                                                  131 Nev., Advance Opinion
                       IN THE SUPREME COURT OF THE STATE OF NEVADA
                                                                                  74

                WILLIAM NATHAN BAXTER,                              No. 65064
                Appellant,
                vs.
                DIGNITY HEALTH, D/B/A ST. ROSE
                DOMINICAN HOSPITALS; BRIAN
                LIPMAN, M.D.; DULCE QUIROZ, M.D.;
                                                                            FLED
                SYED AKBARULLAH, M.D.; SHALINI                               SEP 2 4 2015
                BHATIA, D 0 ; JESSICA GORDON,
                D.O.; NERIE JAMISON, DNP; AND IPC
                                                                              415/E,. K irLI,IrriiyANu
                                                                       CLEITt-(


                THE HOSPITALIST COMPANY, INC.,                                        i3WIL
                                                                                        Y CLERK
                Respondents.



                           Appeal from a district court order dismissing a medical
                malpractice action. Eighth Judicial District Court, Clark County;
                Kenneth C. Cory, Judge.
                           Reversed and remanded.


                Gary Logan, Las Vegas; Kenneth M. Sigelman & Associates and Kenneth
                M. Sigelman, San Diego, California,
                for Appellant.

                Alverson, Taylor, Mortensen & Sanders and LeAnn Sanders and Shirley
                Blazich, Las Vegas,
                for Respondent Dignity Health.

                Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C.
                McBride and Heather S. Hall, Las Vegas,
                for Respondent Brian Lipman, M.D.

                John H. Cotton & Associates, Ltd., and John H. Cotton and John J.
                Savage, Las Vegas,
                for Respondents Dulce Quiroz, M.D., Shalini Bhatia, D.O.; Jessica Gordon,
                D.O.; Nerie Jamison, DNP; and IPC The Hospitalist Company, Inc.

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                  Holland Litigation PLLC and Matthew G. Holland, Henderson; Schuering
                  Zimmerman & Doyle, LLP, and Thomas J. Doyle, Sacramento, California,
                  for Respondent Syed Akbarullah, M.D.




                  BEFORE THE COURT EN BANC.

                                                   OPINION
                  By the Court, PICKERING, J.:
                              This is an appeal from an order dismissing a medical
                  malpractice action under NRS 41A.071. Adopted in 2002 to curb baseless
                  malpractice litigation, NRS 41A.071 provides that a district court shall
                  dismiss a medical malpractice action "if the action is filed without an
                  affidavit" or declaration from a medical expert supporting the allegations
                  of malpractice. In this case, the plaintiff consulted with a medical expert,
                  from whom he obtained the supporting declaration required, before filing
                  suit. For reasons unclear, the plaintiff did not attach the declaration to
                  the complaint Instead, he filed the complaint by itself, then filed the
                  separately captioned declaration the next morning. The complaint
                  incorporates the declaration by reference, and vice versa, and the two
                  documents were served together on the defendants before the statute of
                  limitations ran. Under the Nevada Rules of Civil Procedure, the district
                  court should have considered the complaint and the declaration together.
                  Instead, the district court dismissed the action because the complaint was
                  filed without the declaration physically attached. NRS 41A.071 did not
                  require dismissal on these facts. We therefore reverse and remand.




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                                                        I.
                               Appellant William Baxter is a type 1 diabetic who presented to
                 the emergency room in August 2012 with an acute infection. He alleges
                 that the respondent hospital and doctors committed medical malpractice
                 by misdiagnosing his infection as viral, not bacterial. Baxter further
                 alleges that, had the correct diagnosis been timely made, his cervical spine
                 abscess should and could have been successfully treated with antibiotics.
                 The delay in proper diagnosis and treatment has allegedly left him a
                 ventilator-dependent tetraplegic who will require 24-hour nursing care for
                 the rest of his life.
                               Baxter obtained copies of his medical records in December
                 2012, which the parties seemingly agree triggered the one-year statute of
                 limitations in NRS 41A.097(2). Baxter's counsel retained an internist and
                 infectious disease specialist, Joseph Cadden, M.D., to review the medical
                 records. On August 16, 2013, Dr. Cadden signed a declaration under
                 penalty of perjury stating that he had reviewed the medical records and
                 "the complaint that I understand will be filed together with this
                 Declaration." The declaration is lengthy; it addresses the respondents'
                 standards of care, their asserted breaches, and the consequent harm to
                 Baxter. In it, Dr. Cadden also declares, "I believe that the pertinent facts
                 that I noted when reviewing the medical records regarding William
                 Nathan Baxter's medical care and treatment during the times pertinent to
                 this case are summarized accurately in Paragraphs 14 through 22 of the
                 [then draft] complaint."
                               Baxter's complaint was filed at 1:43 p.m. on August 19, 2013,
                 three days after Dr. Cadden dated and signed his declaration. The
                 complaint sets forth its allegations of malpractice, then alleges that
                 "Plaintiff is filing, at or about the time of the filing of this Complaint, the
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                Declaration of Joseph Cadden, M.D., pursuant to Nevada Revised Statutes
                § 41A.071 in support of the allegations set forth herein." For reasons
                unknown, the Cadden declaration was not attached to or filed at the same
                time as the complaint. Instead, the declaration was filed the next day,
                August 20, 2013, at 9:56 a.m. The summonses were issued and timely
                served, along with the complaint and the declaration, on respondents.
                            In November 2013, respondents moved to dismiss on the
                ground that Baxter's malpractice action was defective because filed
                without the expert affidavit supporting its allegations required by NRS
                41A.071." After briefing and argument, the district court granted the
                motion to dismiss. By then, the statute of limitations had run on Baxter's
                claims.


