                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                   SOUTHERN NEVADA ADULT                                   No, 67931
                   MENTAL HEALTH SERVICES;
                   CHELSEA SZKLANY; MICHAEL
                   WILLDEN; RICHARD WHITLEY; LEON
                   RAVIN, M.D.; ANURAG GUPTA, M.D.;
                   AND KYLE DEVINE,
                                                                           FILE
                   Petitioners,                                             MAY 1 9 2016
                   vs.
                   THE EIGHTH JUDICIAL DISTRICT
                   COURT OF THE STATE OF NEVADA,
                   IN AND FOR THE COUNTY OF
                   CLARK; AND THE HONORABLE
                   VALERIE ADAIR, DISTRICT JUDGE,
                   Respondents,
                   and
                   JAMES FLAVY COY BROWN,
                   Real Party in Interest.

                                         ORDER DENYING PETITION

                               This is an original petition for a writ of mandamus or
                   prohibition challenging a district court order denying a motion to dismiss
                   for failure to attach an NRS 41A.071 medical malpractice expert affidavit
                   to a complaint.
                                On August 25, 2014, real party in interest, James Brown,
                   filed a class action complaint for negligence, professional negligence, gross
                   negligence, negligence per se, breach of fiduciary duty, tortious breach of
                   fiduciary duty, and negligent hiring, supervision and training. Brown
                   asserted these claims against the petitioners who were public officials and
                   various hospital administrators, physicians, social workers, and health
                   professionals associated with Southern Nevada Adult Mental Health
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                Services, which operated the Rawson-Neal Psychiatric Hospital (Rawson-
                Neal). Brown and the people he seeks to represent were former
                psychiatric patients at Rawson-Neal. Brown alleges that Rawson-Neal
                involuntarily discharged patients and sent them out of the state, with no
                plan for follow-up treatment once they arrived at their destination. Brown
                claims these patients were provided with prepaid bus tickets, medicated
                with powerful anti-psychotic/tranquilizing drugs before they were
                discharged, and physically escorted to taxis bound for the Greyhound Bus
                Station in Las Vegas.
                               On December 9, 2014, Rawson-Neal filed a motion to dismiss.
                We do not have the briefing on the motion to dismiss in the record on
                appeal but it appears that Rawson-Neal argued that NRS 41A.071
                required the district court to dismiss the case without prejudice because
                Brown did not attach a medical affidavit to his complaint. On January 28,
                2015, the district court held a hearing on the motion and determined that
                a claim of professional negligence against a physician is medical
                malpractice and thus, an affidavit is required. Rawson-Neal requested
                that the district court dismiss the entire complaint without prejudice, but
                the court declined. Instead, the "[c]ourt suggested in an abundance of
                caution [Brown's council] should get the affidavit." At the end of the
                hearing, the court stated "its understanding that the Plaintiff will be
                amending the complaint to allege medical malpractice, provide an
                affidavit."
                              On February 11, 2015, the district court entered a minute
                order denying the motion to dismiss and permitting Brown to amend his


                      1 The   record only included the minutes from the hearing.

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                complaint. Brown had already filed an amended complaint with an
                affidavit on February 10, 2015, the day before the statute of limitations
                ran. The amended complaint added a claim of medical malpractice and
                conspiracy, but did not eliminate any of the other claims made in the
                original complaint. Rawson-Neal then filed the instant writ.
                              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." NRS
                34.160. On the other hand, a writ of prohibition restrains the proceedings
                of the district court, if "such proceedings are without or in excess of the
                jurisdiction of such tribunal."   Int'l Game Tech., Inc. v. Second Judicial
                Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008); NRS 34.320.
                Writ relief may not be used "to control the judicial discretion of the district
                court unless discretion is manifestly abused or is exercised arbitrarily or
                capriciously." State v. Eighth Judicial Dist. Court, 118 Nev. 140, 147, 42
                P.3d 233, 237-38 (2002) (internal quotation omitted). It "is an
                extraordinary remedy that will only issue at the discretion of this court."
                Id. at 146, 42 P.3d at 237. A writ will "not issue if the petitioner has a
                plain, speedy, and adequate remedy in the ordinary course of law."
                Wheble v. Eighth Judicial Dist. Court, 128 Nev. 119, 122, 272 P.3d 134,
                136 (2012).
                              This court generally declines to consider writ petitions that
                challenge district court denials of motions to dismiss.    See State, 118 Nev.
                at 147, 42 P.3d at 238. Still, this court may hear such petitions when: "(1)
                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

