                                                      130 Nev., Advance Opinion 61
                          IN THE SUPREME COURT OF THE STATE OF NEVADA

                  EUGENE P. LIBBY, D.O.,                                  No. 59688
                  Petitioner,
                  vs.
                  THE EIGHTH JUDICIAL DISTRICT
                                                                                FILED
                  COURT OF THE STATE OF NEVADA,                                  MAY 2 9 2014
                  IN AND FOR THE COUNTY OF
                                                                               r ti A    K.    AN,
                  CLARK; AND THE HONORABLE
                  JERRY A. WIESE, DISTRICT JUDGE,                         BY            al ralak
                  Respondents,
                  and                                                                    111
                  MEGAN HAMILTON,
                  Real Party in Interest.

                              Original petition for a writ of mandamus challenging a district
                  court order denying a motion for summary judgment in a medical
                  malpractice action.
                              Petition granted.

                  Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E.
                  Dart, Las Vegas,
                  for Petitioner.

                  Potter Law Offices and Cal J. Potter, III, Las Vegas,
                  for Real Party in Interest.




                  BEFORE GIBBONS, C.J., PICKERING, HARDESTY, PARRAGUIRRE,
                  DOUGLAS, CHERRY and SAITTA, JJ.

                                                   OPINION

                  PER CURIAM:
                              Nevada's medical malpractice statute of limitations, NRS
                  41A.097(2), provides that an action against a health care provider must be
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                 filed within one year of the injury's discovery and three years of the injury
                 date. In the underlying district court action, Megan Hamilton brought a
                 claim for injury against Dr. Eugene Libby more than three years after she
                 discovered that a serious infection persisted in her knee, despite Dr.
                 Libby's surgical intervention. Dr Libby moved the district court for
                 summary judgment on the basis that Ms. Hamilton's claims were barred
                 by the three-year statute of limitation. The district court did not agree
                 and denied the motion for summary judgment, resulting in Dr. Libby
                 seeking this court's interlocutory review. According to Dr. Libby, NRS
                 41A.097(2) mandates that judgment be entered in his favor.
                             Based on the plain language of the statute, which establishes
                 "date of injury" as the outer boundary for claim accrual, we conclude that
                 NRS 41A.097(2)'s three-year limitation period begins to run when a
                 plaintiff suffers appreciable harm, regardless of whether the plaintiff is
                 aware of the injury's cause. Here, because Ms. Hamilton suffered
                 appreciable harm to her knee more than three years before she filed her
                 complaint, the district court was required to grant Dr. Libby's motion for
                 summary judgment. Accordingly, mandamus relief is appropriate in this
                 instance.

                                  FACTS AND PROCEDURAL HISTORY

                             On November 8, 2005, petitioner Eugene P. Libby, D.O., an
                 orthopedic surgeon, performed emergency surgery on real party in interest
                 Megan Hamilton's left knee. During a follow-up appointment on
                 November 28, 2005, Ms. Hamilton complained of pain in her knee that had
                 started one week earlier. Dr. Libby aspirated the knee, and then
                 hospitalized Ms. Hamilton and placed her on additional antibiotics. The
                 aspirated cultures from Ms. Hamilton's knee were sent for testing and
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                    tested positive for a bacterium known as Methicillin-Resistant
                    Staphylococcus Aureas (MRSA). At that point, an infectious disease
                    doctor was called in for consultation. After her discharge from the
                    hospital, Ms. Hamilton continued to be treated by the infectious disease
                    doctor for her infection and was seen by Dr. Libby several times to monitor
                    the healing of her knee. Ms. Hamilton's MRSA infection persisted.
                                On May 16, 2006, in an effort to combat the MRSA infection,
                    Dr. Libby performed another surgery on Ms. Hamilton's knee to remove
                    surgical screws and washers, which were apparently impeding the
                    antibiotics from surrounding and killing the MRSA infection. But the
                    infection continued, and on August 21, 2006, Dr. Libby lanced Ms.
                    Hamilton's knee and removed a yellowish substance. That was the last
                    date on which Dr. Libby treated Ms. Hamilton.
                                Thereafter, Ms. Hamilton had two additional surgeries on her
                    knee each performed by a different doctor. The first surgery took place on
                    December 15, 2006, and a "significant nonabsorbable suture nearly 4 cm
                    in length" was removed from Ms. Hamilton's knee. The second surgery
                    was performed on April 15, 2009, and a "large knotted permanent suture"
                    and a retained suture were removed from Ms. Hamilton's knee. These
                    latter sutures tested positive for the presence of MRSA.
                                On April 14, 2010, Ms. Hamilton filed a complaint against Dr.
                    Libby. Her complaint generally alleged that Dr Libby failed to remove
                    the suture material retained in her knee during the May 16, 2006,
                    surgery, that he knew or should have known that the suture material was
                    present and could or would carry MRSA, and that he failed to warn Ms.
                    Hamilton of the danger of leaving suture material in her knee, all in
                    breach of the standard of care, and resulting in her injuries.

