                                                   131 Nev., Advance Opinion 61)
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                STEPHEN TAM, M.D.,                                   No. 66346
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,                             FILED
                IN AND FOR THE COUNTY OF                                  OCT 01 2015
                CLARK; AND THE HONORABLE
                JERRY A. WIESE, DISTRICT JUDGE,                                  DEMAN
                                                                                  "ciLM.
                Respondents,                                                      die
                                                                                  CLERK
                   and
                SHERRY CORNELL, INDIVIDUALLY
                AND AS SPECIAL ADMINISTRATOR
                OF THE ESTATE OF CHARLES
                THOMAS CORNELL, JR.; KARLA
                CRAWFORD, AS SPECIAL
                ADMINISTRATOR OF THE ESTATE
                OF CHARLES THOMAS CORNELL,
                JR.; PATRICK N. CHAPIN, AS
                SPECIAL ADMINISTRATOR OF THE
                ESTATE OF CHARLES THOMAS
                CORNELL, JR.; AND ALFREDO
                HIBBART, PA,
                Real Parties in Interest.


                             Original petition for writ of mandamus challenging a district
                court order ruling a statute unconstitutional in a medical malpractice
                action.
                             Petition granted.


                Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E.
                Jordan, Las Vegas,
                for Petitioner.


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()) 194M    e                                                                n 2g -171-i
                Law Office of Bradley L. Booke and Bradley L. Booke, Las Vegas; Shandor
                S. Badaruddin, Missoula, Montana,
                for Real Parties in Interest Sherry Cornell, Karla Crawford, and Patrick
                N. Chapin.

                Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C.
                McBride, Las Vegas,
                for Real Party in Interest Alfredo Hibbart.




                BEFORE THE COURT EN BANC.


                                                  OPINION


                By the Court, HARDESTY, C.J.:
                            NRS 41A.035 (2004) limits the recovery of a plaintiffs
                noneconomic damages in a health-care provider's professional negligence
                action to $350,000. In this petition, we resolve three issues related to this
                statute: whether the statute violates a plaintiffs right to trial by jury,
                whether the cap applies separately to each cause of action, and whether
                the statute applies to medical malpractice actions. We conclude that the
                district court erred in finding the statute unconstitutional on the basis
                that it violates a plaintiffs constitutional right to trial by jury. We further
                conclude that the district court erred when it found the statutory cap
                applies per plaintiff and per defendant. And finally, we conclude that the
                district court erred when it found the statute only applies to professional
                negligence and not to medical malpractice. Accordingly, we grant the
                petition.



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                                                   FACTS
                             After the death of Charles Thomas Cornell, Jr, real party in
                 interest Sherry Cornell,' individually and as administrator of Charles's
                 estate, filed a complaint alleging, among other causes of actions,
                 professional negligence and medical malpractice. The complaint named
                 numerous defendants, including petitioner Stephen Tam, M.D.
                             Charles had several chronic medical conditions. However,
                 Cornell alleged that Charles died after receiving care from the defendants,
                 who discharged him without medications or prescriptions for essential
                 medications, including insulin, to treat his diabetes. Consequently, the
                 complaint alleged that Charles died because he did not have access to
                 insulin.
                             The district court dismissed several of the defendants and
                 numerous claims from the action, and the remaining claims for trial fell
                 "within the definition of medical malpractice as set forth in NRS 41A.009."
                 Relevant to this opinion is that Dr Tam filed an omnibus motion in limine
                 requesting in part that the plaintiffs' noneconomic damages be limited to
                 $350,000 as a whole pursuant to NRS 41A.035 (2004).
                             The district court denied this motion finding that NRS
                 41A.035 was unconstitutional, as it violated a plaintiffs constitutional
                 right to trial by jury. The district court also found that the cap in NRS
                 41A.035 does not apply to the case as a whole but that a separate cap




                        'Although Charles Cornell, Jr., died in 2010, all references to the
                 plaintiffs/real parties in interest, whether suing on Charles Cornell's
                 behalf or in their individual capacity, are hereinafter referred to
                 collectively as "Cornell."

