                                   129 Nev., Advance Opinion 25
       IN THE SUPREME COURT OF THE STATE OF NEVADA


TAMMY EGAN,                                         No. 56674
Appellant,
vs.
GARY CHAMBERS, DPM, AN
INDIVIDUAL; AND SOUTHWEST
                                                        FILE
MEDICAL ASSOCIATES, INC., A                              APR 2 5 2013
NEVADA CORPORATION,
Respondents.



            Appeal from a district court order dismissing a professional
negligence action. Eighth Judicial District Court, Clark County; Jessie
Elizabeth Walsh, Judge.
            Reversed and remanded.


Brent D. Percival, Esq., P.C., Las Vegas,
for Appellant.

Hutchison & Steffen, LLC, and Michael K. Wall and L. Kristopher Rath,
Las Vegas,
for Respondents.



BEFORE THE COURT EN BANC.

                                 OPINION


By the Court, CHERRY, J.:
            In this opinion, we reexamine whether NRS 41A.071's
affidavit-of-merit requirement applies to claims for professional
negligence. 1 In 2009, we considered the identical question in Fierle v.
Perez, 125 Nev. 728, 219 P.3d 906 (2009). Despite the plain language of
NRS 41A.071, we concluded in Fierle that professional negligence actions
were subject to the affidavit-of-merit requirement. Id. at 736-38, 219 P.3d
at 911-12. While we acknowledge the important role that stare decisis
plays in Nevada's jurisprudence, we recognize that we broadened the
scope of NRS 41A.071, expanding the reach of the statute beyond its
precise words. We now conclude that professional negligence actions are
not subject to the affidavit-of-merit requirement based on the
unambiguous language of NRS 41A.071 and, consequently, we overrule, in
part, our holding in Fierle.      The district court therefore erred when it
dismissed appellant's professional negligence complaint for lack of a
supporting affidavit of merit. Accordingly, we reverse the district court's
order and remand this matter to the district court for further proceedings.
                   FACTS AND PROCEDURAL HISTORY
              In 2007, appellant Tammy Egan visited a physician
concerning ongoing pain she was having in her left foot and was referred
to respondent Gary Chambers, a doctor of podiatric medicine, for surgery.

      1 NRS   41A.071 provides that:

                    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.
(Emphasis added to reflect the omission of professional negligence.)



                                        2
                Chambers, who was employed by respondent Southwest Medical
                Associates, Inc. (SMA), performed several surgical procedures on Egan's
                left foot and ankle in July 2007. Following the operation, Egan
                complained of darkened skin and blisters around the surgical areas, and
                after several follow-up visits, Chambers discovered gangrene in Egan's left
                foot. Chambers referred Egan to another podiatric physician, who
                ultimately performed three additional surgical operations on her foot in
                August and September 2007, including amputating the left great toe and
                part of the left foot. Following the procedures and follow-up treatment,
                the podiatric physician concluded that Egan would suffer permanent
                disability and would not be able to return to her previous employment as a
                waitress.
                            In July 2008, Egan filed a district court complaint for
                professional negligence against Chambers and SMA. 2 Although Egan's


                      2 Egan's complaint asserted causes of action for both professional
                negligence and breach of contract. However, because both causes of action
                were based on Chambers' alleged "failure to perform medical care which
                rose to the level of compliance with the established care owed to [Egan],"
                her entire complaint in fact sounded in tort, and issues regarding NRS
                41A.071's affidavit requirement thus apply equally to both causes of
                action. See State Farm Mut. Auto. Ins. Co. v. Wharton, 88 Nev. 183, 186,
                495 P.3d 359, 361 (1972) (noting that, in determining whether an action is
                based on contract or tort, this court looks at the nature of the grievance to
                determine the character of the action, not the form of the pleadings);
                Stafford v. Schultz, 270 P.2d 1, 6 (Cal. 1954) (stating that a patient's
                action for injuries based on the physician's negligent treatment of the
                patient is an action sounding in tort and not upon a contract); Christ v.
                Lipsitz, 160 Cal. Rptr. 498, 501 (Ct. App. 1979) ("It is settled that an
                action against a doctor arising out of his negligent treatment of a patient
                is an action sounding in tort and not one based upon a contract." (quoting
                Bellah v. Greenson, 146 Cal. Rptr. 535, 542 (Ct. App. 1978))).

