                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                 GOLNAZ ALEMI, M.D.; AND CARMEN                        No. 66917
                 LAFIA, M.D.,
                 Petitioners,
                 vs.
                 THE EIGHTH JUDICIAL DISTRICT
                 COURT OF THE STATE OF NEVADA,                             FILED
                 IN AND FOR THE COUNTY OF
                                                                           JAN 0 7 2016
                 CLARK; AND THE HONORABLE
                                                                         TR CIE K LNDFEIAN
                 NANCY L. ALLF, DISTRICT JUDGE,                       CLERK r SUPREME COURT

                 Respondents,                                         EY
                                                                           DEPUTY
                 and
                 TERESA RAMIREZ,
                 Real Party in Interest.

                       ORDER GRANTING PETITION FOR WRIT OF MANDAMUS

                             This is an original petition for a writ of mandamus challenging
                 a district court order granting a motion to amend the complaint and
                 affidavit in a medical malpractice action.
                                               BACKGROUND
                             Real party in interest Teresa Ramirez filed a complaint for
                 medical malpractice on July 15, 2014, naming Lawrence Shaw, M.D.;
                 Golnaz Alemi, M.D.; Carmen Lafia, M.D.; and University Medical Center
                 of Southern Nevada' as defendants. Ramirez alleged that the defendants
                 negligently performed her cesarean section, causing ureteral damage. She
                 attached to the complaint an affidavit from a medical doctor that did not


                        IRamirez later stipulated to dismiss University Medical Center from
                 the action.


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                  separately name student doctors Alemi and Lafia as parties responsible
                  for the alleged conduct.
                               Thereafter, Drs. Alemi and Lafia filed a motion to dismiss the
                  complaint for failure to comply with NRS 41A.071 (2002). 2 The doctors
                  argued that the expert affidavit accused only Dr. Shaw of conduct that fell
                  below the standard of care. Thus, according to Drs. Alemi and Lafia, the
                  original complaint was void ab initio as to them, and the district court was
                  precluded from granting Ramirez leave to amend.
                               In response, Ramirez filed an opposition and counter-motion
                  to amend the complaint and affidavit. Ramirez claimed that because Drs.
                  Alemi and Lafia were resident physicians training under Dr. Shaw, their
                  duties were inseparable from Dr. Shaw's and they were implicated in Dr.
                  Shaw's actions. In the alternative, Ramirez requested leave to amend in
                  the interest of justice.
                               The district court read the complaint together with the
                  affidavit and found that they were insufficient to state a medical
                  malpractice claim under NRS 41A.071 (2002). The district court therefore
                  granted Drs. Alemi and Lafia's motion to dismiss, but also granted
                  Ramirez's counter-motion to amend the complaint and affidavit. Drs.
                  Alemi and Lafia filed the instant petition for a writ of mandamus.
                                                 DISCUSSION
                               "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."

                        2 NRS  Chapter 41A was amended in 2015 to specify the content
                  required in an expert affidavit. 2015 Nev. Stat., ch. 439, § 6, at 2527.


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                  Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 868-69, 124 P.3d 550,
                  552 (2005) (quoting NRS 34.160). "[W]e will exercise our discretion to
                  consider such a petition only when there is no plain, speedy and adequate
                  remedy in the ordinary course of law or there are either• urgent
                  circumstances or important legal issues that need clarification in order to
                  promote judicial economy and administration." Id. at 869, 124 P.3d at 552
                  (footnotes omitted) (internal quotations omitted). Generally, we "will not
                  entertain a writ petition challenging the denial of a motion to dismiss."
                  Buckwalter v. Eighth Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d
                  920, 921 (2010). However, if "the issue is not fact-bound and involves an
                  unsettled and potentially significant, recurring question of law," we may
                  consider the petition.   Id. We consider the instant writ petition because
                  the relevant facts are not in dispute and a recurring question is presented:
                  whether a district court may, pursuant to NRS 41A.071 (2002), grant
                  leave to amend a medical malpractice complaint and affidavit when the
                  affidavit is present, but deficient.
                               "The construction of a statute is a question of law subject to
                  review de novo." Beazer Homes Nev., Inc. v. Eighth Judicial Dist. Court,
                  120 Nev. 575, 579, 97 P.3d 1132, 1135 (2004) (internal quotation omitted).
                  NRS 41A.071 (2002) provides:
                              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.


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                 In Washoe Medical Center v. Second Judicial District Court, we held that
                 "a complaint that does not comply with NRS 41A.071 is void ab initio, it
                 does not legally exist and thus it cannot be amended." 3 122 Nev. 1298,
                 1304, 148 P.3d 790,794 (2006). We explained that "in requiring 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."     Baxter v. Dignity Health, 131 Nev., Adv. Op. 76, 357 P.3d
                 927, 930 (2015) (discussing Washoe Medical Center).
                                Here, we agree with the district court that, even when reading
                 Ramirez's complaint together with the affidavit under Zohar v. Zbiegien,
                 130 Nev., Adv. Op. 74, 334 P.3d 402, 408 (2014), they failed to comply with
                 NRS 41A.071 (2002). In particular, the complaint and affidavit failed to
                 allege conduct of Drs. Alemi and Lafia that caused Ramirez's injuries.
                 They also did not set forth the applicable standard of care allegedly
                 breached by the student doctors.           See NRS 41A.009 (2013) (defining
                 medical malpractice as "the failure of a physician . . . in rendering
                 services, to use the reasonable care, skill or knowledge ordinarily used
                 under similar circumstances"). Due to the failure of the complaint and


                       3 We  note that although dictum of Borger v. Eighth Judicial District
                 Court, 120 Nev. 1021, 1029-30, 102 P.3d 600, 606 (2004) anticipates
                 allowing amendments, our more recent decision in Washoe Medical Center,
                 122 Nev. at 1304, 148 P.3d at 794, is controlling. See Vegas Franchises,
                 Ltd. v. Culinary Workers Union, Local No. 226, 83 Nev. 422, 424, 433 P.2d
                 263, 265 (1967) ("Seldom is stare decisis appropriately applied to
                 dictum.").



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                 affidavit to allege a standard of care and conduct attributable to Drs.
                 Alemi and Lafia, NRS 41A.071's policy of ensuring that a medical expert
                 has first validated the claim is not demonstrated. For these reasons, the
                 complaint and affidavit were noncompliant. Thus, they were void ab initio
                 and the district court was required to dismiss without leave to amend.
                 Accordingly, we
                             ORDER the petition GRANTED AND DIRECT THE CLERK
                 OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
                 district court to dismiss the complaint as to Drs. Alemi and Lafia.




                                                       CLIA                       , C.J.
                                                     Parraguirre


                                                    _LLseteS,
                                                     Hardesty


                                                                                       J.



                                                                                       J.
                                                    Saitta


                                                             Atfeuds                   J.
                                                    Pickering




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                  CHERRY, J., with whom, GIBBONS, J., agrees, dissenting:
                              In this matter, it is our belief that the majority failed to
                  properly consider Zohar's directive to read the complaint with the
                  affidavit. It is our belief that since the complaint clearly provides the
                  names of Drs. Alemi and Lafia, the affidavit, although not sufficiently
                  identifying their actions, was sufficient.




                                                       Gibbons




                  cc:   Hon. Nancy L Allf, District Judge
                        Carroll, Kelly, Trotter, Franzen, & McKenna & Peabody
                        Brooks Hubley LLP
                        Eighth District Court Clerk




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