                      IN THE SUPREME COURT OF THE STATE OF NEVADA


                SUNIMERLIN HOSPITAL MEDICAL            No. 65403
                CENTER, LLC D/B/A SUMMERLIN
                HOSPITAL MEDICAL CENTER, A
                FOREIGN LIMITED LIABILITY
                COMPANY; (MW NEVADA IMAGING
                COMPANY, LLC D/B/A NEVADA
                IMAGING CENTERS, A DOMESTIC
                LIMITED LIABILITY COMPANY;
                THOMAS ROSS TETZLAFF, M.D.,
                INDIVIDUALLY; BRIAN THONG
                VOVAN, M.D., INDIVIDUALLY; BARRY
                                                          FILED
                STEPHEN FRANK, M.D.,                       JAN 2 2 2016
                INDIVIDUALLY; GIOIA &                     TRACIE K. UNDEMAN
                                                       CLERK OF SUPREME COURT
                ASSOCIATES, LTD. D/B/A                bY
                CHILDREN'S ACUTE CARE A/K/A                 DEPUTY CLERK

                CHILDREN'S ACUTE CARE, INC.; 'YU
                TIAN, M.D., P.C., A DOMESTIC
                PROFESSIONAL CORPORATION; AND
                YU TIAN, M.D., INDIVIDUALLY,
                Petitioners,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                CLARK; AND JERRY A. WIESE, II,
                Respondents,
                and
                NYIESHA COSTA, INDIVIDUALLY
                AND AS NATURAL MOTHER OF
                NIKHELAIS COSTA, A MINOR CHILD,
                DECEASED; AND THE ESTATE OF
                NIKHELAIS COSTA, DECEASED,
                Real Parties in Interest.


                    ORDER GRANTING PETITION FOR WRIT OF MANDAMUS


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                                    This is an original petition for writ of mandamus or
                        prohibition challenging a district court order ruling a statute
                        unconstitutional in a medical malpractice and professional negligence
                        action.
                                    Petitioners petition this court for a writ of mandamus, or
                        alternatively, a writ of prohibition, 1 directing the district court to vacate a
                        portion of its order finding that the $350,000 cap on noneconomic damages
                        in NRS 41A.035 is unconstitutional. Petitioners argue that NRS 41A.035
                        does not violate a plaintiffs right of trial by jury, that NRS 41A.035
                        applies on a per-incident basis, and that medical malpractice actions
                        against hospitals are "professional negligence" actions subject to NRS
                        41A.035.
                                    Consistent with our recent holding in Tarn v. Eighth Judicial
                        Dist. Court, 131 Nev., Adv. Op. 80, 358 P.3d 234 (2015), we grant the
                        petition and instruct the clerk of this court to issue a writ of mandamus



                               P`A writ of mandamus is available to compel the performance of an
                        act that the law requires as a duty resulting from an office, trust, or
                        station or to control an arbitrary or capricious exercise of discretion."
                        Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d
                        484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist.
                        Court, 124 Nev. 193, 197, 179 P.3d 556,558 (2008)); NRS 34.160. A writ of
                        prohibition is applicable when a district court acts "without or in excess of
                        [its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs., LLC v.
                        Eighth Judicial Din. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249
                        (2012). Because the district court had jurisdiction to hear and decide the
                        issue at hand, we treat this petition as one of mandamus. See Goicoechea
                        v. Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141
                        (1980) (explaining that we will not issue a writ of prohibition "if the court
                        sought to be restrained had jurisdiction to hear and determine the matter
                        under consideration").


SUPREME COURT
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                instructing the district court to vacate its order and to conduct further
                proceedings consistent with this court's holding in Tam. 2
                             It is so ORDERED.



                                                    Parraguirre


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                      2 We note that Summerlin qualifies as a hospital under the definition
                of "medical malpractice" before it was repealed, the definition of
                ‘`professional negligence," and the definition of a "provider of health care."
                See NRS 41A.009 (1989); NRS 41A.015; NRS 41A.017.


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                 cc: Hon. Jerry A. Wiese, District Judge
                      Law Office of Arthur W. Tuverson
                      John H. Cotton & Associates, Ltd.
                      Hall Prangle & Schoonveld, LLC/Las Vegas
                      Mandelbaum, Ellerton & Associates
                      Carroll, Kelly, Trotter, Franzen, & McKenna & Peabody
                      Eglet Prince
                      Robert S. Peck
                      Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
                      Eighth District Court Clerk




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