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


                      MAX ZOHAR, A MINOR; AND DAFNA                         No. 60050
                      NOURY, INDIVIDUALLY AND AS THE
                      NATURAL MOTHER OF MAX ZOHAR,
                      Appellants,                                               MED
                      vs.
                      MICHAEL ZBIEGIEN, M.D., AN                                 SEP 18 2014
                      INDIVIDUAL; EMCARE, INC., A                              TRACIF K. I. iNDEMAN
                                                                            CLE
                      FOREIGN CORPORATION; EMCARE                          BY
                                                                                CHI
                      PHYSICIAN SERVICES, INC, A
                      FOREIGN CORPORATION; EMCARE
                      PHYSICIAN PROVIDERS, INC., A        •




                      FOREIGN CORPORATION; AND
                      RACHEL LOVERA, R.N., AN
                      INDIVIDUAL,
                      Respondents.



                                  Appeal from a district court order, certified as final under
                      NRCP 54(b), dismissing respondents from a medical malpractice action.
                      Eighth Judicial District Court, Clark County; Michael Villani, Judge.
                                 Reversed and remanded.

                      Eglet Wall Christiansen and Artemus W. Ham and Erica D. Entsminger,
                      Las Vegas,
                      for Appellants.

                      Alverson, Taylor, Mortensen & Sanders and David J. Mortensen and Ian
                      M. Houston, Las Vegas,
                      for Respondents Michael Zbiegien, M.D.; EmCare, Inc.; EmCare Physician
                      Services, Inc.; and EmCare Physician Providers, Inc.

                      Hall Prangle & Schoonveld, LLC, and Michael E. Prangle and Casey W.
                      Tyler, Las Vegas,
                      for Respondent Rachel Lovera, R.N.


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                 BEFORE THE COURT EN BANC.

                                                 OPINION
                 By the Court, GIBBONS, C.J.:
                             In this opinion, we consider whether an expert affidavit
                 attached to a medical malpractice complaint, which otherwise properly
                 supports the allegations of medical malpractice contained in the complaint
                 but does not identify all the defendants by name and refers to them only
                 as staff of the medical facility, complies with the requirements of NRS
                 41A.071. We conclude that in order to achieve NRS 41A.071's purpose of
                 deterring frivolous claims and providing defendants with notice of the
                 claims against them, while also complying with the notice-pleading
                 standards for complaints, the district court should read a medical
                 malpractice complaint and affidavit of merit together when determining
                 whether the affidavit meets the requirements of NRS 41A.071. In this
                 case, the expert affidavit, while omitting several names, adequately
                 supported the allegations of medical malpractice against respondents
                 contained in the complaint and provided adequate notice to respondents of
                 the claims against them. We therefore reverse the district court's order of
                 dismissal and remand this case to the district court for further
                 proceedings.
                                  FACTS AND PROCEDURAL HISTORY
                             Appellant Dafna Noury, mother of then-16-month-old Max
                 Zohar (collectively, the Zohars), took Max to the emergency room at
                 Summerlin Hospital for treatment of a parrot bite on his right middle
                 finger. The medical staff at Summerlin Hospital, including respondents
                 Michael Zbiegien, M.D., and Rachel Lovera, R.N., irrigated Max's finger,
                 repaired it, then dressed and bandaged the finger. Several days later, Dr.

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                   Zbiegien and a nurse examined Max's finger again, and Noury asserts that
                   they only removed and reapplied the outer dressing while the original
                   wound dressing was left in place. When Max returned several days later
                   to have the dressing removed, the Zohars allege that the hospital staff was
                   unable to remove the inner dressing from Max's finger because it was
                   stuck to Max's laceration. As a result, the dressings had to be soaked off.
                   Once the staff removed the dressing, they noted that Max's finger was
                   discolored. The emergency team consulted two hand specialists—who are
                   not parties to this appeal—who noted that Max's finger was "dusky,"
                   swollen, and had "venous/arterial flow compromise" Max underwent a
                   series of surgeries but eventually required a partial amputation of his
                   finger.
                                 The Zohars filed a medical malpractice complaint against
                   multiple defendants, including Summerlin Hospital Medical Center,
                   Zbiegien, and Lovera, as well as EmCare, Inc.; EmCare Physician
                   Services, Inc.; and EmCare Physician Providers, Inc. (collectively, the
                   EmCare entities). 1 The Zohars' complaint asserted claims of medical
                   malpractice and professional negligence against Zbiegien and Lovera, as
                   well as vicarious liability against the EmCare entities. The Zohars
                   attached an expert affidavit of Burton Bentley II, M.D., F.A.A.E.M., to the
                   complaint pursuant to NRS 41A.071. Dr. Bentley's affidavit stated that,
                   to a reasonable degree of medical probability, the medical staff in the
                   emergency department at Summerlin Hospital breached the standard of
                   care when Max's finger was dressed too tightly. Dr. Bentley