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                applies to each plaintiff for each of the defendants. 2 In addition, the
                district court found that the cap in NRS 41A.035 did not apply to medical
                malpractice claims. 3 This petition for writ relief followed.
                Writ relief is appropriate
                              Dr. Tam petitions this court for a writ of mandamus
                compelling the district court to vacate its order denying his motion in
                limine "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.
                Generally, "[w]rit relief is not available. . . when an adequate and speedy
                legal remedy exists." Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.
                "While an appeal generally constitutes an adequate and speedy remedy
                precluding writ relief, we have, nonetheless, exercised our discretion to



                      2 The  Legislature has since amended NRS 41A.035 to clarify that the
                recovery for noneconomic damages is limited to $350,000, "regardless of
                the number of plaintiffs, defendants or theories upon which liability may
                be based." See 2015 Nev. Stat., ch. 439, § 3, at 2526. All further
                references to NRS 41A.035 in this opinion are based on the 2004 version of
                the statute.

                      3 As part of his motion in limine, Dr Tam also requested that he be
                allowed to introduce collateral source evidence pursuant to NRS 42.021.
                The district court denied this request, deeming NRS 42.021
                unconstitutional. Dr. Tam separately petitioned this court for a writ of
                mandamus on this denial.          Tam v. Eighth Judicial District Court
                (Cornell), Docket No. 66065. We resolve Docket No. 66065 separately from
                the petition now before the court.

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                intervene 'under circumstances of urgency or strong necessity, or when an
                important issue of law needs clarification and sound judicial economy and
                administration favor the granting of the petition."      Cote H. v. Eighth
                Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) (footnote
                omitted) (quoting State v. Second Judicial Dist. Court, 118 Nev. 609, 614,
                55 P.3d 420, 423 (2002)).
                            In this case, although an appeal from a final judgment
                appears to be an adequate and speedy remedy for the individual parties,
                resolving this writ petition could affect the course of the litigation and
                thus promote sound judicial economy and administration. Moreover, this
                petition raises an important legal issue in need of clarification involving
                public policy, which could resolve or mitigate related or future litigation.
                Accordingly, we exercise our discretion to entertain Dr. Tam's petition for
                writ of mandamus.
                The district court erred in finding NRS 41A.035 unconstitutional, as the
                statute does not violate the right of trial by jury
                             NRS 41A.035 provides that "[fin an action for injury or death
                against a provider of health care based upon professional negligence, the
                injured plaintiff May recover noneconomic damages, but the amount of
                noneconomic damages awarded in such an action must not exceed
                $350,000." The district court concluded that the statute violates the right
                of trial by jury because it takes a question of fact—the determination of
                damages—away from the jury.
                            "[T]his court reviews de novo determinations of whether a
                statute is constitutional."   Hernandez v. Bennett-Haron, 128 Nev., Adv.
                Op. 54, 287 P.3d 305, 310 (2012). "Statutes are presumed to be valid, and
                the challenger bears the burden of showing that a statute is
                unconstitutional. In order to meet that burden, the challenger must make
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                    a clear showing of invalidity." Silvar v. Eighth Judicial Dist. Court, 122
                    Nev. 289, 292, 129 P.3d 682, 684 (2006) (citation omitted).
                                In Nevada, "[t]he right of trial by Jury shall be secured to all
                    and remain inviolate forever." Nev. Const. art. 1, § 3. This provision
                    guarantees "the right to have factual issues determined by a jury."
                    Drummond v. Mid-West Growers Coop. Corp., 91 Nev. 698, 711, 542 P.2d
                    198, 207 (1975).
                                In order for a statute to violate the right to trial by jury, a
                    statute must make the right practically unavailable. Barrett v. Baird, 111
                    Nev. 1496, 1502, 908 P.2d 689, 694 (1995) ("[T]he correct standard for
                    evaluating whether a statute unconstitutionally restricts the right to a
                    jury trial is that the right must not be burdened by the imposition of
                    onerous conditions, restrictions or regulations which would make the right
                    practically unavailable." (internal quotations omitted)), overruled on other
                    grounds by Lioce v. Cohen, 124 Nev. 1, 17, 174 P.3d 970, 980 (2008).
                                While jurisdictions disagree on whether caps on statutory
                    damages violate the right to trial by jury, 4 we have previously held that a
                    statutory limit on damages does not infringe upon a plaintiff's
                    constitutional right. Arnesano v. State, Dep't of Transp., 113 Nev. 815,
                    819, 942 P.2d 139, 142 (1997), abrogated on other grounds by Martinez v.


