Engelson v. Dignity Health
Citation139 Nev. Adv. Op. No. 58
Date Filed2023-12-28
Docket84978-COA
Cited0 times
StatusPublished
Full Opinion (plain_text)
j39 Nev., Advance Opinion 58
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
GINA ENGELSON, AS SPECIAL No, 84978-COA
ADMINISTRATOR OF THE ESTATE
OF LENORE MEYER, DECEASED,
Appellant,
vs.
DIGNITY HEALTH, A FOREIGN MED
NONPROFIT CORPORATION, D/B/A
ST. ROSE DOMINICAN HOSPITAL-
SIENA CAMPUS; GRAPE HOLDINGS
LLC, A FOREIGN LIMITED LIABILITY C 1EF DEPtIrr' CLERK
COMPANY, D/B/A SAGE CREEK POST-
ACUTE,
Respondents.
Appeal from a district court order granting motions to dismiss
in a professional negligence action. Eighth Judicial District Court, Clark
County; Jessica K. Peterson, Judge.
Reversed and remanded.
Burris & Thomas, LLC, and Steven M. Burris and Gary Myers, Las Vegas,
for Appellant.
Hall Prangle & Schoonveld, LLC, and Kenneth M. Webster and Tyson J.
Dobbs, Las Vegas,
for Respondent Dignity Health.
Hutchison & Steffen, PLLC, and David J. Mortensen and Candace C.
Herling, Las Vegas,
for Respondent Grape Holdings LLC.
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BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
OPINION
By the Court, WESTBROOK, J.:
Complaints for professional negligence must be timely filed
within the applicable statute of limitations period, NRS 41A.097(2), and
must be supported by an affidavit of merit, NRS 41A.071. When a party
suffers an injury or wrongful death caused by professional negligence, NRS
41A.097(2) provides that the statute of limitations begins to run from the
date the plaintiff discovers or should have discovered their legal injury. In
the underlying proceeding, the district court dismissed an estate's
survivorship claims after finding "irrefutable" evidence that the estate and
its special administrator knew or should have known about the relevant
legal injury more than a year before filing the complaint.'
When appellant moved for reconsideration on grounds that the
cornplaint was timely when the claims were construed as wrongful death
claims, the district court denied reconsideration on the basis that her
complaint failed to state a claim for wrongful death. The district court also
found her affidavit of merit was insufficient to support a wrongful death
'For an injury or wrongful death that is alleged to have occurred on
or after October 1, 2002, but before October 1, 2023, a plaintiff must file
their professional negligence claim within one year after the plaintiff
discovers or should have discovered the legal injury. NRS 41A.097(2).
Recent amendments to NRS 41A.097 extended the statute of limitations for
professional negligence claims to two years after the plaintiff discovers or
should have discovered the injury, but only for claims arising on or after
October 1, 2023. See NRS 41A.097(2)-(3) (2023). As the claims in this case
arose before October 1, 2023, these amendments do not affect our analysis.
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claim because it did not establish that professional negligence caused the
wrongful death.
We conclude that the district court erred when it dismissed
appellant's complaint as time-barred. In doing so, we take this opportunity
to clarify that an affidavit of merit need not opine as to the element of
causation to support a professional negligence-based wrongful death claim
under NRS 41A.071. Therefore, we reverse and remand for further
p roceedings.
FACTS AND PROCEDURAL HISTORY
85-year-old Lenore Meyer was admitted to St. Rose Dominican
Hospital-Siena Carnpus (St. Rose-Siena) in late June 2020. During her stay
at St. Rose-Siena, Meyer received treatment for a urinary tract infection,
blocked bowels, and a possible Clostridium difficile (C-diff) infection.
On or about July 28, 2020, Meyer transferred to a skilled
nursing facility, Sage Creek Post-Acute (Sage Creek), to receive post-
treatment rehabilitation. Upon her admission, Sage Creek documented
that Meyer had a stage 3 decubitis ulcer, or bedsore, in her sacral region.
Because of COVID-19 pandemic protocols, Meyer's family was
unable to visit her at Sage Creek. However, during this time, Meyer
apparently called members of her family to report that she was receiving
horrible treatment, which included failing to assist her when she needed to
go to the bathroom and leaving her to lie in bed in her own feces. Meyer's
family reportedly made numerous phone calls to voice their concerns to the
charge nurse and nurse manager. Meyer remained at Sage Creek for
approximately two weeks before returning to St. Rose-Siena with a
recurrence of C-diff and possible sepsis.
When Meyer was readmitted to St. Rose-Siena on August 12,
the hospital documented that Meyer's sacral bedsore was now "huge," "down
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to the bone," unstageable, and infected. Meyer remained at St. Rose-Siena
for almost a month, until the hospital discharged her on September 4.
However, just days later, on September 8, Meyer returned to the hospital
due to weakness and altered mental status. At that point, an infectious
disease specialist diagnosed Meyer with sepsis, colitis, and pneumonia, and
again noted the infected sacral bedsore. On September 10, St. Rose-Siena
discharged Meyer to home hospice, where she died four days later.
Exactly one year after Meyer's death, on September 14, 2021.
Meyer's daughter Gina Engelson—as special administrator of Meyer's
estate—filed a professional negligence complaint against St. Rose-Siena
and Sage Creek.2 Engelson alleged that the nursing care provided by St.
Rose-Siena and Sage Creek fell below the standard of care in more than a
dozen ways, which included negligence in "[f]ail[ing] to timely and
adequately treat skin lesions in order to prevent a preexisting ulcer from
getting worse." Engelson alleged that as a "direct and proximate result" of
negligence by St. Rose-Siena and Sage Creek, Meyer was "caused to suffer
serious bodily injury, including worsened pressure ulcer wounds, infection
and great pain of rnind and body, loss of a chance of a better outcome, and
contributed to her death." Engelson further alleged that, under Nevada
law, Meyer's claims and causes of action "survive[d] her death and [could]
be prosecuted by the administrator of [her] [e]state." Engelson also alleged
that St. Rose-Siena and Sage Creek were "vicariously responsible under the
doctrine of respondeat superior . . . for the injuries and death" of Meyer.
2 Engelson's complaint also alleged negligent hiring, training,
supervision, and retention, as well as corporate negligence, and further
requested punitive damages.
