SEGOVIA, PA-C VS. DIST. CT. (DUDA)
Citation2017 NV 112
Date Filed2017-12-28
Docket72416
Cited0 times
StatusPublished
Full Opinion (html_with_citations)
133 Nev., Advance Opinion I IZ.
IN THE SUPREME COURT OF THE STATE OF NEVADA
JOCELYN SEGOVIA, PA-C, No. 72416
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT FILED
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF DEC 2. 8 2017
CLARK; AND THE HONORABLE BROWN
cciii
MICHELLE LEAVITT, DISTRICT
JUDGE,
Respondents,
and
MADDEN DUDA, A MINOR, BY AND
THROUGH JOVAN DUDA, HIS
NATURAL FATHER AND GUARDIAN;
AUTUMN MATESI, INDIVIDUALLY
AND AS AN HEIR TO THE ESTATE OF
MARY ANN HAASE; AND ROBERT
ANSARA, AS SPECIAL
ADMINISTRATOR OF THE ESTATE
OF MARY ANN HAASE,
Real Parties in Interest.
Original petition for a writ of prohibition or, in the alternative,
mandamus challenging a district court order in a medical malpractice
action.
Petition denied.
Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg, Joel D.
Henriod, Abraham G. Smith, and Erik J. Foley, Las Vegas; John H. Cotton
& Associates and John H. Cotton and Katherine L. Turpen, Las Vegas,
for Petitioner.
Murdock & Associates, Chtd., and Robert E. Murdock, Las Vegas; Eckley
M. Keach, Chtd., and Eckley M. Keach, Las Vegas,
for Real Party in Interest Madden Duda.
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Seegmiller & Associates and Clark Seegnfiller, Las Vegas,
for Real Parties in Interest Autumn Matesi and Robert Ansara, as Special
Administrator of the Estate of Mary Ann Haase.
BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
OPINION
By the Court, HARDESTY, J.:
NRS Chapter 41A.035 limits the liability of "provided& of
health care" by capping their damages in medical malpractice actions to
$350,000 and abrogating joint and several liability. The 2015 Legislature
amended NRS 41A.017 to add physician assistants to the definition of
"fplrovider of health care." Petitioner Jocelyn Segovia, a physician
assistant, is a defendant in a medical malpractice action accruing before the
2015 amendments were enacted. She petitions this court to determine
whether the amendment clarified the existing definition of a provider of
health care, so as to apply retroactively, or whether the amended definition
operates prospectively only. Because the 2015 amendments expressly apply
"to a cause of action that accrues on or after the effective date of this act,"
see 2015 Nev. Stat., ch. 439, § 11, at 2529; S.B. 292, 78th Leg. (Nev. 2015),
and Segovia fails to rebut the presumption that statutory amendments are
applied prospectively, we deny her writ petition.
FACTS AND PROCEDURAL HISTORY
In February 2012, Mary Haase, mother of real party in interest
Madden Duda, saw Dr. George Michael Elkanich regarding pain she was
experiencing in her leg and back. Dr. Elkanich diagnosed Haase with
bilateral lower extremity radiculopathy and recommended surgery. Dr.
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Elkanich chose physician assistant Jocelyn Segovia to assist in the
procedure. The surgery took place on March 5, 2012, at Valley Hospital.
During the surgery, Dr. Elkanich and/or Segovia allegedly tore, sliced, or
punctured Haase's aorta, causing substantial blood loss and a drop in blood
pressure. According to the coroner's report, Haase died mid-surgery from a
laceration to her aorta and the ensuing blood loss.
Madden Duda, along with real parties in interest Autumn
Matesi and Robert Ansara, as special administrator of Haase's Estate
(collectively, Duda), subsequently initiated a medical malpractice action.