                          4 Compare   Boyd v. Bulala, 877 F.2d 1191, 1196 (4th Cir. 1989)
                    ("[O]nce the jury has made its findings of fact with respect to damages, it
                    has fulfilled its constitutional function; it may not also mandate
                    compensation as a matter of law."), with Lakin v. Senco Prods., Inc., 987
                    P.2d 463, 473 (Or. 1999) ("Although it is true that [the statutory cap] does
                    not prohibit a jury from assessing noneconomic damages, to the extent
                    that the jury's award exceeds the statutory cap, the statute prevents the
                    jury's award from having its full and intended effect.").

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                Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). In Arnesano, the
                plaintiffs contended that a $50,000 cap on damages under NRS 41.035
                (limiting damages in a tort action against the government) violated their
                right to a jury trial. Id. at 819-20, 942 P.2d at 142. After explaining that
                it is the jury's role to determine the extent of a plaintiff's injury, this court
                concluded that "it is not the role of the jury to determine the legal
                consequences of its factual findings. ... That is a matter for the
                [Li egislature." Id. at 820, 942 P.2d at 142 (quoting Boyd v. Bulala, 877
                F.2d 1191, 1196 (4th Cir. 1989) (first alteration in original) (upholding a
                statutory cap on medical malpractice liability)).
                             California has also addressed this exact issue in upholding the
                constitutionality of its statutory cap on noneconomic damages in an action
                involving a health-care provider's professional negligence.        See Yates v.
                Pollock, 239 Cal. Rptr. 383, 385 (Ct. App. 1987) (concluding that such an
                argument is merely "an indirect attack upon the Legislature's power to
                place a cap on damages"). The Yates court reasoned that while the statute
                could possibly result in a lower judgment than the jury's award, "the
                Legislature retains broad control over the measure. . . of damages that a
                defendant is obligated to pay and a plaintiff is entitled to receive,
                and ... [it] may expand or limit recoverable damages so long as its action
                is rationally related to a legitimate state interest." Id. at 385-86 (internal
                quotations omitted) (third alteration in original).
                             Consistent with our prior holding in Arensano and persuasive
                caselaw from California, we conclude that NRS 41A.035's cap does not
                interfere with the jury's factual findings because it takes effect only after
                the jury has made its assessment of damages, and thus, it does not
                implicate a plaintiffs right to a jury trial.

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                          NRS 41A.035 does not violate equal protection rights
                                Cornell also argues that the district court correctly found the
                    statute unconstitutional but for the wrong reasons. Cornell argues that
                    MRS 41A.035 violates the Equal Protection Clause and claims there is no
                    rational basis for the statute. The district court did not address the equal
                    protection argument in its order. Although this court would not normally
                    address an issue that the district court declined to consider and develop
                    the factual record, this court can consider constitutional issues for the first
                    time on appeal. See Jacobs v. Adelson, 130 Nev., Adv. Op. 44, 325 P.3d
                    1282, 1288 (2014); Barrett, 111 Nev. at 1500, 908 P.2d at 693 (holding that
                    this court may consider constitutional issues for the first time on appeal).
                                To survive an equal protection challenge, MRS 41A.035 need
                    only be rationally related to a legitimate governmental purpose.°           See
                    generally Flamingo Paradise Gaming, LW v. Chanos, 125 Nev. 502, 520,
                    217 P.3d 546, 559 (2009). "[T]he right of malpractice plaintiffs to sue for
                    damages caused by medical professionals does not involve a fundamental
                    constitutional right." Barrett, 111 Nev. at 1507, 908 P.2d at 697.
                                The argument presented to voters in support of passing MRS
                    41A.035 was to "stabilize Nevada's health care crisis and provide
                    protection for both doctors and patients." Nevada Ballot Questions 2004,
                    Question No, 3, Argument in Support of Question No. 3 at 16, available
                    at https://www.leg.state.nv.us/Division/Research/VoteNV/BallotQuestions/



                         'While the legislative history is helpful to understanding the
                    purpose of enacting the statute, this court is not limited to the reasons
                    expressed by the Legislature; rather, if any rational basis exists, or can be
                    hypothesized, then the statute is constitutional. See Flamingo Paradise
                    Gaming, LLC v. Chanos, 125 Nev. 502, 520, 217 P.3d 546, 559 (2009).