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Two exhibits were attached to Engelson's complaint: a
"Declaration of Expert" made under penalty of perjury by Debbie Marsh,
R.N., which served as an "affidavit of merit,"3 and an electronic disc
containing the medical records and other documentation relied on by
Marsh. In her affidavit of merit, Marsh explained that she was familiar
with the standard of care for nursing at both hospitals and skilled nursing
facilities. She identified specific nurses at St. Rose-Siena and Sage Creek
who she believed breached the standard of care in their treatment of Meyer
during the sumrner of 2020. And she identified specific acts of negligence
at St. Rose-Siena and Sage Creek that she believed fell below the standard
of nursing care. As to St. Rose-Siena, Marsh opined that the hospital
negligently allowed Meyer's stage 3 pressure ulcer to develop while failing
to document its existence. As to Sage Creek, Marsh opined that its nurses
did not meet the standard of care for the prevention, clinical staging, and
management of Meyer's pressure-induced soft tissue injuries, which
required pressure redistribution, improving skin perfusion, minimizing
excess moisture, and turning Meyer every two hours. Although Marsh
asserted that the acts of negligence by St. Rose-Siena and Sage Creek
"denied Mrs. Meyer a better outcome," she did not offer any opinion that
these acts of professional negligence caused Meyer's death.
3 For purposes of this disposition, we will refer to the Marsh
declaration as an "affidavit of merit" or "affidavit." As the Nevada Supreme
Court recognized in Baxter v. Dignity Health, the affidavit of merit required
by NRS 41A.071 "can take the form of either a 'sworn affidavit or an
unsworn declaration made under penalty of perjury." 131 Nev. 759, 762,
357 P.3d 927, 929 (2015) (quoting Buckwalter v. Eighth Judicial Dist. Court,
126 Nev. 200, 202, 234 P.3d 920, 922 (2010)).
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St. Rose-Siena and Sage Creek moved to dismiss Engelson's
complaint pursuant to NRS 41A.097(2) on the basis that it was filed more
than one year after Engelson and/or Meyer discovered or should have
discovered the legal injury, which they characterized as Meyer's negligently
caused bedsore.4 To establish that Engelson's complaint was time-barred,
St. Rose-Siena and Sage Creek relied on factual statements from Marsh's
affidavit of merit, where Marsh summarized the information that she had
received from Engelson's attorneys based on their interviews with unnamed
members of Meyer's family.
Relying primarily on Marsh's affidavit of merit, St. Rose-Siena
argued that, as ofJuly 28, 2020, Engelson and Meyer were on inquiry notice
of the Meyer estate's negligence claims against the hospital because that
was the date that the stage 3 sacral ulcer was first documented in Meyer's
medical records at Sage Creek. Likewise, Sage Creek relied on the Marsh
affidavit to argue that Engelson and/or Meyer were on inquiry notice of the
estate's potential negligence claims on or before Meyer's discharge from
Sage Creek because, after Sage Creek documented the bedsore, Meyer had
spoken by phone with her family regarding the allegedly substandard care
she was receiving while at Sage Creek.
The district court agreed, finding that Engelson's complaint and
the accompanying affidavit of merit established "irrefutable evidence that
Plaintiff was aware of her injury on or around August 11, 2020 at the
1n its motion to dismiss, Sage Creek conceded that Marsh's affidavit
4
appeaded] to support" her allegations of professional negligence for
purposes of NRS 41A.071(1).
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latest."5 Because Engelson's complaint was filed more than a year after that
date, the court entered an order dismissing Engelson's complaint as time-
barred.
Thereafter, Engelson moved for reconsideration, arguing for the
first time that, because her complaint alleged wrongful death claims, it was
timely filed within one year of her discovery of that legal injury: Meyer's
wrongful death. In addition, Engelson reargued that Sage Creek was not a
"[p]rovider of health care" as defined in NRS 41A.017 and, therefore, the
one-year statute of limitations did not apply to Sage Creek. The district
court rejected both arguments.
In its order denying reconsideration, the district court
concl uded that Engelson's complaint failed to state a wrongful death claim
and that her affidavit of merit did not satisfy the requirements of NRS
41A.071 because it did not support the allegation that professional
negligence caused Meyer's death. Additionally, the district court concluded
that, regardless of whether Sage Creek was, itself, a "provider of health
care" as defined in NRS 41A.017, Engelson's claims against Sage Creek
were inextricably linked to the underlying alleged professional negligence
of its nurses, and therefore, her claims were subject to the requirements of
NRS Chapter 41A. Engelson appeals.
5When Engelson asked the district court how it determined the
accrual date of August 11, 2020, the court explained it was "[b]ased on the
statements made by [St. Rose-Siena's counsel] that there was bedsore and
treatment of the same through August 1lth of 2020." St. Rose-Siena's
counsel then noted "just for the record, that [this] is from the Affidavit of
Debbie Marsh that says the family was aware that the bedsore was down to
the bone and notified that was the case prior to the transfer back to St. Rose
on August 12th." The district court then advised Engelson that its
determination of the accrual date was "based on your own Affidavit."
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ANALYSIS
St. Rose-Siena's and Sage Creek's motions to dismiss were not converted to
motions for summary judgment
St. Rose-Siena and Sage Creek both acknowledge that they
sought dismissal under NRCP 12(b)(5) on statute of limitations grounds and
that the district court granted the relief requested. Yet, they assert that
this court must treat their motions to dismiss as motions for summary
judgment because the parties' briefing was supported by "evidence outside
the complaint." Specifically, St. Rose-Siena and Sage Creek contend that
the district court considered documents that were contained on an
electronic disc that was attached as an exhibit to Marsh's affidavit of merit
and incorporated by reference therein, copies of Governor Sisolak's
emergency directives regarding the COVID-19 pandemic, and unpublished
orders from other cases ostensibly cited for their persuasive authority. We
disagree that the district court's consideration of these documents converted
St. Rose-Siena's and Sage Creek's motions to dismiss into motions for
summary judgrnent.
Pursuant to NRCP 12(b)(5), a defendant can move to dismiss a
plaintiffs complaint for "failure to state a claim upon which relief can be
granted." And a court can dismiss a complaint under NRCP 12(b)(5) "if the
action is barred by the statute of limitations." Bemis v. Estate of Bemis, 114
Nev. 1021, 1024, 967 P.2d 437, 439 (1998) (citing NRCP 12(b)(5)). When
ruling on a motion to dismiss, a court generally "may not consider matters
outside the pleading being attacked." Breliant u. Preferred Equities Corp.,
109 Nev. 842, 847, 858 P.2d 1258, 1261 (1993); see NRCP 12(d). However,
a court may properly consider "matters of public record, orders, items
present in the record of the case, and any exhibits attached to the complaint
when ruling" on such a motion. Breliant, 109 Nev. at 847, 858 P.2d at 1261.
