                                                         132 Nev., Advance Opinion 53
                              IN THE SUPREME COURT OF THE STATE OF NEVADA


                       HUMBOLDT GENERAL HOSPITAL;                            No. 65562
                       AND SHARON MCINTYRE, M.D.,
                       Petitioners,
                       vs.                                                           FILED
                       THE SIXTH JUDICIAL DISTRICT
                       COURT OF THE STATE OF NEVADA,                                 JUL 28 2016
                       IN AND FOR THE COUNTY OF                                 LE
                                                                                    T • E K.   LINDEMAN

                       HUMBOLDT; AND THE HONORABLE                             BY                         A
                                                                                        DE • i fY ERK
                       MICHAEL MONTERO, DISTRICT
                       JUDGE,
                       Respondents,
                        and
                       KELLI BARRETT,
                       Real Party in Interest.



                                   Original petition for a writ of mandamus challenging a district
                       court order denying a motion to dismiss.
                                   Petition granted.

                       Pollara Law Group and Dominique A. Pollara, Sacramento, California,
                       for Petitioners.

                       David Allen & Associates and David Allen, Reno,
                       for Real Party in Interest.




                       BEFORE THE COURT EN BANC.




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                                                  OPINION
                By the Court: HARDESTY, J.:
                              NRS 41A.071 requires that a medical expert affidavit be filed
                with "medical malpractice" claims.' Real party in interest Kelli Barrett
                filed a complaint without an expert affidavit against petitioners Humboldt
                General Hospital and Sharon McIntyre, M.D., that included a battery
                claim based on an alleged lack of informed consent. In this case, we
                determine whether a battery claim against a medical provider based on an
                allegation of lack of informed consent is subject to the NRS 41A.071
                medical expert affidavit requirement.
                              We conclude that allegations raising the scope of informed
                consent rather than the absence of consent to a medical procedure, even
                when pleaded as a battery action, constitute medical malpractice claims
                requiring a medical expert affidavit. Accordingly, because Barrett's
                complaint raises the scope of informed consent for the medical procedure,
                but does not allege a complete lack of consent, Humboldt and Dr.
                McIntyre's motion to dismiss Barrett's battery claim should have been
                granted. We thus grant the petition.
                                   FACTS AND PROCEDURAL HISTORY
                              Barrett had an intrauterine device (IUD) surgically implanted
                by Dr. McIntyre at Humboldt General Hospital. Approximately one year
                later, Barrett received a letter from Humboldt stating that the IUD was
                not approved by the Federal Drug Administration (FDA). Her IUD was


                      1 The  Legislature amended NRS 41A.071 during the 2015 legislative
                session. 2015 Nev. Stat., ch. 439, § 6, at 2527. Any discussion in this
                opinion related to this statute refers to the 2002 version of the statute in
                effect at the time real party in interest filed her complaint.

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                not FDA approved because it was shipped from Finland to a Canadian
                pharmacy rather than to a location in the United States. However, the
                implanted IUD was identical to FDA-approved IUDs and was
                manufactured at the same plant in Finland.
                            Barrett filed a complaint without a supporting medical expert
                affidavit alleging negligence and battery claims against Dr. McIntyre and
                Humboldt. In her negligence claim, Barrett alleged that Dr. McIntyre and
                Humboldt "had a duty to provide [her] with care, treatment, medications
                and medical devices consistent with state and federal law." And, in her
                battery claim, Barrett alleged that Dr. McIntyre and Humboldt "knew or
                reasonably should have known that. . . Barrett did not consent to the
                implantation in [her] body of said IUD which lacked FDA approval."
                            Dr. McIntyre and Humboldt moved to dismiss Barrett's
                complaint based on NRS 41A.071's requirement that an expert affidavit be
                filed with medical malpractice actions. The district court granted the
                motion to dismiss the negligence claim, finding that an expert affidavit
                was required, but denied the motion as to the battery claim, finding that
                "it does not appear beyond a doubt that" Barrett needed to include an
                affidavit with her battery claim. Dr. McIntyre and Humboldt then
                petitioned this court for a writ of mandamus directing the district court to
                dismiss Barrett's battery complaint under NRS 41A.071.
                                              DISCUSSION
                            Whether a claim under the informed consent doctrine must be
                pleaded as a tort action for negligence, rather than as one for battery, is
                an issue of first impression in Nevada. Because Barrett generally
                consented to the procedure performed, and the operative facts implicate
                the scope of informed consent, we conclude that Barrett's battery claim is