Duda moved for summary judgment as to Jocelyn Segovia. The motion
sought to have the district court determine that Segovia was not a
"[p] rovider of health care" per NRS 41A.017, and thus, not entitled to NRS
Chapter 41A's abrogation of joint and several liability or the damages cap
of $350,000. The district court granted Duda's motion, finding that Segovia
was not entitled to the protections of NRS Chapter 41A because the
language of NRS 41A.017 in effect at the time of the surgery did not cover
physician assistants, and the subsequent 2015 amendment to the statute
adding physician assistants only applies prospectively. Segovia then
petitioned this court to answer the question of whether physician assistants
are entitled to the statutory protections of NRS Chapter 41A for causes of
action accruing before the effective date of the 2015 amendments.
DISCUSSION
Writ relief
Segovia seeks relief in the form of a writ of prohibition or, in the
alternative, mandamus. "This court has original jurisdiction to issue writs
of mandamus and prohibition." MountainView Hosp., Inc. v. Eighth
Judicial Dist. Court, 128 Nev. 180, 184,273 P.3d 861, 864
(2012); Nev.
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Const. art. 6, § 4. "A writ of prohibition is appropriate when a district court
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acts without or in excess of its jurisdiction." Cote H. v. Eighth Judicial Dist.
Court, 124 Nev. 36, 39,175 P.3d 906, 907
(2008). "A writ of mandamus is
available to compel the performance of an act which the law requires as a
duty resulting from an office, trust or station, or to control a manifest abuse
or an arbitrary or capricious exercise of discretion." Id. at 39,175 P.3d at 907-08
(alteration, footnote, and internal quotation marks omitted).
Because a writ petition seeks an extraordinary remedy, this
court has discretion whether to consider such a petition. Cheung v. Eighth
Judicial Dist. Court, 121 Nev. 867, 869,124 P.3d 550, 552
(2005).
Extraordinary writ relief may be available where there is no "plain, speedy
and adequate remedy in the ordinary course of law." NRS 34.170; NRS
34.330; Inel Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193,
197,179 P.3d 556, 558
(2008). However, despite an available legal remedy,
this court may still entertain a petition for writ "relief where the
circumstances reveal urgency and strong necessity." Barngrover v. Fourth
Judicial Dist. Court, 115 Nev. 104, 111,979 P.2d 216, 220
(1999).
Segovia argues that resolution of this writ petition will promote
judicial economy because most of the defendants in the underlying action
have already settled, and determining whether Segovia is entitled to a
damages cap will allow her to make informed settlement decisions and
possibly avoid litigation altogether. We entertain the writ petition, treating
it as one for mandamus, because Segovia seeks to compel the district court
to retroactively apply the current version of NRS Chapter 41A, and
conflicting statements exist in a published opinion and unpublished order
of this court concerning that issue. "Questions of statutory interpretation
are reviewed de novo." Dykema v. Del Webb Cmtys., Inc., 132 Nev., Adv.
Op. 82, 385 P.3d 977, 979 (2016).
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The 2015 amendment to NEW 41A.017 does not apply retroactively
The "Keep our Doctors in Nevada" (KODIN) initiative was
approved by Nevada voters in 2004, leading to the enactment of statutes
limiting liability for providers of health care. See Nevada Ballot Questions
2004, Nevada Secretary of State, Question No. 3 (effective Nov. 23, 2004);
NRS Chapter 41A. NRS Chapter 41A limits health care provider liability
in two important ways: (1) the amount of noneconomic damages in medical
malpractice suits "must not exceed $350,000, regardless of the number of
plaintiffs, defendants or theories upon which liability [is] based," NRS
41A.035; and (2) joint and several liability is abrogated, making health care
providers liable severally only for the portion of the judgment representing
the percentage of negligence attributable to a specific defendant, NRS
41A.045.
NRS 41A.017 defines the term "[p]rovider of health care." At
the time of the surgery in 2012, NRS 41A.017 read as follows:
"Provider of health care" means a physician
licensed under chapter 630 or 633 of NRS, dentist,
licensed nurse, dispensing optician, optometrist,
registered physical therapist, podiatric physician,
licensed psychologist, chiropractor, doctor of
Oriental medicine, medical laboratory director or
technician, licensed dietitian or a licensed hospital
and its employees.