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Implicitly, the court may also consider legal authorities that, by definition.
are not "evidence," when reviewing a motion to disrniss. See id.
A court's consideration of such matters will not convert a
motion to dismiss into a motion for summary judgment. See Baxter, 131
Nev. at 764, 357 P.3d at 930 (stating that "[w]hile presentation of matters
outside the pleadings will convert [a] motion to dismiss to a motion for
summary judgment... such conversion is not triggered by a court's
'consideration of matters incorporated by reference or integral to the claim,"
including an affidavit or declaration of merit (quoting 5B Charles Alan
Wright & Arthur Miller, Federal Practice & Procedure: Civil § 1357, at 376
(3d ed. 2004))).
ln this case, the district court did not consider evidence outside
of the complaint that would convert the motions to ones for summary
judgment. Marsh's affidavit of merit was attached as an exhibit to
Engelson's complaint. Further, that affidavit incorporated by reference all
of the docurnents that Marsh reviewed, and copies of those documents were
contained on an electronic disc that was, itself, attached as an exhibit to
Marsh's affidavit. As a result, all of those documents effectively became
part of the complaint, and the district court could properly consider thern in
connection with St. Rose-Siena's and Sage Creek's motions to dismiss
without converting them into motions for summary judgment. See NRCP
10(c) ("A copy of any written instrument which is an exhibit to a pleading is
a part thereof for all purposes."); see also Baxter, 131 Nev. at 764, 357 P.3d
at 930.
To the extent the parties also attached unpublished orders and
copies of the Governor's emergency directives regarding the COVID-19
pandemic as exhibits to their briefing below, the district court's
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consideration of such materials likewise did not convert the motions to
dismiss into motions for summary judgment because those materials
constitute legal authority, not evidence. See Breliant, 109 Nev. at 847, 858
P.2d at 1261; see also Lucky Lucy D LLC v. LGS Casino LLC, 139 Nev., Adv.
Op. 26, 534 P.3d 689, 692 (2023) (recognizing that the "Governor's
Emergency Directives ... carried with them the force of law for the
duration of the state of emergency").
Therefore, we review the district court's order under the
"rigorous, de novo standard of review" applicable to an order granting a
motion to dismiss for failure to state a claim. Montanez v. Sparks Farn.
Hosp., Inc., 137 Nev. 742, 743, 499 P.3d 1189, 1191 (2021) (quoting Slade v.
Caesars Entrn't Corp., 132 Nev. 374, 379, 373 P.3d 74, 78 (2016)). A district
court may dismiss a complaint for failure to state a claim only "if it appears
beyond a doubt that [the plaintiff] could prove no set of facts, which, if true,
would entitle [the plaintiff] to relief." Buzz Stew, LLC v. City of North Las
Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008). When evaluating such
a dismissal, "this court will recognize all factual allegations in [the
plaintiff s] complaint as true and draw all inferences in [the plaintiffsl
favor." Id.
The district court erred by granting the motions to dismiss on statute of
limitations grounds
Engelson argues that the district court erred when it initially
granted St. Rose-Siena's and Sage Creek's motions to dismiss. Engelson
contends that her complaint was timely filed within the one-year statute of
limitations for professional negligence actions then required by NRS
41A.097(2). Sage Creek disagrees, arguing that the district court properly
dismissed Engelson's complaint because the estate was on inquiry notice of
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its professional negligence claims more than one year before Engelson filed
the complaint."
NRS 41A.097(2) requires claims for professional negligence
occurring on or after October 1, 2002, and before October 1, 2023, to be filed
"within one year of the injury's discovery and three years of the injury date,"
whichever occurs first. Libby v. Eighth Judicial Dist. Court, 130 Nev. 359,
361, 325 P.3d 1276, 1277 (2014). In Massey v. Litton, the Nevada Supreme
Court explained that the limitation period for the "discovery" of an injury
begins to run when the 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." 99 Nev. 723, 728, 669 P.2d 248,
252 (1983). For purposes of the discovery rule, the "injury" in question is
the legal injury, which means both the "physical damage" and the
"[professional] negligence causing the damage." Id. at 726, 669 P.2d at 250-
51. In the proceedings below, the parties appeared to agree that the
"physical damage" at issue was Meyer's bedsore; however, they disagreed
about when the plaintiff was on inquiry notice that professional negligence
may have caused that bedsore.
We note that the one-year statute of limitations is expressly tied
to the plaintiff's discovery of the injury constituting professional negligence.
See NRS 41A.097(2) (describing the applicable statute of limitations for the
discovery of an injury as "1 year after the plaintiff discovers or through the
use of reasonable diligence should have discovered the injury" (emphasis
added)). In cases like this one, where a decedent's estate is the named
"St. Rose-Siena does not address this argument in its answering brief,
focusing instead on the district court's subsequent ruling on Engelson's
motion for reconsideration.
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plaintiff, Nevada law indicates that the discovery rule is triggered when the
estate or its representative are on inquiry notice of the legal injury. See,
e.g., Kushnir v. Eighth Judicial Dist. Court, 137 Nev. 409, 411-14, 495 P.3d
137, 140-42 (Ct. App. 2021) (determining that a professional negligence
claim accrued on the date that the named plaintiffs—the estate and its
administrator—acquired the decedent's medical records); see also Valley
Health Sys., LLC v. Eighth Judicial Dist. Court, No. 82250, 2021 WL
4860728, at *2 (Nev. Oct. 18, 2021) (Order Granting Petition) (concluding
that professional negligence claims accrued when the special administrator
of the decedent's estate filed a complaint with the State Board o' Nursing).
As the special administrator of Meyer's estate asserting
survivorship claims pursuant to NRS 41.100, Engelson "stands in the shoes
of the decedent and is subject to all defenses that might have been asserted
against the decedent," including any applicable statutes of limitations.
Schwartz v. Wasserburger, 117 Nev. 703, 708, 30 P.3d 1114, 1117 (2001).
Although Engelson filed her lawsuit exactly one year after Meyer's death,
the district court had to determine whether Engelson or Meyer "discovered"
the legal injury prior to Meyer's death, because if so, the estate's claims
would be time-barred. See, e.g., White v. Johns-Manville Corp., 693 P.2d
687, 697 (Wash. 1985) (applying the discovery rule to survivorship actions
and concluding that the statute of limitations "commences at the earliest
time at which the decedent or his personal representatives knew or should
have known" of the legal injury).