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                                   As more than three years had passed between the end of Dr.
                       Libby's treatment of Ms. Hamilton and the filing of her complaint, Dr.
                       Libby filed in the district court a motion for summary judgment on the
                       basis that no genuine issues of material fact remained as to whether Ms.
                       Hamilton's claims were time-barred by NRS 41A.097(2)'s three-year
                       limitation. Ms. Hamilton opposed the motion and argued that her claims
                       were not time-barred because she was not aware after her December 15,
                       2006, surgery that the sutures removed from her knee were infected with
                       MRSA, and that she did not discover that fact until after her final surgery
                       in 2009. Ms. Hamilton further argued that the time for her to bring her
                       claims was tolled by NRS 41A.097(3) because Dr. Libby concealed the
                       existence of the MESA-infected sutures in her knee. The district court
                       denied Dr. Libby's motion for summary judgment, and this petition for
                       extraordinary writ relief followed.

                                                       DISCUSSION

                       Standard of review

                                   A writ of mandamus is available to compel the performance of
                       an act that the law requires or to control an arbitrary or capricious
                       exercise of discretion.   Int'l Game Tech., Inc. v. Second Judicial Dist.
                       Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). Whether to consider a
                       writ of mandamus is within this court's discretion.          Smith v. Eighth
                       Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). As a
                       general rule, this court will not exercise its discretion to consider petitions
                       for extraordinary writ relief that challenge district court orders denying
                       summary judgment, but an exception applies when "no disputed factual
                       issues exist and, pursuant to clear authority under a statute or rule, the

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                  district court is obligated to dismiss an action." Smith v. Eighth Judicial
                  Dist. Court, 113 Nev. 1343, 1345, 950 P.2d 280, 281 (1997).
                              This writ petition presents an issue of first impression
                  regarding when the three-year limitation period contained in NRS
                  41A.097(2) begins to run. Because the facts concerning the timeline of
                  events are not disputed, and because NRS 41A.097(2) provides clear
                  authority that a medical malpractice case "may not be commenced more
                  than 3 years after the date of injury," but the Nevada district courts have
                  inconsistently applied this statute, we elect to exercise our discretion to
                  consider the merits of this writ petition and to clarify this question of law.
                  See Wheble v. Eighth Judicial Dist. Court, 128 Nev. „ 272 P.3d 134,
                  136 (2012) (entertaining a writ petition when district courts might
                  contradictorily interpret and apply a statute).
                              "Statutory interpretation is a question of law that we review
                  de novo, even in the context of a writ petition." Inel Game Tech., 124 Nev.
                  at 198, 179 P.3d at 559. If the statute is clear on its face, we will not look
                  beyond its plain language. Wheble, 128 Nev. at , 272 P.3d at 136.
                  When giving a statute's terms their plain meaning, this court will consider
                  the statute's "provisions as a whole so as to read them in a way that [will]
                  not render words or phrases superfluous or make a provision nugatory."
                  S. Nev. Homebuilders Ass'n v. Clark Cnty., 121 Nev. 446, 449, 117 P.3d
                  171, 173 (2005) (internal quotation marks omitted).