                         1 TheEmCare entities appear to be related entities within Zbiegien's
                   physicians group.



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                chronologically described Max's treatment and summarized the relevant
                medical records and photos that were the basis of his opinions. The
                affidavit specified the allegedly negligent activities of several individuals,
                as well as the activities of "the staff of the emergency department of
                Summerlin Hospital Medical Center, including but not limited to the
                responsible physician or physicians, nurse or nurses, and/or ancillary
                emergency department staff." 2 The affidavit did not identify Zbiegien,
                Lovera, or the EmCare entities by name.
                              Zbiegien, Lovera, and the EmCare entities filed motions to
                dismiss, arguing that Dr. Bentley's affidavit was deficient because it did
                not specifically name them as negligent parties. 3 The Zohars opposed the
                motions, arguing that the affidavit, when read together with the
                complaint, properly supported all allegations contained in the complaint.
                In the alternative, the Zohars requested leave to amend their complaint
                and expert affidavit. The district court granted the motions to dismiss and
                denied the Zohars' motion to amend. 4 The Zohars now appeal.




                      2 Dr.Bentley also noted that he would need further discovery to
                precisely implicate a single treatment date as having been more causative
                than the others.

                       3 Summerlin Hospital also moved to dismiss. The district court
                denied Summerlin Hospital's motion to dismiss because it found that
                Summerlin Hospital was properly named in the affidavit. Thus, the
                Zohars' claims against Summerlin Hospital are still pending in the district
                court.

                      4Thedistrict court found that the Zohars knew of Zbiegien's and
                Lovera's identities and actions, "given the medical records at their
                disposal and as evidenced by their naming of such parties in their
                                                              continued on next page . . .
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                                               DISCUSSION
                The district court erred in determining that the Zohars' expert affidavit
                was inadequate to support the allegations of medical malpractice
                            We review a district court order granting a motion to dismiss
                de novo. Munda v. Summerlin Life & Health Ins. Co., 127 Nev.
                267 P.3d 771, 774 (2011). Such an order will be affirmed only where "it
                appears beyond a doubt that the plaintiff could prove no set of
                facts ... [that] would entitle him [or her] to relief." Id. (quoting Vacation
                Viii., Inc. v. Hitachi Am., Ltd., 110       Nev. 481, 484, 874 P.2d 744, 746
                (1994)).
                            Similarly, we review issues of statutory construction de novo.
                Pub. Agency Comp. Trust v. Blake, 127 Nev. „ 265 P.3d 694, 696
                (2011). If a statute is clear on its face, we will not look beyond its plain
                language. Wheble v. Eighth Judicial Dist. Court, 128 Nev. „ 272
                P.3d 134, 136 (2012). But when a statute is susceptible to more than one
                reasonable interpretation, it is ambiguous, and this court must resolve
                that ambiguity by looking to the statute's legislative history and
                "construing the statute in a manner that conforms to reason and public
                policy." Great Basin Water Network v. Taylor, 126 Nev. 187, 196, 234 P.3d
                912, 918 (2010).
                            NRS 41A.071 requires that a medical malpractice action must
                be filed with "an affidavit, supporting the allegations contained in the
                action." (Emphasis added.) NRS Chapter 41A does not, however, define

                . . continued

                [c]omplaint, however, their expert failed to identify either party by name
                or to address either's care with any specificity within his affidavit."