Here, the district court dismissed Engelson's complaint after
concluding, as a matter of law, that "Plaintiff was aware of her injury on or
around August 11, 2020 at the latest" and that the complaint was untimely
filed more than one year after this accrual date, on September 14, 2021.
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However, the accrual date for the one-year discovery period in NRS
41A.097(2) "ordinarily presents a question of fact to be decided by the jury,"
and "[o]nly when evidence irrefutably demonstrates this accrual date may a
district court make such a determination as a matter of law." Winn v.
Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 251, 277 P.3d 458, 462 (2012)
(emphasis added). Moreover, "[a]t this stage of proceedings [the] court must
determine whether there is any set of facts that, if true, would entitle [the
plaintiff] to relief and not whether there is a set of facts that would not
provide [the plaintiff] with relief." Szyrnborski v. Spring Mountain
Treatment Ctr., 133 Nev. 638, 644, 403 P.3d 1280, 1286 (2017).
To date, Nevada's appellate courts have found irrefutable
evidence of the accrual date under only limited circumstances. For
instance, in Winn, the Nevada Supreme Court determined as a matter of
law that a plaintiff "discovered" his daughter's injury, including the cause
of that injury, on the date that he first received his daughter's medical
records. 128 Nev. at 253, 277 P.3d at 463. "At [that] point, [the plaintiff]
had not only hired an attorney to pursue a medical malpractice action, but
he also had access to [a relevant] postoperative report" that placed him on
inquiry notice that his daughter's injury was caused by professional
negligence. Id. TAkewise, irt Kushnir, this court concluded, as a matter of
law, that an estate's professional negligence claim on behalf of a decedent
accrued on the date that the estate acquired the decedent's medical records,
as that was the date its medical expert had all the information necessary to
discover the medical malpractice and prepare an expert affidavit. 137 Nev.
at 411-14, 495 P.3d at 140-42.
Relatedly, in Estate of Curtis v. Socaoco, the Nevada Supreme
Court concluded that the personal representative of a decedent's estate was
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on inquiry notice of the estate's claims against certain health care providers
on the date that she was "explicitly inforrned" by medical professionals that
those providers "should have immediately sent [the decedent] to the
hospital" after erroneously injecting her with morphine. No. 79116, 2020
WL 5837916, at *2 (Nev. Sept. 30, 2020) (Order of Affirmance). When the
decedent died a few days later, the personal representative "knew or should
have known that someone's negligence in treating the morphine overdose
might have caused [her] death." Id. (emphasis in original).
Finally, in Valley Health System, the Nevada Supreme Court
looked to the date that the special administrator of the decedent's estate
filed a complaint with the State Board of Nursing to deterrnine the accrual
date for the professional negligence claims. 2021 WL 4860728, at *2.
Because the complaint alleged that the decedent's health care providers "did
not appropriately monitor her, abandoning her care and causing her death,"
the court concluded that the special administrator "had enough information
to allege a prima facie claim for professional negligence" on the date he filed
that complaint. Id.
Here, the district court did not have irrefutable evidence that
Engelson or Meyer were in possession of Meyer's medical records at any
time prior to her death. Cf. Winn, 128 Nev. at 253, 277 P.3d at 463; Kushnir,
137 Nev. at 411-14, 495 P.3d at 140-42. Likewise, the district court was not
presented with evidence that any medical professionals "explicitly
informed" Engelson or Meyer that the care Meyer was receiving may have
either caused her bedsore or caused it to worsen. Cf. Socaoco, 2020 WL
5837916, at *2. And the district court was not presented with evidence that
Engelson or Meyer filed an administrative complaint against Meyer's
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health care providers at any point prior to Meyer's death. Cf. Valley Health
Sys., 2021 WL 4860728, at *2.
Although the district court found that Engelson's "complaint
and the accompanying [affidavit of merit] established irrefutable evidence"
of the accrual date, the court drew improper inferences against both
Engelson and Meyer to reach that conclusion. Engelson's complaint does
not contain any allegations indicating that Engelson or Meyer knew or
should have known that professional negligence might have either caused
Meyer's bedsore or caused it to worsen at any point prior to Meyer's death.
Likewise, Marsh's affidavit of merit does not irrefutably demonstrate that
Engelson or Meyer were on inquiry notice of their professional negligence
claims while Meyer was still alive. Though the affidavit describes how
Meyer's bedsore worsened during her stay at Sage Creek—as documented
in her medical records—it does not state that Meyer or her family were
aware that her bedsore had worsened due to professional negligence.
Additionally, while the affidavit states that Meyer placed phone calls to
family members to complain about her treatment at the facility, there is no
indication that those complaints had anything to do with Meyer's bedsore.
On appeal, Sage Creek asks this court to find irrefutable
evidence of the accrual date in the "memorandum to expert" that was
prepared by Engelson's attorneys and attached to Marsh's affidavit. But
this memorandum does not irrefutably demonstrate that Engelson's
complaint is time-barred either. The memorandum states that Meyer "was
told by a nurse at St. Rose-Siena named Anna that there was a bedsore from
St. Rose-Siena, but when she was transferred to Sage Creek, it was only the
size of a dime and was closing up." Even if Meyer knew she had a bedsore
that was healing when she first arrived at Sage Creek, the memorandum
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does not establish that Meyer knew her bedsore worsened during her stay
at the facility due to the treatment and care she was receiving. And even
though the memorandum states that when Meyer was subsequently
transferred to St. Rose-Siena, the bedsore was "huge," "down to the bone,"
and "stage 4," the memorandum does not state that Meyer or Engelson were
actually informed by the hospital staff that her condition had in fact
worsened and, more specifically, was the result of professional negligence.
While the affidavit of merit and the memorandum to expert
both generally referenced phone calls that Meyer had with unnamed "family
members" during her two-week stay at Sage Creek, neither document states
that Meyer discussed her bedsore during any of these calls. Instead, the
documents reflect that Meyer complained to her family about the treatment
she was receiving at Sage Creek and that she told her family about a few
specific instances of that mistreatment. The documents further state that
"the family" tried to call the head nurse and manager to get help for Meyer,
which was not given. To conclude, based on the vague references in these
documents that, as of August 11, 2020, Engelson and Meyer knew or should
have known that professional negligence by St. Rose-Siena and Sage Creek
may have caused Meyer's bedsore or caused the bedsore to worsen, the
district court had to draw inferences against them, which it was not
permitted to do when ruling on a motion to dismiss.7
7Sage Creek also relies on language in the memorandum to expert
which states that the family has "recordings" of phone calls with Meyer
during her stay at the facility. But again, there is no indication these
recordings referenced Meyer's bedsore or showed that Meyer or Engelson
were aware that a professional negligence claim against Sage Creek may
exist.