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                actually a medical malpractice claim requiring a medical expert affidavit
                under NRS 41A.071.
                Writ of mandamus
                             "Normally, this court 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), but we
                may do so when "(I) no factual dispute exists and the district court is
                obligated to dismiss an action pursuant to clear authority under a statute
                or rule; or (2) an important issue of law needs clarification and
                considerations of sound judicial economy and administration militate in
                favor of granting the petition," State v. Eighth Judicial Dist. Court, 118
                Nev. 140, 147, 42 P.3d 233, 238 (2002). Furthermore, this court may
                consider writ petitions that present matters of first impression that may
                be dispositive in the particular case.    Otak Nev., LLC v. Eighth Judicial
                Dist. Court, 129 Nev., Adv. Op. 86, 312 P.3d 491, 496 (2013).
                             Here, there is no factual dispute regarding the absence of an
                expert medical affidavit filed with the complaint. Further, this case
                presents an important issue of law concerning the right to pursue a
                battery claim in a medical malpractice action that implicates the scope of
                informed consent. Because this issue is likely to recur, as evidenced by
                other writ petitions filed with this court seeking similar relief, and may be
                dispositive of the pending case, we exercise our discretion to entertain the
                merits of this writ petition.
                Expert affidavit requirement in medical malpractice claims
                             The issues raised in this case present purely legal questions,
                primarily regarding statutory construction, so we conduct a de novo
                review.   Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334 P.3d 402, 405
                (2014). "If an action for medical malpractice. . . is filed in the district
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                  court, the district court shall dismiss the action, without prejudice, if the
                  action is filed without an affidavit." NRS 41A.071; 2 see also Washoe Med.
                  Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1306, 148 P.3d 790, 795
                  (2006) ("We conclude that when a plaintiff has failed to meet NRS
                  41A.071's expert affidavit requirement, the complaint is void ab initio and
                  must be dismissed, without prejudice, and no amendment to cure an NRS
                  41A.071 defect is allowed."). NRS 41A.009 (1985) defines "[m]edical
                  malpractice" as "the failure of a physician [or] hospital . . . in rendering
                  services, to use the reasonable care, skill or knowledge ordinarily used
                  under similar circumstances."
                              Initially, we examine whether informed consent issues
                  generally constitute medical malpractice, such that NRS 41A.071 requires
                  a medical expert affidavit to be filed with a complaint. Next, we consider



                        2 Many statutes in NRS Chapter 41A were amended during the 2015
                  legislative session. See 2015 Nev. Stat., ch. 439, §§ 1-13, at 2526-29. NRS
                  41A.071 now states, in pertinent part: "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."
                  (Emphasis added.) NRS 41A.015 defines "[p]rofessional negligence" as
                  "the failure of a provider of health care, in rendering services, to use the
                  reasonable care, skill or knowledge ordinarily used under similar
                  circumstances by similarly trained and experienced providers of health
                  care." The amended language does not apply here because the
                  amendments became effective after the district court entered its order in
                  this matter, and our reference to the statutes in this section are to those in
                  effect at the time of the cause of action. See 2015 Nev. Stat., ch. 439, § 13,
                  at 2529. However, we note that the Legislature repealed NRS 41A.009's
                  definition of "medical malpractice" and moved much of the operative
                  language to the "professional negligence" definition stated above. See NRS
                  41A.009 (1985); NES 41A.015 (2015); 2015 Nev. Stat., ch. 439, §§ 6, 12, at
                  2527, 2529.