                            As written at the time pertinent to this appeal, NRS 41A.071
                read as follows:
                            If an action for medical malpractice or dental
                            malpractice is filed in the district court, the
                            district court shall dismiss the action, without
                            prejudice, if the action is filed without an affidavit,
                            supporting the allegations contained in the action,
                            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 malpractice.



                       'Respondent Dignity Health also argued in district court that
                Dr. Cadden cannot opine as to the malpractice of its nurses and other non-
                doctor staff because his practice area is not "substantially similar" to
                theirs. See NRS 41A.071. We do not address this argument because the
                district court did not reach it and respondents do not ask us to.



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                    (Emphasis added.) 2 The "affidavit" can take the form of either a "sworn
                    affidavit or an unsworn declaration made under penalty of perjury."
                    Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 202, 234 P.3d
                    920, 922 (2010).
                                 NRS 41A.071's affidavit-of-merit requirement imposes an
                    added pleading obligation on medical malpractice plaintiffs, beyond the
                    obligations imposed on plaintiffs generally by the Nevada Rules of Civil
                    Procedure. This creates tension between the Legislature's substantive
                    policy decision to deter frivolous malpractice litigation by imposing a pre-
                    suit affidavit-of-merit requirement and the liberal pleading policies
                    embedded in the Nevada Rules of Civil Procedure, which this court
                    adopted pursuant to its inherent authority to adopt procedural rules
                    designed to secure litigants their fair day in court.    See Borger v. Eighth
                    Judicial Dist. Court, 120 Nev. 1021, 1028-29, 102 P.3d 600, 605-06 (2004);
                    see also Benjamin Grossberg, Uniformity, Federalism, and Tort Reform:
                    The Erie Implications of Medical Malpractice Certificate of Merit Statutes,

                          2Although   the 2015 Legislature amended NRS 41A.071, it did not
                    change the language central to this appeal. See 2015 Nev. Stat., ch. 439, §
                    6 ("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." (emphasis added)). We analyze this appeal under the 2014
                    version of NRS 41A.071, since the 2015 amendments do not apply
                    retroactively. See id. at §§ 11, 13.



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                 159 U. Pa. L. Rev. 217, 243-48 (2010) (noting the split among federal
                 courts as to whether state affidavit-of-merit statutes like NRS 41A.071
                 impose a procedural obligation that is unenforceable because in conflict
                 with the Federal Rules of Civil Procedure, or whether they set substantive
                 state policy that federal courts should enforce under Erie Railroad Co. v.
                 Tompkins, 304 U.S. 64 (1938), and its progeny).
                              To date, this court has mediated the tension between NRS
                 41A.071 and the Nevada Rules of Civil Procedure according to the
                 perceived strength of the competing policies at stake. Thus, in Washoe
                 Medical Center v. Second Judicial District Court, 122 Nev. 1298, 1301, 148
                 P.3d 790, 792 (2006), the plaintiff filed her complaint the day before the
                 statute of limitations ran. She did not obtain an affidavit of merit until
                 the defendants moved to dismiss, by which time the statute of limitations
                 had run.     Id.   The plaintiff filed an amended complaint, to which she
                 appended the belated affidavit of merit, and argued that NRCP 15(a)
                 entitled her to amend as of right, that the amendment related back to the
                 original filing date, and that her claims therefore were timely.    Id.   A
                 divided supreme court disagreed, deeming the original complaint a nullity
                 to which NRCP 15(a) and the relation-back doctrine did not apply. 3 Id. at
                 1306, 148 P.3d at 795 (4-2-1 decision). We held that, in requiring


                       3 In Wheble v. Eighth Judicial District Court, 128 Nev., Adv. Op. 11,
                 272 P.3d 134, 137 (2012), a three-judge panel of this court, citing Washoe
                 Medical, held that a complaint dismissed for want of an NRS 41A.071
                 affidavit was so far incomplete that "the dismissed action was never
                 'commenced' for purposes of NRS 11.500, which tolls the statute of
                 limitations when an action is dismissed for want of subject matter
                 jurisdiction.