The 2015 Legislature specifically added physician assistant, as well as a few
other professions, to the definition. The current version of NRS 41A.017
reads in this manner:
"Provider of health care" means a physician
licensed pursuant to chapter 630 or 633 of NRS,
physician assistant, dentist, licensed nurse,
dispensing optician, optometrist, registered
physical therapist, podiatric physician, licensed
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psychologist, chiropractor, doctor of Oriental
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medicine, medical laboratory director or technician,
licensed dietitian or a licensed hospital, clinic,
surgery center, physicians' professional corporation
or group practice that employs any such person and
its employees.
(Emphasis added.) The central issue in this petition is whether the 2015
amendment adding in "physician assistant" was meant to clarify the
original intent of the previous version of the statute and, thus, covers
Segovia's alleged malpractice from 2012, or whether it is an addition, meant
to be applied only prospectively and, thus, does not afford the statutory
protections to Segovia.
Segovia argues that the 2015 amendment was meant to clarify
the intent of the original statute, rather than revise it, and Nevada law
requires statutory amendments that clarify existing statutes to be applied
retroactively. Segovia points to the legislative history of the 2015
amendments, citing John Cotton's testimony before the Senate Committee
that the draft changes to the statute reestablish the Legislature's intent
from the original statute. See Hearing on S.B. 292 Before the Senate
Judiciary Comm., 78th Leg. (Nev., March 26, 2015) (testimony of John
Cotton, KODIN). Moreover, Segovia asserts that this court already ruled
that the 2015 amendment to NRS 41A.017 clarified rather than changed
the law in the unpublished order in Zhang v. Barnes, Docket No. 67219
(Order Affirming in Part, Reversing in Part, and Remanding, Sept. 12,
2016).
Duda contends that the Legislature specifically declared the
2015 amendment to NRS 41A.017 to be prospective, because section 11 of
S.B. 292 states, "The amendatory provisions of this act apply to a cause of
action that accrues on or after the effective date of this act." 2015 Nev. Stat.,
ch. 439, § 11, at 2529. Duda further argues that, notwithstanding section
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11's specific language, in general there is a strong presumption that
amendments to statutes are to be prospective in application and that
Segovia's arguments do not rebut this strong presumption. Duda cites to
legislative history testimony from KODIN representative Lesley Pittman
that physician assistants were added to the statute to address the way
health care delivery has changed and morphed over the years, and thus, the
amendment was not a clarification of the original statute. See Hearing on
S.B. 292 Before the Senate Judiciary Comm., 78th Leg. (Nev., May 26, 2015)
(testimony of Lesley Pittman, KODIN). Duda argues that Zhang is
distinguishable from the instant case because even though it "did state that
the 2015 amendment 'clarified' the law, it did not state such on a wholesale
level."
Unpublished orders do not establish mandatory precedent, but
parties may cite to unpublished dispositions issued after January 1, 2016,
for their persuasive value, if any. NRAP 36(c)(2), (3). The portion of Zhang
that references a "clarification" of the statute states this:
In 2015, in fact, the Legislature amended the
definition of "provider of healthcare" in NRS
41A.017 to expressly so state. This amendment did
not change but clarified the law, stating in express
statutory terms the result reached on the issue of
the interplay between NRS Chapters 40 and 89 in
Fierle.
Zhang, Docket No. 67219, at 13 (footnote omitted). NRS Chapter 89 deals
with professional entities and associations, and the Zhang decision required
NRS Chapters 41A and 89 to be read together in harmony so that
professional entities, when vicariously liable for a doctor's actions, are also
protected by the $350,000 damage cap. Id. Here, Segovia identifies no other
NRS chapters regarding "physician assistants" that must be read in
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harmony with NRS 41A.017. The Zhang decision does not necessarily mean
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that every part of the 2015 amendments clarified the original statute's
intent and applies retroactively, despite the way Segovia characterizes the
holding.