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                complaint alleged that Chambers' medical treatment fell beneath the
                standard of care expected of a practicing podiatric physician in Clark
                County, podiatrists are not considered "physicians" under NRS Chapter
                41A for medical malpractice claim purposes, and thus, Egan filed the
                complaint without a supporting NRS 41A.071 affidavit of merit.
                Subsequently, Egan filed an amended complaint, also without a
                supporting affidavit of merit.
                            While Egan's case was pending before the district court, this
                court issued its decision in Fierle concluding that an affidavit of merit is
                required under NRS 41A.071 for both medical malpractice and
                professional negligence complaints, including when claims based on
                medical malpractice and professional negligence are asserted against a
                professional medical corporation. Fierle, 125 Nev. at 734-36, 737-38, 219
                P.3d at 911, 912. This court concluded, therefore, that, like medical
                malpractice complaints, professional negligence complaints filed without a
                supporting affidavit of merit were void ab initio and must be dismissed.
                Id. at 741, 219 P.3d at 914.
                            Relying on Fierle, Chambers and SMA3 moved to dismiss
                Egan's complaint in February 2010. The district court granted the motion
                and dismissed Egan's complaint without prejudice in July 2010. At that
                point, absent the availability of some type of equitable relief, Egan
                admittedly was unable to file a new complaint because the statute of




                      3As  there are no allegations that SMA is a hospital, the claims
                against SMA also do not fall within the definition of "medical malpractice."
                See NRS 41A.009 (including hospitals and their employees in the
                definition of medical malpractice).

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                limitations for her claims had expired. See NRS 41A.097(2). This appeal
                followed.
                                              DISCUSSION
                            Applying de novo review, we take this opportunity to
                reconsider whether NRS 41A.071's affidavit-of-merit requirement applies
                to professional negligence claims.       See I. Cox Constr. Co. v. CH2
                Investments, 129 Nev. , , 296 P.3d 1202, 1203 (2013) (holding that
                this court reviews questions of statutory construction de novo). When a
                statute is clear on its face, we will not look beyond the statute's plain
                language. Wheble v. Eighth Judicial Dist. Court, 128 Nev. „ 272
                P.3d 134, 136 (2012); Beazer Homes Nev., Inc. v. Eighth Judicial Dist.
                Court, 120 Nev. 575, 579-80, 97 P.3d 1132, 1135 (2004).
                            NRS 41A.071 provides that the district court shall dismiss,
                without prejudice, actions for "medical malpractice or dental malpractice"
                filed without an affidavit of merit. The plain language of NRS 41A.071
                makes no mention of professional negligence. NRS 41A.071 refers
                expressly to "medical malpractice," which in turn is defined as pertaining
                to physicians, hospitals, and hospital employees. NRS 41A.009.
                "Physician" is defined as a person licensed under NRS Chapters 630 or
                633. NRS 41A.013. Podiatrists are not licensed pursuant to NRS
                Chapters 630 or 633; rather, they are licensed pursuant to NRS Chapter
                635. As such, NRS 41A.071 does not, by its plain terms, apply to Egan's
                claims against her podiatrist. See Morrow v. Eighth Judicial Dist. Court,
                129 Nev. „ 294 P.3d 411, 414 (2013) ("[I]n the face of that plain
                language, we cannot come to another construction.").
                            Although stare decisis plays a critical role in our
                jurisprudence, ASAP Storage, Inc. v. City of Sparks,      123 Nev. 639, 653,

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                173 P.3d 734, 743 (2007), our reading of NRS 41A.071 reveals no statutory
                ambiguity as previously suggested in Fierle. We now recognize that our
                prior decision conflated "medical malpractice" with "professional
                negligence" when we read NRS 41A.071 to apply to all professional
                negligence claims. In so doing, our construction of NRS 41A.071
                unnecessarily reached beyond its plain language. Applying Fierle to
                professional negligence claims would be substantially inequitable and
                contrary to the plain language of the statute. As a result of Fierle's flawed
                application, we must overrule, in part, our holding in that case and clarify
                that NRS 41A.071 only applies to medical malpractice or dental
                malpractice actions, not professional negligence actions.         See ASAP
                Storage, 123 Nev. at 653, 173 P.3d at 743 (stating that "[1] egal precedents
                of this court should be respected until they are shown to be unsound in
                principle' (alteration in original) (quoting Grotts v. Zahner, 115 Nev. 339,
                342, 989 P.2d 415, 417 (1999) (Rose, C.J., dissenting)));           Payne v.
                Tennessee, 501 U.S. 808, 827 (1991) (when governing decisions prove to be
                "unworkable or are badly reasoned," they should be overruled). Therefore,
                Egan's professional negligence action against Chambers and SMA must
                proceed on the merits.
                                               CONCLUSION
                            For the reasons articulated above, we hold that the plain
                language of NRS 41A.071 indicates that professional negligence actions
                are not subject to its affidavit-of-merit requirement, and to the extent that
                our decision in Fierle v. Perez, 125 Nev. 728, 219 P.3d 906 (2009), conflicts




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with this holding, we overrule it. Accordingly, we conclude that the
district court erred when it dismissed Egan's professional negligence claim
against Chambers and SMA for lack of a supporting affidavit of merit. 4
We reverse the district court's dismissal order and remand this case for
further proceedings consistent with this opinion.



                                                                 J.

We concur:


                               C.J.




                               J.
Gibbons


  /C---\                       J.
Hardesty


                                      •
  cL                           J.
Parra guirre


                               J.




                               J.
Saitta

         4 1n
         light of our resolution of this appeal, we need not reach Egan's
remaining contentions.




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