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                dismissal of an action filed without a supporting affidavit, NRS 41A.071
                trumps NRCP 15(a), which allows liberal amendment of pleadings, given
                the substantive policy expressed in NRS 41A.071 against a plaintiff
                bringing a malpractice action without a medical expert first reviewing and
                validating the claims. Id. at 1304, 148 P.3d at 794.
                            In Borger, by contrast, we invalidated an order dismissing a
                medical malpractice action because the expert who provided the affidavit
                of merit arguably did not practice in an area "substantially similar" to the
                defendant's, as required by NRS 41A.071. 120 Nev. at 1028, 102 P.3d at
                605. The object of NRS 41A.071's affidavit-of-merit requirement, we
                wrote, is "to ensure that parties file malpractice cases in good faith, i.e., to
                prevent the filing of frivolous lawsuits."    Id. at 1026, 102 P.3d at 604.
                And, "because NRS 41A.071 governs the threshold requirements for initial
                pleadings in medical malpractice cases, not the ultimate trial of such
                matters, we must liberally construe this procedural rule of pleading in a
                manner that is consistent with our NRCP 12 jurisprudence." Id. at 1028,
                102 P.3d at 605. Accord Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334
                P.3d 402, 406 (2014) (relying on NRCP 10(c) and NRCP 12 to reverse an
                order of dismissal under NRS 41A.071 and emphasizing that "the NRS
                41A.071 affidavit requirement is a preliminary procedural rule subject to
                the notice-pleading standard, and thus, it must be liberally construed in a
                manner that is consistent with our NRCP 12 jurisprudence") (internal
                quotations and alterations omitted). 4


                      4We  note that the 2015 amendments to NRS 41A.071 impose
                additional affidavit requirements beyond those in the version of NRS
                41A.071 considered in Zohar.



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                             The question in this case is whether, under the Nevada Rules
                 of Civil Procedure, yet consistent with the deterrent policies set by NRS
                 41A.071, Baxter's complaint and Dr. Cadden's declaration should be read
                 together as sufficient to survive a motion to dismiss. In evaluating a
                 motion to dismiss, courts primarily focus on the allegations in the
                 complaint. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228,
                 181 P.3d 670, 672 (2008). But "the court is not limited to the four corners
                 of the complaint." 5B Charles Alan Wright & Arthur Miller, Federal
                 Practice & Procedure: Civil § 1357, at 376 (3d ed. 2004). Under NRCP
                 10(c), "a copy of any written instrument which is an exhibit to a pleading
                 is a part thereof for all purposes." A court "may also consider unattached
                 evidence on which the complaint necessarily relies if: (1) the complaint
                 refers to the document; (2) the document is central to the plaintiffs claim;
                 and (3) no party questions the authenticity of the document."         United
                 States v. Corinthian Colleges, 655 F.3d 984, 999 (9th Cir. 2011) (internal
                 quotation omitted); see also Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
                 551 U.S. 308, 322 (2007) (in evaluating a motion to dismiss, "courts must
                 consider the complaint in its entirety, as well as other sources courts
                 ordinarily examine when ruling on [Fed. R. Civ. P.] 12(b)(6) motions to
                 dismiss, in particular, documents incorporated into the complaint by
                 reference") (citing 5B Charles Alan Wright & Arthur Miller, supra,
                 § 1357). While presentation of matters outside the pleadings will convert
                 the motion to dismiss to a motion for summary judgment, Fed. R. Civ. P.
                 12(d); NRCP 12(b), such conversion is not triggered by a court's
                 "consideration of matters incorporated by reference or integral to the
                 claim," 5B Wright & Miller, supra, § 1357, at 376, as where the complaint
                 "relies heavily" on a document's terms and effect,       Chambers v. Time