                  NRS 41A.097(2)'s three-year limitation period begins to run once the
                  plaintiff suffers appreciable harm
                              NRS 41A.097(2) provides that "an action for injury. . . against
                  a provider of health care may not be commenced more than 3 years after
                  the date of injury or 1 year after the plaintiff discovers or through the use of
                  reasonable diligence should have discovered the injury, whichever occurs
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                 first        To resolve the novel issue presented by this writ petition—
                 determining the catalytic event by which the three-year statute of
                 limitation begins to run—we begin with the analytical foundation
                 established in previous cases in which we have interpreted NRS
                 41A.097(2)'s one-year limitation period. Winn v. Sunrise Hosp. & Med. Gtr.,
                 128 Nev. „ 277 P.3d 458, 461-62 (2012); Massey v. Litton, 99 Nev.
                 723, 726-28, 669 P.2d 248, 250-52 (1983). Beginning in Massey, we
                 explained that NRS 41A.097(2)'s one-year limitation period is a statutory
                 discovery rule that begins to run when a 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. at 726-
                 28, 669 P.2d at 250-52. We have further explained that the term "injury,"
                 as used in the one-year limitation period, encompasses a plaintiffs


                        'Dr. Libby acknowledges that NRS 41A.097(2)'s three-year
                 limitation period runs from the plaintiffs "date of injury," but he also
                 argues that the district court was obligated to dismiss Ms. Hamilton's
                 complaint because it was brought more than three years after he last
                 treated Ms. Hamilton. To the extent that Dr. Libby suggests that the
                 three-year limitation period is a statute of repose, we reject that
                 contention. A statute of repose "bar[s] causes of action after a certain
                 period of time, regardless of whether damage or an injury has been
                 discovered," Davenport v. Comstock Hills—Reno, 118 Nev. 389, 391, 46
                 P.3d 62, 64 (2002) (alteration in original) (quoting Allstate Ins. Co. v.
                 Furgerson, 104 Nev. 772, 775 n.2, 766 P.2d 904, 906 n.2 (1988)), whereas,
                 a statute of limitations "forecloses suit after a fixed period of time
                 following the occurrence or discovery of an injury." Id. NRS 41A.097(2)'s
                 three-year limitation period runs "3 years after the date of injury."
                 Because the three-year limitations period begins to run from the date of
                 the plaintiffs injury, and not from the last date the plaintiff was treated
                 by the health care provider, NRS 41A.097(2)'s three-year limitation period
                 is not a statute of repose, but is rather a statute of limitations. Davenport,
                 118 Nev. at 391, 46 P.3d at 64.

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                     discovery of damages as well as discovery of the negligent cause of the
                     damages. Id. at 728, 669 P.2d at 252. Later in Winn, we recognized that by
                     its terms, NRS 41A.097(2) requires a plaintiff to satisfy both the one-year
                     discovery rule and the three-year limitations period. Winn, 128 Nev. at ,
                     277 P.3d at 461. Thus, consistent with the statute's language, which
                     requires the plaintiff to commence her action within one year of discovering
                     her injury or within three years of the injury date, the analysis in Massey
                     and Winn recognize that commencement of a malpractice action is bound by
                     two time frames tied to two different events. In Massey and Winn, we
                     construed the one-year limitation period as requiring a plaintiff to be aware
                     of the cause of his or her injury, and while Ms. Hamilton asks us to apply
                     the same construction to the three-year limitation period, such a reading
                     would render NRS 41A.097(2)'s three-year limitation period irrelevant.     See
                     S. Nev. Homebuilders Ass'n, 121 Nev. at 449, 117 P.3d at 173. This we
                     decline to do.
                                    Instead, we turn to California for guidance, as its medical
                     malpractice statute of limitations is identical to Nevada's statute, 2 and its
                     courts have similarly concluded that a plaintiff does not need to be aware
                     of the cause of his or her injury for the three-year limitation period to
                     begin to accrue. Marriage & Family Ctr. v. Superior Court, 279 Cal. Rptr.
                     475, 478 (Ct. App. 1991). In so concluding, California courts have
                     reasoned that the purpose of the three-year limitation period is "to put an
                     outside cap on the commencements of actions for medical malpractice, to


                           2   See Cal. Civ. Proc. Code § 340.5 (West 2006) (stating "the time for
                     the commencement of action shall be three years after the date of injury or
                     one year after the plaintiff discovers, or through the use of reasonable
                     diligence should have discovered, the injury, whichever occurs first").