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                 whether a battery claim can be maintained when the claim arises out of a
                 lack of consent.
                 Issues of informed consent typically constitute medical malpractice claims
                             NRS Chapter 41A governs medical malpractice actions in
                 Nevada. Within that statutory scheme, NRS 41A.110 establishes when
                 informed consent is conclusively given by a patient. As applicable here, a
                 licensed physician has conclusively obtained a patient's consent for a
                 medical procedure if a physician has explained in general terms, without
                 specific details, the procedure to be conducted. NRS 41A.110.
                             Furthermore, this court has previously recognized that
                 informed consent is generally a matter of medical malpractice. In
                 Bronneke v. Rutherford, while considering what standard of care governs
                 chiropractic informed consent cases, we concluded that "the professional
                 standard, requiring expert testimony as to the customary disclosure
                 practice, applies to chiropractors." 120 Nev. 230, 238, 89 P.3d 40, 46
                 (2004). Under the professional medical standard, "the physician must
                 decide whether the information is material and should be disclosed to the
                 patient." Id. at 233, 89 P.3d at 43. This standard imparts a duty upon the
                 physician to "disclose information that a reasonable practitioner in the
                 same field of practice would disclose . . . 1, and] the professional standard
                 must be determined by expert testimony regarding the custom and
                 practice of the particular field of medical practice."       Smith v. Cotter, 107
                 Nev. 267, 272, 810 P.2d 1204, 1207 (1991). As a result, we concluded that
                 "the failure to obtain a patient's informed consent is a malpractice issue."
                 120 Nev. at 238, 89 P.3d at 446.
                             Bronneke conforms to the general rule in the United States: "a
                 claim under the informed consent doctrine must be pled as a tort action for
                 negligence, rather than as one for battery or assault." Mole v. Jutton, 846
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                A.2d 1035, 1042 (Md. 2004); see also Cobbs v. Grant, 502 P.2d 1, 8 (Cal.
                1972) (adopting the majority position that "appears to be towards
                categorizing [the] failure to obtain informed consent as negligence"); Dries
                v. Gregor, 424 N.Y.S.2d 561, 564 (App. Div. 1980) ("We believe that
                medical treatment beyond the scope of a patient's consent should not be
                considered as an intentional tort or species of assault and battery. . .
                Informed consent claims usually require a medical expert affidavit, but
                claims that a treatment or procedure completely lacked patient consent do
                not
                            Barrett argues that insertion of the non-FDA approved IUD
                without her consent constitutes a true battery claim that does not require
                an expert medical affidavit. In Bronneke, we suggested that a battery
                claim may not exist when a question of informed consent is presented. 120
                Nev. at 234-35, 89 P.3d at 43 (concluding that because the patient
                impliedly consented to the treatment, allowing "an eleventh-hour
                amendment to the complaint to add a battery claim" would be futile).
                However, we recognize that when consent to a treatment or procedure is
                completely lacking, the justifications supporting a medical expert affidavit
                are diminished.


                      3 There    is a minority position where "[t]he earliest cases treated this
                as a matter of vitiating the consent, so that there was liability for battery."
                Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972) (internal quotations omitted).
                However, courts subsequently "began to, . . recognize[ ] that this was
                really a matter of the standard of professional conduct" and that "the
                action. . . is in reality one for negligence in failing to conform to the proper
                standard." Id. (third alteration in original). Some jurisdictions still
                maintain this distinction. See, e.g., Montgomery v. Bazaz-Sehgal, 798 A.2d
                742, 748 (Pa. 2002) ("[T]his Court has made clear on repeated occasions
                over a period of several decades that a claim based upon a lack of informed
                consent involves a battery. .").