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                 Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). See also Kurtis A. Kemper,
                 Annotation, What Matters Not Contained in Pleadings May Be Considered
                 in Ruling on a Motion to Dismiss Under Rule I2(b)(6) of the Federal Rules
                 of Civil Procedure or Motion for Judgment on the Pleadings Under Rule
                 12(c) Without Conversion to Motion for Summary Judgment,             138 A.L.R.
                 Fed. 393 (1997) (collecting cases).
                              NRS 41A.071 does not state that the affidavit of merit must be
                 physically attached to the malpractice complaint—or even physically filed,
                 for that matter. It says, "If an action for medical malpractice . . . is filed in
                 the district court, the district court shall dismiss the action, without
                 prejudice, if the action is filed without an affidavit, supporting the
                 allegations contained in the action." In Zohar, we held that, under NRCP
                 10(c), concerning exhibits attached to pleadings, a medical malpractice
                 complaint and its supporting affidavit should be read together, in effect,
                 incorporating the affidavit into the complaint. 130 Nev., Adv. Op. 74, 334
                 P.3d at 406. Similarly, where the complaint incorporates by reference a
                 preexisting affidavit of merit, which is thereafter filed and served with the
                 complaint, and no party contests the authenticity of the affidavit or its
                 date, the affidavit of merit may properly be treated as part of the
                 pleadings in evaluating a motion to dismiss. 5


                       5 Respondents  rely on Wheble's reference, as part of its case history,
                 to an earlier unpublished order which granted the medical providers'
                 mandamus petition and directed the district court to dismiss the first
                 action because the plaintiff had filed the complaint without the required
                 affidavit. See 272 P.3d at 136. This unpublished order, while law of the
                 case in Wheble, see Recontrust Co. v. Zhang, 130 Nev., Adv, Op. 1, 317 P.3d
                 814, 818 (2014), does not constitute binding precedent, SCR 123, and, to
                 the extent inconsistent with this opinion, is disapproved.


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                            Baxter's complaint incorporates Dr. Cadden's declaration and
                alleges that the declaration was being filed "at or about the time of the
                filing of this Complaint." Dr. Cadden's declaration, filed just five judicial
                hours after the complaint, verifies the truth of this allegation; it is sworn
                under penalty of perjury and dated August 16, 2013, three days before
                Baxter filed the complaint. Better practice would have been to attach the
                declaration to the complaint and file the two documents together. But the
                fact remains that Baxter literally complied with NRS 41A.071 and the
                respondent medical providers were not negatively affected in any way by
                the separate submissions. The complaint incorporates the declaration and
                both were served together on the respondent medical providers, who were
                able to challenge the sufficiency of the declaration—one did, see note 1,
                supra—in their motions to dismiss They thus were in "no worse position"
                than if Baxter had attached the affidavit to the complaint instead of filing
                it one day later. See Thompson v. Long, 411 S.E.2d 322, 324 (Ga. Ct. App.
                1991) (reversing district court's order dismissing medical negligence action
                due to the plaintiffs failure to attach an expert affidavit to the complaint
                because though the plaintiff failed to plead that she qualified for an
                exception to the contemporaneous affidavit requirement filing and had 45
                extra days to file the affidavit, the complaint placed the defendants on
                notice that she qualified for that exception and the plaintiff filed the
                proper affidavit within the extended period of time).
                            Under NRCP 8(0, "[a111 pleadings shall be so construed as to
                do substantial justice." See Chastain v. Clark Cnty. Sch. Dist., 109 Nev.
                1172, 1178, 866 P.2d 286, 290 (1993). Treating Baxter's pleadings as
                comprising the complaint and the declaration the complaint incorporates
                comports with NRCP 8(0 and case law interpreting the federal analog to

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                  NRCP 12(b)(5), see 5B Charles Man Wright & Arthur Miller, supra, §
                  1357, and does not disserve the substantive policies the Legislature
                  established in NRS 41A.071. This action was not brought without the
                  prior expert medical review NRS 41A.071 demands, consistent with the
                  statute's overall purpose: to ensure that plaintiffs file non-frivolous
                  medical malpractice actions "in good faith based upon competent expert
                  medical opinion." Zohar, 130 Nev., Adv. Op. 74, 334 P.3d at 405 (internal
                  citations omitted). Substantial justice is done by reading the complaint as
                  incorporating the declaration in deciding dismissal. Because Baxter did
                  not file his medical malpractice action without a medical expert's
                  declaration, dismissal under NRS 41A.071 was not required and we
                  reverse and remand for further proceedings consistent with this opinion.




                  We concur:




                                            , C.J.
                  Hardesty                                  P--C2CskelesStle.
                                                               arraguirre


                                             J.
                  Douglas


                                            , J.
                  Saitta                                    Gibbons


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