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It is important to remember that the professional negligence
alleged in this case occurred during the summer of 2020, when much of this
State was subject to COVID-19 pandemic restrictions and when Meyer's
family was not even permitted to see her in person to witness the wound
that is at the heart of this litigation. Although Meyer's medical records from
the summer of 2020 contain documentation regarding her bedsore, it is
unclear when Engelson first received copies of those medical records.8
Absent "irrefutable evidence" that Meyer or Engelson were aware of the
contents of Meyer's medical records by August 11, 2020, we cannot say that
they were on inquiry notice of the professional negligence claims as of that
date.
Thus, because the evidence before the district court did not
"irrefutably demonstrate" that Meyer or Engelson discovered Meyer's legal
injury as of August 11, 2020, see Winn, 128 Nev. at 251, 277 P.3d at 462,
8We refuse, at this time, to adopt Engelson's contention that the true
accrual date was April 15, 2021—the day Engelson's attorney received a
copy of Meyer's medical records from Sage Creek. Although Engelson relies
on a Custodian of Records Affidavit indicating that Meyer's medical records
were reproduced on that date, the affidavit does not irrefutably demonstrate
that this was the actual accrual date when Engelson first discovered the
injury. Rather, this evidence merely establishes that Engelson discovered
Meyer's injury no later than April 15, 2021. See Winn, 128 Nev. at 253, 277
P.3d at 463 (holding that the date the plaintiff received medical records
irrefutably demonstrated the latest date on which he was placed on inquiry
notice of a potential cause of action). Discovery may reveal that Meyer's
family obtained the necessary information or medical records from Sage
Creek or St. Rose-Siena prior to their reproduction to Engelson's attorney
on April 15, 2021. And, because the accrual date is generally a question of
fact, it would be premature for us to decide this issue on appeal. See Ryan's
Express Transp. Servs., Inc. v. Arnador Stage Lines, Inc., 128 Nev. 289, 299,
279 P.3d 166, 172 (2012) ("An appellate court is not particularly well-suited
to make factual determinations in the first instance.").
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the district court erred in determining as a matter of law that the complaint
was time-barred.
This court may address the district court's rulings on the merits of Engelson's
motion for reconsideration
After the district court dismissed her complaint on statute of
limitations grounds, Engelson moved for reconsideration on the basis that
her complaint stated a wrongful death claim that was timely filed within
one year of Meyer's death. This was an argument that Engelson had not
raised in response to the previously filed motions to dismiss. In her motion
for reconsideration, Engelson also reargued a point that she had previously
raised in opposition to Sage Creek's motion to dismiss—namely, that Sage
Creek was not a "[p]rovider of health care" as defined in NRS 41A.017 and,
therefore, the one-year statute of lirnitations did not apply to Sage Creek.
The district court could have declined to consider both
arguments, and it would have been within the court's discretion to do so.
See EDCR 2.24(a) ("No motion once heard and disposed of may be renewed
in the same cause, nor may the same matters therein embraced be reheard,
unless by leave of the court .. . ." (emphasis added)). Instead, the court
rejected both arguments on their merits in a written order that was issued
before Engelson filed her notice of appeal. Where, as here, the district
court's "reconsideration order and motion are properly part of the record on
appeal from the final judgment, and ... the district court elected to
entertain the motion on its merits, then we may consider the arguments
asserted in the reconsideration motion in deciding an appeal from the final
judgment." Arnold v. Kip, 123 Nev, 410, 417, 168 P.3d 1050, 1054 (2007).
"We note that both St. Rose-Siena and Sage Creek have asked this
court to decide whether Engelson's allegations are subject to NRS Chapter
COURT OF APPEALS
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(1) 1.4471i drtWIT.,
This court generally reviews the denial of a motion for
reconsideration for abuse of discretion. See Saticoy Bay, LLC, Series 34
Innisbrook v. Thornburg Mortg. Sec, Tr. 2007-3, 138 Nev., Adv. Op. 35, 510
P.3d 139, 146 (2022). "An abuse of discretion can occur when the district
court bases its decision on a clearly erroneous factual determination or it
disregards controlling law." MB Arn., Inc. u. Alaska Pac, Leasing Co., 132
Nev. 78, 88, 367 P.3d 1286, 1292 (2016). And "deference is not owed to legal
error." AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d
1190, 1197 (2010). Additionally, we review questions of law, including
questions of statutory interpretation, de novo. Soro v. Eighth Judicial Dist.
Court, 133 Nev. 882, 885, 411 P.3d 358, 361 (Ct. App. 2017); Pub. Agency
Comp. Tr. (PACT) v. Blake, 127 Nev. 863, 866, 265 P.3d 694, 696 (2011).
As detailed below, we conclude that the district court erred by
determining that Engelson failed to adequately plead and support a
wrongful death claim on behalf of the estate based on professional
negligence. And, because the one-year statute of limitations for a wrongful
death claim based on professional negligence begins to run when "the
plaintiff discovers or reasonably should have discovered the legal injury,
i.e., both the fact of death and the negligent cause thereof," see Pope v. Gray,
104 Nev. 358, 362, 760 P.2d 763, 765 (1988), we conclude that the district
court erred in determining that Engelson's complaint—filed exactly one
year after Meyer's death—was untimely. Consequently, to the extent it
based its denial of reconsideration on those erroneous determinations, the
district court abused its discretion. Nevertheless, the district court
41A and whether her complaint and expert declaration complied with NRS
41A.071.
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correctly found that Engelson's professional negligence claims against Sage
Creek were subject to the requirements of NRS Chapter 41A.
Engelson's complaint adequately stated a claim for wrongful death
based upon professional negligence
Before addressing whether Engelson's complaint sufficiently
stated a claim for wrongful death on behalf of the estate, we note that
"[w]rongful death is a cause of action created by statute, having no roots in
the common law." Alsenz v. Clark Cty. Sch. Dist., 109 Nev. 1062, 1064, 864
P.2d 285, 286 (1993). Nevada's wrongful death statute, NRS 41.085,
provides that "[w]hen the death of any person . . . is caused by the wrongful
act or neglect of another, the heirs of the decedent and the personal
representatives of the decedent" may maintain a wrongful death claim for
"damages against the person who caused the death." NRS 41.085(2). The
statute thus "creates two separate wrongful death claims, one belonging to
the heirs of the decedent and the other belonging to the personal
representative of the decedent, with neither being able to pursue the other's
separate claim." Alcantara v. Wal-Mart Stores, Inc., 130 Nev. 252, 256, 321
P.3d 912, 914 (2014).