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                 be measured from the date of the injury, regardless of whether or when
                 the plaintiff discovered its negligent cause." Id. To that end, California
                 courts examining the issue before us now have held that a plaintiff must
                 have suffered appreciable harm as a result of the health care provider's
                 actions for the three-year limitation period to begin to run. See Larcher v.
                 Wanless, 557 P.2d 507, 512 n.11 (Cal. 1976) (concluding that the medical
                 malpractice statute of limitation does not begin to run until the patient
                 suffers some damage or injury); McNall v. Summers, 30 Cal. Rptr. 2d 914,
                 919 (Ct. App. 1994) (holding that the three-year limitations period begins
                 to accrue once there is a manifestation of the injury in some significant
                 way).
                             The California Court of Appeal reached the same conclusion in
                 a case involving in relevant way facts similar to those presented by this
                 writ petition. Garabet v. Superior Court, 60 Cal. Rptr. 3d 800 (Ct. App.
                 2007). In Garabet, the plaintiff patient underwent lasik eye surgery
                 performed by the defendant doctors and within weeks after the surgery
                 began to experience a number of adverse symptoms.          Id. at 802. The
                 plaintiff continued to receive treatment while experiencing ongoing vision
                 problems and did not file a complaint alleging medical malpractice until
                 more than six years after the surgery was performed.       Id. at 802-03. In
                 reviewing whether the plaintiffs complaint was barred by the three-year
                 statute of limitations, the Gara bet court concluded that although the
                 alleged wrongful act of performing the lasik surgery itself was not
                 sufficient to cause the statute to run, "once there is a manifestation of the
                 injury in some significant way, the three-year limitations period begins to
                 accrue."   Id. at 805. The court held that the three-year statute of
                 limitations started running when the plaintiff began to experience adverse

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                 symptoms after the surgery, and thus, his complaint was not timely filed.
                 Id. at 809 (stating that "severe damage which does not show itself (hidden
                 cancer, for instance) is not 'injury' until it is found by diagnosis. It does
                 not follow, however, that damage which has clearly surfaced and is
                 noticeable is not 'injury' until either the plaintiff or her physician
                 recognizes it." (internal quotation marks omitted)).
                             We adopt the reasoning of the California courts and conclude
                 that the Nevada Legislature tied the running of the three-year limitation
                 period to the plaintiffs appreciable injury and not to the plaintiffs
                 awareness of that injury's possible cause. We therefore determine that
                 NRS 41A.097(2)'s three-year limitation period begins to run once there is
                 an appreciable manifestation of the plaintiffs injury. We further conclude
                 that a plaintiff need not be aware of the cause of his or her injury in order
                 for the three-year limitations period to begin to run
                             Applying this interpretation of the statute to the present case,
                 we determine that the three-year statute of limitations for Ms. Hamilton's
                 claim against Dr. Libby began to run in August 2006 when tests showed
                 that the MRSA infection had persisted despite the May 2006 surgical
                 intervention. Because the purpose of the May 2006 surgery was to fight
                 the MRSA infection, the persistence of that infection three months later
                 was an appreciable and significant manifestation of Ms. Hamilton's injury,
                 even if she was not aware of the cause of the continued MRSA infection.
                 Ms. Hamilton's April 14, 2010, complaint was filed more than three years
                 from the date of her injury, and thus, the district court erred in denying
                 Dr. Libby's motion for summary judgment because no genuine issues of
                 material fact remain as to whether Ms. Hamilton's claims are barred by



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                  NRS 41A.097(2)'s commencement limitations. 3 Wood v. Safeway, Inc., 121
                  Nev. 724, 729, 121 P.3d 1026, 1029 (2005); Day v. Zubel, 112 Nev. 972,
                  977, 922 P.2d 536, 539 (1996) (stating that "[Ole appropriate accrual date
                  for the statute of limitations is a question of law only if the facts are
                  uncontroverted").