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                2004.pdf 2004 (last visited July 10, 2015). Based on this express goal,
                NRS 41A.035's aggregate cap on noneconomic damages is• rationally
                related to the legitimate governmental interest of ensuring that adequate
                and affordable health care is available to Nevada's citizens. By providing
                a hard cap limiting potential noneconomic damages arising from an
                incident of malpractice, the statute would seem to provide greater
                predictability and reduce costs for health-care insurers and, consequently,
                providers and patients.
                              Similarly, the California Supreme Court determined that
                California's statutory cap on noneconomic damages does not violate equal
                protection.   See Fein v. Permanente Med. Grp., 695 P.2d 665, 680 (Cal.
                1985). Specifically, the Fein court explained that an aggregate cap on
                medical malpractice damages was rationally related to the legitimate
                governmental purpose of combating "the rising cost of medical malpractice
                insurance [that] was posing serious problems for the health care system in
                California." Id.; see also Hoffman v. United States, 767 F.2d 1431, 1437
                (9th Cir. 1985) (same).
                              Thus, we conclude that NRS 41A.035 does not violate equal
                protection because the imposition of an aggregate cap on noneconomic
                damages in medical malpractice actions is rationally related to the
                legitimate governmental interests of ensuring that adequate and
                affordable health care is available to Nevada's citizens.
                The district court erred when it found the cap in NRS 41A.035 applies per
                plaintiff, per defendant
                              Cornell argues that the district court properly found that the
                plain language and legislative history of NRS 41A.035 support the
                argument that its cap applies separately to each plaintiff for each
                defendant, as each plaintiff has an independent action. Cornell compares
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                      this statute with the wrongful death statute where heirs' actions may be
                      joined, and each action is separate and distinct. 6 We disagree.
                                  NRS 41A.035 provides that "[in an action for injury or death
                      against a provider of health care based upon professional negligence, the
                      injured plaintiff may recover noneconomic damages, but the amount of
                      noneconomic damages awarded in such an action must not exceed
                      $350,000." Cornell argues that the term "action" refers to each separate
                      claim and applies separately to each defendant. Conversely, Dr. Tam
                      argues that the plain meaning of "action" refers to the case as a whole.
                      Because both interpretations are reasonable, the statute is ambiguous,
                      and we look to the legislative history to aid in interpreting the statute.
                                  We review de novo questions of statutory construction. Beazer
                      Homes Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 579, 97 P.3d
                      1132, 1135 (2004). We do not look beyond the language of a statute if it is
                      clear on its face. Id. at 579-80, 97 P.3d at 1135. "However, when a statute
                      is susceptible to more than one natural or honest interpretation, it is
                      ambiguous, and the plain meaning rule has no application." Id. (internal
                      citations omitted). "In construing an ambiguous statute, we must give the


                            6 Incorrectly, Cornell also cites to County of Clark ex rel. University
                      Medical Center v. Upchurch, 114 Nev. 749, 961 P.2d 754 (1998), as
                      evidence that NRS 41A.035 applies per plaintiff, per defendant, and per
                      cause of action. In Upchurch, we determined that a $50,000 governmental
                      immunity waiver and damage cap pursuant to NRS 41.035(1) was
                      ambiguous as to whether the cap was per political subdivision or
                      aggregate "regardless of the number of defendant political subdivisions."
                      114 Nev. at 754, 961 P.2d at 758. However, after examining legislative
                      history and related caselaw, we ultimately held that "NRS 41.035 allows
                      one statutory limitation for each cause of action, regardless of the number
                      of actors." Id. at 754-60, 961 P.2d at 758-61 (emphasis added).