In Humboldt General Hospital v. Sixth Judicial District Court,
we dealt with another facet of NRS Chapter 41A regarding the requirement
that medical malpractice actions be accompanied by a medical expert
affidavit. 132 Nev., Adv. Op. 53, 376 P.3d 167 (2016). We declined to
retroactively apply the amendments, stating that:
Many statutes in NRS Chapter 41A
were amended during the 2015 legislative
session. . . . The amended language does not apply
here because the amendments became effective
after the district court entered its order in this
matter, and our reference to the statutes in this
section are to those in effect at the time of the cause
of action.
Id. at 170 n 2 Like Zhang, Humboldt does not deal with the addition of
"physician assistants" to the statute, but in a published opinion, the
Humboldt court declined to apply the 2015 amendments retroactively.
Statutory amendments that clarify the intent of a previous
statute generally apply retroactively. Fernandez v. Fernandez, 126 Nev. 28,
35 n.6, 222 P.3d 1031, 1035 n.6 (2010). However, statutes are otherwise
presumed to operate prospectively "unless they are so strong, clear and
imperative that they can have no other meaning or unless the intent of the
[L]egislature cannot be otherwise satisfied." Holloway v. Barrett, 87 Nev.
385, 390,487 P.2d 501, 504
(1971). "Courts will not apply statutes
retrospectively unless the statute clearly expresses a legislative intent that
they do so." Allstate Ins. Co. v. Furgerson, 104 Nev. 772, 776,766 P.2d 904, 907
(1988).
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"When interpreting a statute, we first determine whether its
language is ambiguous. If the language is clear and unambiguous, we do
not look beyond its plain meaning. . . ." Stock meier v. Psychological Review
Panel, 122 Nev. 534, 539,135 P.3d 807, 810
(2006) (footnote omitted). "A
statute's language is ambiguous when it is capable of more than one
reasonable interpretation." Orion Portfolio Servs. 2, LLC v. Cty. of Clark ex
rel. Univ. Med. Ctr. of S. Nev., 126 Nev. 397, 402,245 P.3d 527, 531
(2010).
We do not find the pre-amendment version of NRS 41A.017 to be ambiguous
on its face. It defines the term "provider of health care" by listing the
specific professional titles that the Legislature considers to be providers of
health care, none of which have been challenged by Segovia as ambiguous
in meaning. The legislative history contains testimony that supports a
conclusion that the amendment was both a clarification and an addition to
the original version of the statute. However, considering the contradicting
testimony in the legislative history, we conclude that Mr. Cotton's
testimony alone does not rebut the "strong presumption against
retroactivity to statutes that affect vested rights where the Legislature has
not explicitly provided for retroactivity." Badger v. Eighth Judicial Dist.
Court, 132 Nev., Adv. Op. 39, 373 P.3d 89, 94 n.1 (2016). The statute here,
as amended, explicitly provides for prospective applications.
We deny Segovia's writ petition because the district court
correctly found that the 2015 amendments adding physician assistants to
NRS 41A.017 do not apply retroactively. Not only does the statutory
amendment face a strong presumption of prospectivity, but the text of the
senate bill itself contains language in section 11 specifically stating that
"Et] he amendatory provisions of this act apply to a cause of action that
accrues on or after the effective date of this act." 2015 Nev. Stat., ch. 439, §
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11, at 2529; S.B. 292, 78th Leg. (Nev. 2015). Accordingly, we hold that at
the time of the 2012 surgery, physician assistants were not "[p]rovider[s] of
health care" under NRS 41A.017. 1 We therefore deny Segovia's writ
petition.
/ "tar J.
Hardesty
We concur:
J.
Parraguirre
Stiglich
1 Based on our disposition, we decline to address Segovia's arguments
concerning agency law and public policy. Agency law was not argued in the
district court and was raised for the first time in the writ petition. See
Valley Health Sys., LLC v. Eighth Judicial Dist. Court, 127 Nev. 167, 173,
252 P.3d 676, 679 (2011) (holding that it is an "inefficient use of judicial
resources" to allow parties to make one set of arguments before a lower court
and switch to alternative arguments later). Additionally, Segovia's policy
arguments fail to overcome the established presumption of prospective
statutory application.
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