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                      judicial economy and administration militate in favor of granting the
                      petition." Id. However, "Mew such writ petitions are granted and most
                      are summarily denied." Beazer Homes Nev., Inc. v. Eighth Judicial Dist.
                      Court, 120 Nev. 575, 579, 97 P.3d 1132, 1134 (2004).
                                   Under the first prong of the test, we decline to consider this
                      writ petition. Rawson-Neal argues that under the "clear language of NRS
                      41A.071 and the applicable case law, the State Defendants' motion to
                      dismiss should have been granted once the District Court concluded that
                      the claims constituted medical malpractice." NRS 41A.071 states, in
                      relevant part, "[i]f an action for medical malpractice . . . is filed in the
                      district court, the district court shall dismiss the action, without prejudice,
                      if the action is filed without af ] [medical expert] affidavit."   Washoe Med.
                      Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1302, 148 P.3d 790, 793
                      (2006) This court has decided that "a medical malpractice complaint filed
                      without a supporting medical expert affidavit is void ab initio."        Id. at
                      1304, 148 P.3d at 794. This court explained that void ab initio meant that
                      the complaint has no force and effect, does not legally exist, and therefore,
                      cannot be amended. Id.
                                  As such, if the district court determined that all the claims in
                      the complaint were for medical malpractice, under Washoe Medical Center,
                      the district court would have been obligated to dismiss the complaint as
                      void ab initio. Yet, from the limited record before us, that does not appear
                      to be the situation in this case. The record only demonstrates that the
                      district court determined that Brown's professional negligence claim
                      against the Rawson-Neal physicians was for medical malpractice and
                      thus, needed a medical malpractice affidavit.     Washoe Medical Center did
                      not clearly require the district court to dismiss the whole complaint

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                 because it found that one of Brown's claims within the complaint was for
                 medical malpractice, while making no findings as to the other claims.'
                 Indeed, the complaint in Washoe Medical Center was for negligence during
                 a surgical procedure and this court did not discuss, and it does not appear
                 that the complaint asserted, any other potential non-medical malpractice
                 claims.   See id. at 1301, 148 P.3d at 792. Additionally, the amended
                 complaint with the supporting affidavit in Washoe Medical Center was
                 filed after the statute of limitations had expired, making it unclear
                 whether a complaint may be amended to add a medical malpractice claim
                 before the statute of limitations has run, as is the situation here. 3 Id.; see
                 Baxter v. Dignity Health, 131 Nev., Adv. Op. 76, 357 P.3d 927, 931
                 (reading together the plaintiffs complaint and affidavit of merit, filed a
                 day after the complaint, in part because the defendants were in "no worse
                 position" than if the plaintiff had attached the affidavit to the complaint).
                             The interest of sound judicial economy also militates against
                 writ relief at this point in this case. As noted, the district court expressed
                 no opinion on whether Brown's other negligence claims were for medical
                 malpractice and we decline to do so in the first instance. The "distinction



                      'Brown also brought his professional negligence cause of action
                 against a hospital administrator and other professionals at Rawson-Neal.
                 The district court did not decide whether those claims fell under the
                 medical malpractice statute.

                       3 Moreover, it is difficult for this court to conclude that the district
                 court manifestly abused its discretion or exercised it in an arbitrary and
                 capricious manner by failing to decide whether each cause of action in
                 Brown's complaint was for medical malpractice. The motion practice for
                 the motion to dismiss was not included in the record, so this court does not
                 know the content of Rawson-Neal's argument to the district court.

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                    between medical malpractice and negligence claims is subtle [and]
                    differentiating between the two types of claims depends heavily on the
                    facts of each individual case."   Dawkins v. Union Hasp. Dist., 758 S.E.2d
                    501, 504 (S.C. 2014). Most of the allegations in the complaint revolved
                    around the discharge of Brown and the failure of Rawson-Neal to develop
                    or implement proper discharge policies. Yet, we have hardly any facts on
                    the process of discharging Brown, how Rawson-Neal formulated its
                    discharge policies, and whether and to what extent non-medical
                    professionals were involved. Nothing prohibits Rawson-Neal from
                    bringing a motion for summary judgment when the record is more
                    developed and challenging that order by writ, or proceeding through the
                    normal appeals process. For these reasons, we decline to intervene by
                    extraordinary writ at this point in the proceedings and, we
                                ORDER the petition DENIED.


                                            A WI cn.
                                            Parraguirre


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                                                               Saitta



                    Gibbons                                    Pickering




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                       cc:   Hon. Valerie Adair, District Judge
                             Attorney General/Carson City
                             Attorney General/Las Vegas
                             Allen Lichtenstein
                             Staci J. Pratt
                             Eighth District Court Clerk




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