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                 statute the interpretation that reason and public policy would indicate the
                 legislature intended." Id. (internal citations omitted).
                             In repealing NRS 41A.031(3)(a), which limited "the
                 noneconomic damages awarded to each plaintiff from each defendant," the
                 2004 amendments to NRS Chapter 41A adopted instead NRS 41A.035,
                 which limits "the amount of noneconomic damages awarded in such an
                 action."    (Emphases added.) Such an alteration suggests that
                 noneconomic damages are restricted to a per-incident basis. See McKay v.
                 Bd. of Supervisors of Carson City, 102 Nev. 644, 650, 730 P.2d 438, 442
                 (1986) ("It is ordinarily presumed that the [L]egislature, by deleting an
                 express portion of a law, intended a substantial change in the law.").
                             Particularly helpful is legislative history prior to the 2004
                 Ballot Question Number 3 that resulted in the addition of NRS 41A.035,
                 which indicated that the aggregate cap was per incident, with no
                 exceptions. See Hearing on S.B. 97 Before the Senate Judiciary Comm.,
                 72d Leg. (Nev., March 24, 2003) (testimony of Jack Meyer, The Doctors
                 Company, at 25). The legislative history also discusses a comparison
                 between Nevada's statute and California's analogous statute, noting
                 that the cap in NRS 41A.035 is similarly "per incident, not per
                 claimant, and not per doctor."       Id. at 10. Additionally, the official
                 explanation to Question No. 3 stated that the previous statute provided
                 that "a person seeking damages in a medical malpractice action is
                 limited to recovering $350,000 in noneconomic damages            from each
                 defendant. . . . The proposal, if passed, would. . . limit the recovery of
                 noneconomic damages to $350,000 per action." Nevada Ballot Questions
                 2004, Question No. 3, Explanation at 14, (emphases added) available



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                at https.//w-ww.leg.state.nv.us/Division/ResearchNoteNV/BallotQuestions/
                2004.pdf 2004 (last visited July 29, 2015).
                            The intent behind the statute is further evinced by the
                Legislature's discussion of recent amendments to NRS 41A.035, indicating
                that the purpose of the 2004 amendments was to clarify that the cap for
                noneconomic damages is intended to apply per action. See Hearing on S.B.
                292 Before the Senate Judiciary Comm., 78th Leg. (Nev., March 26, 2015)
                (statement of John Cotton, Keep Our Doctors in Nevada, at 14).
                            Based on the foregoing, we conclude that the noneconomic
                damages cap in NRS 41A.035 applies per incident, regardless of how many
                plaintiffs, defendants, or claims are involved. Thus, the district court
                erred in denying the portion of Dr. Tam's motion in limine requesting that
                the plaintiffs' noneconomic damages be limited to $350,000 as a whole
                pursuant to NRS 41A.035.
                The district court erred when it found NRS 41A.035 only applies to claims
                of professional negligence and not to medical malpractice
                            The district court found that NRS 41A.035 only applies to
                "professional negligence" claims and not to "medical malpractice" claims.
                Citing this court's opinion in Egan v. Chambers, 129 Nev., Adv. Op. 25,
                299 P.3d 364 (2013), the district court explained that the terms were
                essentially mutually exclusive. Dr. Tam argues that professional
                negligence is broader and includes medical malpractice. Dr. Tam
                additionally argues that NRS 41A.035 applies because under the statutory
                definitions, he is a physician, and physicians are covered under
                professional negligence. Cornell argues that her claims are based on




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                medical malpractice, which is distinct from professional negligence, and
                following Egan's logic, the statute does not apply. 7
                              NRS 41A.035 applies "ifin an action for injury or death
                against a provider of health care based upon professional negligence."
                Under the then-existing statutes, "[p]rofessional negligence" was defined
                as a "negligent act or omission to act by a provider of health care in the
                rendering of professional services, which act or omission is the proximate
                cause of a personal injury or wrongful death." NRS 41A.015. A "[p]rovider
                of health care" included a "physician licensed under chapter 630 or 633 of
                NRS." NRS 41A.017 (2011). NRS 41A.013 defined "[p]hysician [as] a
                person licensed pursuant to chapter 630 or 633 of NRS," and NRS 630.014
                defines "[p]hysician [as] a person who has complied with all the
                requirements of [NRS Chapter 630] for the practice of medicine." It is
                clear that Dr. Tam is a physician as defined by NRS 630.014.
                              What is unclear from our reading of the statutes is the
                relationship between professional negligence and medical malpractice. 8
                NRS 41A.009 (1989) defined "Imledical malpractice [as] the failure of a



                      7 Curiously,  Cornell labeled her claim against Dr. Tam as
                "professional negligence," however, the district court did not address this
                distinction as the court determined that NRS 41A.035 was
                unconstitutional.

                      8 The Legislature has since clarified this confusion by striking the
                term "medical malpractice" in NRS Chapter 41A and replacing those
                references with the term "professional negligence." See 2015 Nev. Stat.,
                ch. 439, §§ 1.5, 2, 5, 6, 7, 10, at 2526-28. The Legislature has also repealed
                NRS 41A.009 and 41A.013, and provided a new definition for professional
                negligence under NRS 41A.015, incorporating provisions of the previously
                used definition of medical malpractice. Id. at § 12, at 2529.