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                 the level of detail required to adequately "support H" a plaintiffs
                 allegations. Looking to other sources, the word "support" has varying
                 definitions.     Black's Law Dictionary defines support as "[b]asis or
                 foundation." Black's Law Dictionary 1577-78 (9th ed. 2009). Additionally,
                 support has been defined as "to provide with substantiation,"
                 "corroborate," or "to . . . serve as a foundation."      Merriam-Webster's
                 Collegiate Dictionary 1256 (11th ed. 2007). Given these definitions, and
                 that the statute does not define what level of support is required, we
                 conclude that the term "support" in NRS 41A.071 is ambiguous because it
                 may reasonably be interpreted as merely providing some substantiation or
                 foundation for the underlying facts within the complaint, or it may also be
                 interpreted to require that the affidavit corroborate every fact within the
                 complaint, including individual defendant identities. In light of this
                 ambiguity, we will evaluate the statute's legislative history and attempt to
                 construe it in a manner that conforms to reason and public policy.        See
                 Great Basin, 126 Nev. at 196, 234 P.3d at 918.
                                NRS 41A.071 was enacted in 2002 as part of a special
                 legislative session that was called to address a medical malpractice
                 insurance crisis in Nevada. See Borger v. Eighth Judicial Dist. Court, 120
                 Nev. 1021, 1023, 102 P.3d 600, 602 (2004). At the time, doctors claimed
                 that medical malpractice "insurers were quoting premium increases of 300
                 to 500 percent." Hearing on S.B. 2 Before the Senate Comm. of the Whole,
                 18th Special Sess. (Nev., July 29, 2002) (statement of Governor Guinn).
                                The Legislature addressed the medical malpractice insurance
                 crisis, in part, by capping noneconomic damages, requiring settlement
                 conferences, and supplanting the existing malpractice screening panels
                 with the expert affidavit requirement under NRS 41A.071.        Borger, 120

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                Nev. at 1023-24, 1026, 102 P.3d at 602, 604. NRS 41A.071's affidavit
                requirement was implemented "to lower costs, reduce frivolous lawsuits,
                and ensure that medical malpractice actions are filed in good faith based
                upon competent expert medical opinion." 5 Washoe Med. Ctr. v. Second
                Judicial Dist. Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006)
                (quoting Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005)).
                The Governor of Nevada stated that the legislation "balance[d] the needs
                of injured parties, patients who seek the best medical care available and
                the doctors who must purchase and carry insurance to protect themselves
                and their patients." Hearing on S.B. 2 Before the Senate Comm. of the
                Whole, 18th Special Sess. (Nev., July 29, 2002) (statement of Governor
                Guinn).
                            As noted above, the legislative history of NRS 41A.071
                demonstrates that it 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 plaintiffs right to
                litigate his or her case and receive full compensation for his or her
                injuries. The legislative history does not reveal, however, the precise level
                of specificity that an expert affidavit must include in order to "support" the
                allegations in a medical malpractice claim under NRS 41A.071. In light of
                this uncertainty, we are left to construe the statute in a manner that


                      5 Additionally, the affidavit of merit was intended to make up for the
                perceived inefficiency of malpractice screening panels by shortening the
                time necessary to litigate medical malpractice cases, thereby driving down
                the costs of litigation for all parties. See Hearing on LB. 1 Before the
                Comm. on Med. Malpractice Issues, 18th Special Sess. (Nev., July 30,
                2002) (statement of Assemblywoman Buckley).



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                   conforms to reason and public policy and thus continues to balance the
                   interests of both the doctors and the injured patients.      See Great Basin,
                   126 Nev. at 196, 234 P.3d at 918.
                               Here, the Zohars argue that when the affidavit and complaint
                   are read together, it is clear that Dr. Bentley is referring to Zbiegien,
                   Lovera, and the EmCare entities. The Zohars note that Max was treated
                   in the emergency room over the course of several different visits, making it
                   difficult, if not impossible, for an expert such as Dr. Bentley to know,
                   before discovery, the name of every doctor, nurse, or staff member who
                   was responsible for Max's treatment. Thus, the Zohars argue that when
                   Dr. Bentley's affidavit is read together with their complaint, it is clear that
                   all defendants received sufficient notice of the nature and basis of the
                   Zohars' medical malpractice claims against them and that the lawsuit is
                   not frivolous or filed in bad faith Zbiegien, Lovera, and the EmCare
                   entities argue that Dr. Bentley's affidavit does not support the complaint
                   as required by NRS 41A.071 because it fails to reference or attribute any
                   negligent acts to them individually by name. Thus, the crux of this issue
                   is whether courts should• require a plaintiffs NRS 41A.071 affidavit of
                   merit to independently state every fact required to demonstrate a cause of
                   action for medical malpractice, or whether courts should read the affidavit
                   of merit together with the complaint to "ensure that medical malpractice
                   actions are filed in good faith based upon competent expert medical
                   opinion" Washoe Med. Gtr., 122 Nev. at 1304, 148 P.3d at 794 (internal
                   quotation omitted).
                               We conclude that reason and public policy dictate that courts
                   should read the complaint and the plaintiffs NRS 41A.071 expert affidavit
                   together when determining whether the expert affidavit meets the