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                                       "A battery is an intentional and offensive touching of a person
                         who has not consented to the touching," and "[i]t is well settled that a
                         physician who performs a medical procedure without the patient's consent
                         commits a battery irrespective of the skill or care used."   Conte v. Girard
                         Orthopaedic Surgeons Med. Grp. Inc., 132 Cal. Rptr. 2d 855, 859 (Ct. App.
                         2003). Courts typically only allow consent issues to proceed as battery
                         claims in "those circumstances when a doctor performs an operation to
                         which the patient has not consented. When the patient gives permission to
                         perform one type of treatment and the doctor performs another, the
                         requisite element of deliberate intentS to deviate from the consent given is
                         present." Cobbs, 502 P.2d at 8; see also Rice v. Bra/el, 310 P.3d 16, 19
                         (Ariz. Ct. App. 2013) (same); Shuler v. Garrett, 743 F.3d 170, 173 (6th Cir.
                         2014) (noting that in Tennessee "the threshold question in an informed
                         consent case is whether the patient's lack of information negated her
                         consent, the question in a medical battery case is much simpler: Did the
                         patient consent at all?"); Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995)
                         ("[T]he tort of battery is properly limited in the medical/dental setting to
                         those circumstances in which a health care provider performs a procedure
                         to which the patient has not consented."); Mole v. Jutton, 846 A.2d 1035,
                         1042 (Md. 2004) ("[A] claim under the informed consent doctrine must be
                         pled as a tort action for negligence, rather than as one for battery or
                         assault.").
                                       The distinction between informed consent and battery claims
                         is based on the concept that a doctor may show, in informed consent cases,
                         "that the disclosure he omitted to make was not required within his
                         medical community. However, expert opinion as to [the] standard [of care]
                         is not required in a battery count, in which the patient must merely prove

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                 failure to give informed consent and a mere touching absent consent."
                 Cobbs, 502 P.2d at 8; see also Bronneke, 120 Nev. at 238, 89 P.3d at 45-46
                 (stating that expert opinions are necessary in informed consent and
                 medical malpractice cases because juries, "as general laypersons, would
                 not know the customary practice in the profession"). Thus, when consent
                 is so lacking that a trier of fact may find that "the requisite element of
                 deliberate intent [for battery] . . . is present," id., the justification for an
                 affidavit is diminished because an expert's opinion setting forth the
                 standard of care and a good-faith basis for the action is unnecessary.
                 Zohar, 130 Nev., Adv. Op. 74, 334 P.3d at 405 ("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 " (internal quotations omitted)).
                             Accordingly, where a plaintiff claims not to have consented at
                 all to the treatment or procedure performed by a physician or hospital, we
                 conclude that such an allegation constitutes a battery claim and thus does
                 not invoke NRS 41A.017A's medical expert affidavit requirement.
                 However, consistent with conclusively obtaining a patient's consent under
                 NRS 41A.110, where general consent is provided for a particular
                 treatment or procedure, and a question arises regarding whether the scope
                 of that consent was exceeded, an expert medical affidavit is necessary.     See
                 Cobbs, 502 P.2d at 8.
                 Barrett's complaint
                             Barrett's complaint does not allege that the IUD procedure
                 completely lacked her consent Instead, she alleges in her battery claim
                 that she generally consented to the procedure but not to an IUD that



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                lacked FDA approval. See Brzoska, 668 A.2d at 1366 ("A patient's consent
                is not vitiated, however, when the patient is touched in exactly the way he
                or she consented."). As a result, her battery allegation presents a question
                that requires an expert's opinion regarding the standard of care and the
                scope of consent with respect to the use of an IUD device supplied by the
                same manufacturer but shipped in a way that lacked FDA approval.
                Accordingly, we conclude that Barrett's battery claim is actually a medical
                malpractice claim governed by Chapter 41A. Therefore, the district court
                erred by denying Humboldt's and Dr. McIntyre's motion to dismiss
                Barrett's battery claim because a medical expert affidavit was not filed
                with the claim. See Washoe Med. Ctr., 122 Nev. at 1306, 148 P.3d at 795.
                                               CONCLUSION
                              For the reasons set forth above, we grant Humboldt's and Dr.
                McIntyre's petition for extraordinary relief as to Barrett's battery claim
                and direct the clerk of this court to issue a writ of mandamus instructing
                the district court to set aside its earlier order, and grant Humboldt's and
                Dr. McIntyre's motion to dismiss in its entirety.




                                         Hardesty

                We concur:


                                           , C.J.
                Parraguirre


                                                           Saitta


                Gibbons
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