigent or incarcerated individuals are not precluded from obtaining
an expert opinion solely on the basis of their indigence or incarceration.
Moreover, the state is not imposing a court cost or fee under NRS 41A.071.
Accordingly, Peck's reliance on Boddie is misplaced.
Peck further relies on Bounds v. Smith, 430 U.S. 817 (1977), for
the notion that prisoners have a constitutional right of access to the courts.
We agree and have held the same. See Miller v. Evans, 108 Nev. 372, 374,
832 P.2d 786, 787 (1992). However, this right does not include unfettered
access to pursue all civil actions. In Lewis v. Casey, the Supreme Court
clarified Bounds and explained that the right of access to the courts requires
providing resources "that the inmates need in order to attack their
sentences, directly or collaterally, and in order to challenge the conditions
of their confinement. Impairment of any other litigating capacity is simply
one of the incidental (and perfectly constitutional) consequences of
conviction and incarceration." 518 U.S. 343, 355 (1996). Moreover, inmates
are not a suspect class, and there is no fundamental right to medical
malpractice damages. See Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir.
1999) (noting that inmates are not a suspect class); Tam, 131 Nev., Adv. Op.
80, 358 P.3d at 239 (determining that there is no fundamental right to
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medical malpractice damages). Thus, NRS 41A.071 need only meet rational
basis, which we conclude it does.
Other jurisdictions with expert affidavit requirements in
medical malpractice actions agree that inmates and indigent plaintiffs are
not excused from the affidavit requirements. See Perry v. Stanley, 83
S.W.3d 819, 825 (Tex. App. 2002) (holding that the requirement to file a
medical affidavit with a complaint can properly be applied to inmates
because they bear the burden of proof at trial, which requires expert
testimony); Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex. App. 2001) (holding
that a statute requiring an expert report to be filed within 180 days of an
inmate's filing of a medical malpractice suit did not violate the open courts
provision of the Texas Constitution, despite the inmate's arguments that he
could not interview physicians from prison and did not have enough money
to obtain the reports); see also O'Hanrahan v. Moore, 731 So. 2d 95, 96-97
(Fla. Dist. Ct. App. 1999) (rejecting a prisoner's request to declare
unconstitutional a pre-suit requirement for a medical expert opinion to
initiate his medical malpractice action); Ledger v. Ohio Dep't of Rehab. &
Corr., 609 N.E.2d 590, 593-95 (Ohio Ct. App. 1992) (holding that an inmate's
medical malpractice action was properly dismissed with prejudice for
failure to meet that state's statutory affidavit requirement). Notably, Peck
was able to obtain a medical expert affidavit after submitting his complaint,
which demonstrates that his indigence and incarceration did not prevent
him from acquiring the requisite documents needed for a medical
malpractice claim.
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Accordingly, we conclude that NRS 41A.071 is rationally
related to a legitimate governmental interest and does not violate equal
protection or due process requirements.
CONCLUSION
Based on the foregoing, we affirm the district court's order
granting Doctors Zipf s and Barnum's motion for judgment on the pleadings
because Peck failed to include a medical expert affidavit with his medical
malpractice complaint.
J.
ncur:
Parraguirre
C-1--C. J.
Stiglich
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