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                 requirements of NRS 41A.071. See Great Basin, 126 Nev. at 196, 234 P.3d
                 at 918; Washoe Med. Ctr., 122 Nev. at 1304, 148 P.3d at 794; see also
                 NRCP 10(c). Such a reading ensures that our courts are dismissing only
                 frivolous cases, furthers the purposes of our notice-pleading standard, and
                 comports with Nevada's Rules of Civil Procedure.          See NRCP 10(c)
                 (exhibits to pleadings are considered part thereof); Borger, 120 Nev. at
                 1028, 102 P.3d at 605. As we have previously acknowledged, the NRS
                 41A.071 affidavit requirement is a preliminary procedural rule subject to
                 the notice-pleading standard, and thus, it must be "liberally construe [d]
                   . in a manner that is consistent with our NRCP 12 jurisprudence."
                 Borger, 120 Nev. at 1028, 102 P.3d at 605 (recognizing that "NRS 41A.071
                 governs the threshold requirements for initial pleadings in medical
                 malpractice cases, not the ultimate trial of such matters"). Given that the
                 purpose of a complaint is to "give fair notice of the nature and basis of a
                 legally sufficient claim and the relief requested," Breliant v. Preferred
                 Equities Corp., 109 Nev. 842, 846, 858 P.2d 1258, 1260 (1993), and the
                 purpose of the expert affidavit is to further enable the trial court to
                 determine whether the medical malpractice claims within the complaint
                 have merit, both policy considerations are served when the sufficiency of
                 the affidavit is determined by reading it in conjunction with the complaint.
                             Additionally, we are hesitant to adopt such a strict
                 interpretation of NRS 41A.071 as is advocated by respondents because at
                 this preliminary point in the proceedings, the parties have conducted little
                 to no formal discovery. Such a harsh interpretation would undoubtedly
                 deny many litigants the opportunity to recover against negligent parties
                 when the medical records available to the plaintiff do not identify a
                 negligent actor by name—especially in res ispa loquitur cases in which the

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                      parties are simply unable to identify the negligent actor. The majority of
                      other states that require an affidavit of merit or similar type of expert
                      substantiation do not require that the affidavit or substantiation
                      independently establish a claim of medical malpractice against each
                      defendant. See, e.g., Gadd v. Wilson & Co., 416 S.E.2d 285, 286 (Ga. 1992)
                      (negligence need not be explicitly linked to the defendant); Kearney v.
                      Berger, 7 A.3d•593, 604 (Md. 2010) (omitting the name of the defendant
                      "would not cause [the doctor, other defendants], or the courts any difficulty
                      in evaluating whether [the doctor] violated the standard of care"); Barber
                      v. Catholic Health Initiatives, Inc., 951 A.2d 857, 872 (Md. Ct. Spec. App.
                      2008) (although the certificate did not explicitly identify the defendants,
                      when read together with the other documents filed, "the [c]ertificate
                      unequivocally identified all of the [defendants]"); Ellefson v. Earnshaw,
                      499 N.W.2d 112, 114-15 (N.D. 1993) (concluding that North Dakota's
                      functionally similar statute "provides for a preliminary screening of totally
                      unsupported cases [but] does not require the plaintiff to complete
                      discovery or to establish a prima facie case during that accelerated time
                      frame"; rather, the expert's affidavit is sufficient if it "tends to corroborate
                      and support ... allegations of. . . negligence"). Even in instances with
                      multiple defendants, courts have not required individual names within the
                      affidavit. See Galik v. Clara Maass Med. Ctr., 771 A.2d 1141, 1152 (N.J.
                      2001) (referring to a radiologist by his job title and the timing of treatment
                      was sufficient to identify the defendant radiologist). 6



                            6 Even
                                 the few states that require the affidavit of merit to state an
                      independent claim of medical malpractice against each and every
                      defendant offer opportunities to cure deficiencies.     See Scoresby v.
                                                                     continued on next page. . .