To state a wrongful death claim under NRS 41.085(2),
Engelson's complaint needed to allege that the defendants' "wrongful act or
neglect ... caused" Meyer's death. NRS 41.085(2); see also Gilloon v.
Humana Inc., 100 Nev. 518, 521, 687 P.2d 80, 82 (1984) ("The death of the
decedent being an essential element of the cause of action for wrongful
death, there can be no legal injury until the death has occurred."). Further,
Engelson needed to allege that she was among the classes of persons
entitled to assert a wrongful death claim: a statutory heir, a personal
representative, or both. See NRS 41.085(2). And depending on how
Engelson self-identified in the complaint—as an heir or a personal
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4o) 1947n .42p.
representative—her available dana ages would have been limited. See NRS
41.085(4)-(5).
Nevada is a notice pleading jurisdiction that liberally construes
pleadings. NRCP 8(a); Droge v. AAAA Two Star Towing, Inc., 136 Nev. 291,
308, 468 P.3d 862, 878 (Ct. App. 2020). "A complaint need only set forth
sufficient facts to demonstrate the necessary elements of a claim for relief
so that the defending party has adequate notice of the nature of the claim
and relief sought." W. States Constr., Inc. v. Michoff, 108 Nev. 931, 936, 840
P.2d 1220, 1223 (1992). As mentioned, a complaint should be disinissed for
failure to state a claim "only if it appears beyond a doubt that [the plaintiff]
could prove no set of facts, which, if true, would entitle [her] to relief." Buzz
Stew, 124 Nev. at 228, 181 P.3d at 672.
Although Engelson's complaint was inartfully drafted, it set
forth the essential elements of a wrongful death claim against both St. Rose-
Siena and Sage Creek. Engelson alleged that St. Rose-Siena and Sage
Creek were both "vicariously responsible under the doctrine of respondeat
superior.... for the injuries and death" of Meyer. Engelson identified
specific "wrongful act[s] or neglect" by both St. Rose-Siena and Sage Creek
relating to the development and progression of the pressure ulcer. And
Engelson alleged that as a "direct and proximate result" of the negligence
by St. Rose-Siena and Sage Creek, Meyer was "caused to suffer serious
bodily injury, including worsened pressure ulcer wounds, infection and
great pain of mind and body, loss of a chance of a better outcome, and
contributed to her death."
Importantly, Engelson self-identified as "the Special
Administrator of the Estate of LENORE MEYER, deceased," and brought
her lawsuit "on behalf of the Estate of LENORE MEYER, deceased." Thus,
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for purposes of Nevada's wrongful death statute, Engelson was Meyer's
personal representative, see NRS 132.265 (defining the terrn "[p]ersonal
representative" to include "a special administrator"), and was therefore
entitled to seek the damages available to Meyer's estate under NRS
41.085(5). These allegations in the complaint, which we must accept as
true, sufficed to state a claim for wrongful death against both St. Rose-Siena
and Sage Creek under NRCP 8(a). Therefore, the district court abused its
discretion when it found that Engelson's complaint failed to state a wrongful
death claim.
Engelson's affidavit of merit satisfied NRS 41A.071
As noted, the district court also found that Engelson's affidavit
of rnerit was insufficient to support a wrongful death claim pursuant to NRS
41A.071. St. Rose-Siena and Sage Creek contend that the affidavit of merit
was insufficient because it failed to allege that they caused Meyer's death,
where causation is an essential eleinent of a wrongful death claim.
Engelson responds that there is no requirement in NRS 41A.071 that an
affidavit of merit must establish causation in wrongful death cases. To
resolve this dispute, we must examine the statute.
When interpreting a statute, appellate courts look first to the
statute's plain language. Smith v. Zilverberg, 137 Nev. 65, 72, 481 P.M
1222, 1230 (2021). If the statute's plain language is unambiguous, we will
enforce the statute as written, without resorting to the rules of construction.
Local Gov't Emp.-Mgrnt. Relations Bd. v. Educ. Support Ernps. Ass'n, 134
Nev. 716, 718, 429 P.3d 658, 661 (2018). However, if a statute's language is
ambiguous, meaning it is susceptible to more than one reasonable
interpretation, we will examine the provision's legislative history and the
statutory scheme as a whole to ascertain the Legislature's intent. We the
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People Neu. v. Miller, 124 Nev, 874, 881, 192 P.3d 1166, 1] 71 (2008): In re
Candelaria, 126 Nev. 408, 411, 245 P.3d 518, 520 (2010).
NRS 41A.071 sets forth the requirements for an affidavit of
merit in a professional negligence case. The statute states:
If an action for professional negligence is filed in
the district court, the district court shall dismiss
the action, without prejudice, if the action is filed
without an affidavit that:
1. Supports the allegations contained in the
action;
2. Is submitted by a medical expert 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 professional negligence;
3. Identifies by name, or describes by
conduct, each provider of health care who is alleged
to be negligent; and
4. Sets forth factually a specific act or acts of
alleged negligence separately as to each defendant
in simple, concise and direct terms.
At the outset, we note that NRS 41A.071 does not specifically
state that an affidavit of merit must opine as to causation. Indeed, the word
causation" does not appear anywhere in the text of NRS 41A.071. Rather,
when describing the requisite contents of the affidavit, the statute provides
only that the affidavit must support the complaint's allegations, identify the
negligent providers of health care, and identify the specific act(s) of
negligence alleged against each defendant. NRS 41A.071(1), (3), (4).") On
1"NRS 41A.071(2) does not address the contents of the affidavit;
rather, it addresses the qualifications of the medical expert who submitted
the affidavit. See, e.g., Monk v. Ching, 139 Nev., Adv. Op. 18, 531 P.3d 600,
602 (2023) ("Subsection 2 of NRS 41A.071 requires [affiant], as the medical
expert submitting the affidavit in support of the complaint, to have
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)1 19471i
its face, the plain language of NRS 41A.071 does not require any discussion
of actual or proximate causation. Therefore, in order to conclude that an
affidavit of merit must opine as to actual or proximate "causation," we
would have to read that requirement into the statute. There are only two
subsections where a causation requirement could possibly be found—either
in NRS 41A.071(1) or in NRS 41A.071(4)—so we will address each in turn."