                  NRS 41A.097(3) did not toll the time for Ms. Hamilton to file her complaint
                              Ms. Hamilton argues that even if we conclude that her
                  complaint was filed beyond MRS 41A.097(2)'s three-year limitation period,
                  the time to bring her claim was tolled under NRS 41A.097(3) based on Dr.
                  Libby's concealment of the suture material remaining in her knee after the
                  May 2006 surgery. NRS 41A.097(3) provides that the limitation period to
                  bring a claim against a health care provider is "tolled for any period
                  during which the provider of health care has concealed any act, error or
                  omission upon which the action is based and which is known or through
                  the use of reasonable diligence should have been known to the provider of
                  health care." We have previously determined that MRS 41A.097(3)'s
                  tolling provision applies only when there has been an intentional act that
                  objectively hindered a reasonably diligent plaintiff from timely filing suit.
                  Winn, 128 Nev. at , 277 P.3d at 464.
                              Ms. Hamilton does not point to any evidence that Dr. Libby
                  concealed anything from her. She argues only that Dr. Libby "should have
                  known" that he left the sutures in her knee, but does not allege that Dr.
                  Libby performed any intentional act that hindered her from learning about

                        3 Because we conclude that Ms. Hamilton's claims against Dr. Libby
                  are barred by MRS 41A.097(2)'s three-year limitation period, we need not
                  address Dr. Libby's argument that Ms. Hamilton's claims are barred by
                  the one-year limitation period.

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                the sutures. We therefore conclude that Ms. Hamilton has failed to satisfy
                Winn's requirement that a plaintiff must prove that there was an
                intentional act of concealment by the health care provider, and thus, has
                not shown that there are any genuine issues of material fact remaining as
                to whether NRS 41A.097(3)'s tolling provision applied to toll the statute of
                limitation for her claim. 4
                              In addition, Ms. Hamilton argues that because NRS 41A.097
                was modeled after California's medical malpractice statute of limitations,
                the foreign-body tolling rule in California's statute should be applied to
                NRS 41A.097. Unlike NRS 41A.097, however, California's statute setting
                forth the statute of limitations for medical malpractice claims specifically
                enumerates "the presence of a foreign body" as a circumstance under
                which the three-year limitation period will be tolled. Cal. Civ. Proc. Code
                § 340.5 (West 2006). Because the Nevada Legislature has not codified a
                tolling provision similar to the "foreign body" exception in California's
                statute, we reject Ms. Hamilton's argument that California's codified
                foreign-body tolling exception should apply to her claim as we cannot read
                the language from California's foreign-body tolling rule into NRS 41A.097.




                      4 Ms. Hamilton argues that NRS 41A.097(3)'s tolling provision is
                "affected by the provisions of NRS 41A.100[(1)](a)," which creates a
                rebuttable presumption of negligence when a foreign substance was
                unintentionally left in the patient's body following surgery. But Ms.
                Hamilton does not provide any explanation as to how NRS 41A.100
                applies to NRS 41A.097(3)'s tolling provision, and we therefore do not
                address this argument. See Edwards v. Emperor's Garden Rest., 122 Nev.
                317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to consider
                issues that are not cogently argued or supported by relevant authority).

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                                                 CONCLUSION
                                Looking at the plain language of NRS 41A.097(2), we
                determine that the three-year limitation period to bring actions for injury
                or death against health care providers begins to run once there is injury
                from which appreciable harm manifests. We further conclude that a
                plaintiff need not be aware of the cause of his or her injury in order for the
                three-year limitation period to begin to run. Thus, because Ms.
                Hamilton's claims were filed more than three years from the date when
                tests showed her MRSA infection persisted despite Dr Libby's surgical
                intervention, and she has not shown that the statute of limitations was
                tolled under NRS 41A.097(3), we determine that the district court was
                required to grant summary judgment in Dr. Libby's favor and dismiss Ms.
                Hamilton's complaint.
                              We therefore grant the petition and direct the clerk of this
                court to issue a writ of mandamus directing the district court to grant Dr.
                Libby's motion for summary judgment and dismiss Ms. Hamilton's April
                14, 2010, complaint.


                                                                     C.J.
                                         Gibbons



                Pickering
                            A   0694        J.                  /
                                                            Hardesty
                                                                                       '   J.




                Parraguirre



                                                            Saitta

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