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                             As a result, we conclude that the district court should have
                read Dr. Bentley's affidavit together with the Zohars' complaint to
                determine whether the affidavit satisfied the requirements of NRS
                41A.071. Under such a reading, we conclude that the Zohars' complaint is
                not frivolous or filed in bad faith, and Zbiegien, Lovera, and the EmCare
                entities were on sufficient notice of the nature and basis of the Zohars'
                medical malpractice claims against them. That is not to say that every
                affidavit of merit that fails to identify specific defendants will satisfy NRS
                41A.071. Rather, the district court in each instance should evaluate the
                factual allegations contained in both the affidavit and the medical
                malpractice complaint to determine whether the affidavit adequately
                supports or corroborates the plaintiffs allegations. Here, the complaint

                . . . continued

                Santillan, 346 S.W.3d 546, 557 (Tex. 2011); Hinchman v. Gillette, 618
                S.E.2d 387, 394-95 (W. Va. 2005). In Texas, every expert report, even if
                substantively deficient, is eligible for the statutory extension to cure any
                deficiencies so long as it was timely served, includes a qualified expert's
                opinion that the claim has merit, and implicates the defendant's conduct.
                Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West 2013); Scoresby, 346
                S.W.3d at 557. In West Virginia, a defendant cannot challenge the legal
                sufficiency of a certificate of merit unless the plaintiff has "been given
                written and specific notice of, and an opportunity to address and correct,
                the alleged defects and insufficiencies." Hinchman, 618 S.E.2d at 394-95.
                Thus, even the states with the most exacting requirements ensure that
                medical malpractice plaintiffs are given an opportunity to amend or cure
                their claims so that only baseless and frivolous claims are excluded. Given
                that NRS 41A.071—unlike the statute in Texas—requires dismissal for
                noncompliance with the affidavit-of-merit requirement, Washoe Med. Ctr.,
                122 Nev. at 1305, 148 P.3d at 795, we conclude that such a harsh
                interpretation would unreasonably deny injured plaintiffs the opportunity
                to seek redress against negligent parties.



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                  stated that upon Max's initial arrival at Summerlin Hospital, Zbiegien
                  and Lovera treated and dressed Max's finger, and that Zbiegien and a Doe
                  nurse examined and treated Max's finger on the Zohars' second trip to
                  Summerlin Hospital. When these allegations are read together with Dr.
                  Bentley's chronological description of Max's treatment and his opinion
                  that "the medical staff in the emergency department of Summerlin
                  Hospital Medical Center breached the standard of care in their treatment
                  of Max Zohar through the inappropriately tight application of a wound
                  dressing and/or bandage," it is clear that Zbiegien, Lovera, and the
                  EmCare entities received sufficient notice of the nature and basis of the
                  medical malpractice claims against them, and that the district court had
                  sufficient information to determine whether the action should be allowed
                  to proceed. 7
                                                  CONCLUSION
                                  We conclude that courts should read a medical malpractice
                  complaint and the plaintiffs NRS 41A.071 expert affidavit together when
                  determining whether the affidavit satisfies the requirements of NRS
                  41A.071. Thus, an expert affidavit of merit that fails to specifically name
                  allegedly negligent defendants may still comply with NRS 41A.071 as to
                  the unnamed parties if it is clear that the defendants and the court
                  received sufficient notice of the nature and basis of the medical
                  malpractice claims. As a result, we conclude that the district court erred
                  in finding that Dr. Bentley's expert affidavit was inadequate to support
                  the Zohars' allegations of medical malpractice against respondents. We

                         7 1n
                           light of this disposition, we need not address the parties'
                  remaining arguments.



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                     therefore reverse the district court's order of dismissal and remand this
                     case for further proceedings consistenkw,ith.this, opinion
                                                                      /,

                                                                                    C.J.
                                                          Gibbons

                     We concur:


                       I &hit Like                   J.
                     Pickering


                                                     J.
                     Hardesty



                     Parraguirre


                                                     J.
                     Douglas




                                                     J.




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