To satisfy NRS 41A.071(1), an affidavit must "[s]upportH" the
allegations in the action. St. Rose-Siena and Sage Creek contend that an
expert affidavit cannot support a wrongful death claim within the meaning
of NRS 41A.071(1) unless it offers an opinion regarding causation. We
disagree. In Zohar v. Zbiegien, the Nevada Supreme Court recognized that
the support requirement "is ambiguous because it may reasonably be
interpreted as merely providing some substantiation or foundation for the
underlying facts within the complaint, or it rnay also be interpreted to
require that the affidavit corroborate every fact within the complaint." 130
Nev. 733, 737, 334 P.3d 402, 405 (2014). After finding that NRS 41A.071's
support requirement is ambiguous, the court looked to the legislative
history of the statute. Id.
The supreme court observed that NRS 41A.071 "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." Id. at 738, 334 P.3d at 405-06.
practiced 'in an area that is substantially similar to the type of practice
engaged in at the time of the alleged professional negligence.").
"A causation requirement cannot be found in NRS 41A.071(3), which
simply requires identification of the negligent provider of health care.
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But because the legislative history of the statute did not reveal the precise
level of specificity" necessary for an affidavit to "support" the allegations of
a medical malpractice claim, the court chose "to construe the statute in a
manner that conforms to reason and public policy" while balancing the
interests of both health care providers and injured patients. Id. at 738, 334
P.3d at 406.
As a result, the suprerne court rejected the notion that an
affidavit of merit must "independently state every fact required to
demonstrate a cause of action for medical malpractice." Id. at 739, 334 P.3d
at 406. Rather than isolating and subjecting the affidavit to hyper technical
scrutiny, "district court[s] should read a medical malpractice complaint and
affidavit of rnerit together when determining whether the affidavit meets
the requirements of NRS 41A.071." Id. at 735, 334 P.3d at 403.
Reviewing the complaint in Zohar (which alleged specific
conduct by individual hospital employees) alongside the expert affidavit,
which opined that "the medical staff in the emergency department of [the
hospital] breached the standard of care in their treatment of [the injured
patient] through the inappropriately tight application of a wound dressing
and/or bandage," the supreme court deemed the affidavit sufficient to
satisfy the support requirement of NRS 41A.071. Id. at 741, 334 P.3d at
407 (emphasis added). The supreme court's analysis demonstrates that an
affidavit of merit need not separately address causation and recite each of
the other essential elements of a particular claim to satisfy the support
requirement of NRS 41A.071. Rather, an affidavit of merit can adequately
support a complaint's allegations of professional negligence when it opines
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40) I9471.1
as to the professional standard of care and the breach of that standard of
care. -
Next, we must examine NRS 41A.071(4) to determine if that
section requires an affidavit of merit to address causation. To comply with
NRS 41A.071(4), an affidavit must identify the "specific act or acts of alleged
negligence" engaged in by each defendant. Yet, unlike the support
requirement in NRS 41A.071(1), the language of NRS 41A.071(4) is not
ambiguous. First, we note that this subsection refers to an "act or acts" of
negligence as opposed to a "claim or claims" of negligence. Even though
causation is an element of a negligence claim, causation is not necessary to
establish that an act was, in and of itself, negligent. Compare Element,
Black's Law Dictionary (11th ed. 2019) (defining an "element" as "[a]
constituent part of a claim that must be proved for the claim to succeed"),
with Negligence, Black's Law Dictionary (11th ed. 2019) (defining
c`negligence," in relevant part, as "[t]he failure to exercise the standard of
care that a reasonably prudent person would have exercised in a similar
situation"). To specify an act of negligence, one need only describe the act
that breached the duty of care; one need not demonstrate the consequences
of that act.
Additionally, while NRS 41A.071(4) generically refers to acts of
Cfnegligence," the statute's prefatory language clarifies that the type of
negligence at issue is "professional negligence" as expressly defined in NRS
41A.015. See Nev. Pub. Emps. Ret. Bd. v. Smith, 129 Nev. 618, 627, 310
12We note that, although NRS 41A.071 was amended in 2015 after the
decision in Zohar, those amendments did not substantively alter the
support requirement. 2015 Nev. Stat., ch. 439, § 6, at 2527 (effective
June 9, 2015).
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(01 014711
P.3d 560, 566 (2013) ("A statute's express definition of a term controls the
construction of that term no matter where the term appears in the statute."
(quoting Williams v. Clark Cty. Dist. Attorney, 118 Nev. 473, 485, 50 P.3d
536, 544 (2002))).
NRS 41A.015 provides that, for purposes of NRS Chapter 41A,
'c[p]rofessional negligence' means 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." While the statutory definition of "professional
negligence" incorporates the concepts of both duty of care and breach, it does
not include the concepts of actual or legal causation found in caselaw
describing the elements of negligence claims. Cf. Perez v. Las Vegas Med.
Ctr., 107 Nev. 1, 4, 805 P.2d 589, 590-91 (1991) ("To prevail on a negligence
theory, the plaintiff generally must show that: (1) the defendant had a duty
to exercise due care towards the plaintiff; (2) the defendant breached the
duty; (3) the breach was an actual cause of the plaintiff s injury; (4) the
breach was the proxirnate cause of the injury; and (5) the plaintiff suffered
damage."). Thus, read in context, the term "negligence" in NRS 41A.071(4)
rneans "professional negligence" as defined in NRS 41A.015, rather than a
cause of action for negligence as more broadly defined under common law.
See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 225, 228 (2012) (stating that "[d]efinition sections and
interpretation clauses are to be carefully followed" and "pit is very rare that
a defined meaning can be replaced with another permissible meaning of the
word on the basis of other textual indications; the definition is virtually
conclusive").
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(0) 1947R .415.
The 2015 amendment to the definition of "professional
negligence" underscores that the Legislature did not intend for the affidavit
requirement in NRS 41A.071(4) to include actual or proximate causation.
The prior version of NRS 41A.015 was enacted pursuant to a ballot
initiative in 2004 and defined "professional negligence" as "a negligent act
or omission to act by a provider of health care in the rendering of
professional services, which act or omission is the proximate cause of a
personal injury or wrongful death." Nevada Ballot Questions 2004, Nevada
Secretary of State, Question No. 3 (emphasis added). However, as a result
of the 2015 amendment, the Legislature removed all references to causation
from this definition and, at the same time, added the language in NRS
41A.071(4). See 2015 Nev. Stat., ch. 439, § 1.5, at 2526. We presume that
these changes were intended to remove causation from the definition of
"professional negligence" and the related affidavit requirements in NRS
41A.071. See McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.al 438,
442 (1986) ("It is ordinarily presumed that the legislature, by deleting an
express portion of a law, intended a substantial change in the law.").
The language of NRS 41A.100, the res ipsa loquitur statute,
further supports our reading of NRS 41A.071's affidavit requirement. See
State, Diu. of Ins. v. State Farm Mut. Auto, Ins. Co., 116 Nev. 290, 295, 995
P.2d 482, 486 (2000) ("Whenever possible, this court will interpret a rule or
statute in harmony with other rules or statutes."). NRS 41A.100(1) sets
forth five factual circumstances where a rebuttable presumption of
professional negligence exists such that a plaintiff need not present expert
testimony at trial, See, e.g., Cummings v. Barber, 136 Nev. 139, 144-45, 460
P.3d 963, 968 (2020) (concluding that an injured patient was not required
to present expert testimony to withstand surnmary judgment where she
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(I I p 19471i
presented evidence giving rise to a presumption of negligence under NRS
41A.100(1)). However, NRS 41A.100(3) creates an exception to this
rebuttable presumption when "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 frorn the accepted standard of care."
(Emphasis added.) By discussing the affidavit requirement in this way, the
statute confirms that the affidavit requirement is concerned with the
alleged deviation from the standard of care, not causation.
Notably, although causation is not within the statutory
definition of professional negligence for purposes of the affidavit
requirement, it remains an element that must be proven at trial. See NRS
41A.100(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 ... 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."
(emphasis added)). When interpreting statutes, Nevada follows the maxim
that "the mention of one thing implies the exclusion of another." Rural Tel.
Co. v. Pub. Utils. Comrn'n, 133 Nev. 387, 389, 398 P.3d 909, 911 (2017)
(quoting Sonia F. v. Eighth Judicial Dist. Court, 125 Nev. 495, 499, 215 P.3d
705, 708 (2009)). The Legislature's express statutory inclusion of causation
as an element of professional negligence claims that must be proven at trial
further emphasizes the legislative intent to exclude causation from the
affidavit requirements that must be established at the initial pleading
stage.
In sum, we hold that NRS 41A.071 does not require an expert
affidavit addressing legal or proximate causation in professional negligence
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(01 194713
cases. Thus, Engelson's complaint alleges claims of wrongful death, and we
conclude that the complaint was adequately pleaded and supported by an
affidavit of merit. The district court erred in concluding otherwise and thus
abused its discretion in denying reconsideration on that basis.
The district court correctly concluded that Engelson's professional
negligence claims against Sage Creek were subject to the requirements
of NRS Chapter 41A
Finally, Engelson contends that the district court abused its
discretion in denying her motion for reconsideration after erroneously
finding that Sage Creek was subject to the one-year statute of limitations
set forth in NRS 41A.097(2). Engelson contends that, because Sage Creek
is a "skilled nursing facility," and such facilities are not included in the
definition of "provider of health care" set forth in NRS 41A.017, the claims
against Sage Creek are not governed by NRS Chapter 41A. We disagree.
Skilled nursing facilities may be covered under NRS Chapter
41A when a complaint alleges liability against the facility based on the
professional negligence of its nurses, who are "providers of health care" as
defined in NRS 41A.017." For instance, in Estate of Curtis v. South Las
'The version of NRS 41A.017 in effect at the relevant time defined
"[p]rovider of health care" as
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
psychologist, chiropractic physician, doctor of
Oriental medicine, holder of a license or a limited
license issued under the provisions of chapter 653
of NRS, medical laboratory director or technician,
licensed dietitian or a licensed hospital, clinic,
surgery center, physicians' professional corporation
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194713
Vegas Medical Investors, LLC, the Nevada Supreme Court determined that
NRS Chapter 41A applied to the plaintiff s allegation that a nursing home,
through its nursing staff, failed to monitor its patient after administering
morphine. 136 Nev. 350, 358, 466 P.3d 1263, 1270 (2020). In Yafchak v.
South Las Vegas Medical Investors, LLC, the supreme court clarified that
the reason NRS Chapter 41A applied to the professional negligence
allegation in Estate of Curtis was because the plaintiff had "specifically
asserted that the underlying negligence was committed by a nurse (a person
included within NRS 41A.017's definition of a provider of health care)." 138
Nev., Adv. Op. 70, 519 P.3d 37, 40 (2022). In addition, the supreme court
explained that a "nursing home facility may be vicariously liable for the
professional negligence of a nursing home employee who is a provider of
health care, in which case the nursing home would be subject to NRS
Chapter 41A." Id.
Engelson's complaint alleged that Sage Creek's nurses and staff
were negligent in providing nursing care to Meyer, including by failing to
properly treat her sacral bedsore. Engelson further alleged that Sage Creek
was vicariously liable under the doctrine of respondeat superior for the
negligence of its nursing staff. Insofar as the complaint seeks to hold Sage
Creek vicariously liable for the professional negligence of its nurses, we
conclude that NRS Chapter 41A necessarily applies to those claims."
or group practice that employs any such person and
its employees.
"In light of our disposition, we need not determine whether all of
Engelson's allegations against Sage Creek and St. Rose-Siena sound in
professional negligence as opposed to general negligence, or whether the
statute of limitations on Engelson's claims was tolled by Governor Sisolak's
emergency directives regarding the COVID-19 pandemic. See Miller v.
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COI I Y471t
Further, as we have noted, the district court erred in dismissing those
claims as time-barred.
CONCLUSION
The evidence in this case did not irrefutably demonstrate that
Engelson or Meyer discovered or should have discovered the legal injury
more than a year before Engelson filed her complaint. Therefore, the
survivorship claims should not have been dismissed as untimely as a matter
of law. Moreover, Engelson's complaint adequately pleaded wrongful death
claims based on professional negligence and was timely filed within one
year of Meyer's death. Although the district court found the attached
affidavit of merit deficient because it did not opine as to the cause of Meyer's
death, the affidavit was not required to address causation and adequately
supported the allegations of professional negligence for purposes of NRS
41A.071. Accordingly, we reverse and rernand this matter to the district
court for further proceedings consistent with this opinion.
Westbrook
We concur:
Gibbons
Bulla
Burk, 124 Nev. 579, 588-89, 188 P.3d 1112, 1118-19 (2008) (explaining that
this court need not address issues that are unnecessary to resolve the case
at bar).
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