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                physician, hospital or employee of a hospital, in rendering services, to use
                the reasonable care, skill or knowledge ordinarily used under similar
                circumstances." Although not identical, the definitions for both
                professional negligence and medical malpractice are similar and
                ultimately include negligence by a physician. 9 Moreover, while the
                definition of medical malpractice is narrower in scope, the definition of
                professional negligence encompasses almost all of the medical malpractice
                definition. 1   °
                                    This ambiguity is expounded when taking into account the
                legislative history of these statutes. In 2004, Nevada voters were
                presented with and approved Question No. 3, the Keep Our Doctors in
                Nevada initiative, which added NRS 41A.035 to the state's statutes. The
                initiative was explained to the voters as follows, using professional
                negligence and medical malpractice interchangeably:


                       9 This
                            court made a similar observation in Fierle v. Perez, 125 Nev.
                728, 737, 219 P.3d 906, 912 (2009), overruled on other grounds by Egan v.
                Chambers, 129 Nev., Adv. Op. 25, 299 P.3d 364, 365 (2013):

                                    Initially, we note that the definition for
                                    professional negligence that was added in 2004
                                    (NRS 41A.015) essentially duplicates the
                                    definition for medical malpractice contained in
                                    NRS 41A.009. As such, it is not clear whether the
                                    references to medical malpractice in NRS Chapter
                                    41A encompass the almost identically defined
                                    professional negligence.
                       10 "Medicalmalpractice" includes the broader term "hospital," while
                "[p]rovider of health care" uses the term "licensed hospital." See NRS
                41A.009 (1989), NRS 41A.015. Thus, with the exception of an unlicensed
                hospital, provider of health care is broader than medical malpractice, such
                that it encompasses medical malpractice.

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                            If passed, the proposal would limit the fees an
                            attorney could charge a person seeking damages
                            against a negligent provider of health care in a
                            medical malpractice        action.   Professional
                            negligence means a negligent act, or omission to
                            act, by a provider of health care that is the
                            proximate cause of a personal injury or wrongful
                            death....
                            The law currently provides that a person seeking
                            damages in a medical malpractice action is limited
                            to recovering $350,000 in noneconomic damages
                            from each defendant. . . .
                            Currently, damages that an injured person is
                            allowed to recover in a medical malpractice action
                            may be reduced by benefits the person received
                            from a third party.. . .
                Nevada Ballot Questions 2004, Question No. 3, Explanation at 14,
                (emphasis added),      available at https://www.leg.state.nv.us/Division/
                Research/VoteNV/BallotQuestions/2004.pdf (last visited July 29, 2015).
                Similarly, the legislative history prior to the voter initiative indicates that
                the statute would apply to medical malpractice actions, and the discussion
                surrounding the proposed legislation further conflated the terms
                            Nevada's initiative petition defines professional
                            negligence as being the "act or omission to act by a
                            provider of health care in the rendering of
                            professional services, which act or omission is the
                            proximate cause of a personal injury or wrongful
                            death." In other words, in a medical malpractice
                            case the alleged negligent act must have actually
                            contributed to the injury or the death of a patient.
                            This is logical, it seems appropriate, and it works
                            well in other states.
                Hearing on S.B. 97 Before the Senate Judiciary Comm., 72d Leg. (Nev.,
                March 5, 2003) (testimony of Dr. Robert W. Shreck, President, Nevada
                Medical Association) (emphases added).
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                             Here, the district court relied on Egan for the proposition that
                 medical malpractice and professional negligence are essentially mutually
                 exclusive. In Egan, we held that NRS 41A.071, which requires an
                 affidavit of merit in medical malpractice claims, applied only to medical
                 malpractice actions, thus partly overruling a previous decision that
                 applied the statute to professional negligence actions as well. 129 Nev.,
                 Adv. Op. 25, 299 P.3d at 365. NRS 41A.071 did not mention "professional
                 negligence," only "medical malpractice and dental malpractice," so this
                 court turned to the statutory definitions of medical malpractice.       Id. at
                 367. Because medical malpractice only encompasses claims against
                 physicians licensed pursuant to NRS Chapters 630 and 633, and
                 podiatrists were licensed under NRS Chapter 635, this court determined
                 that a negligence action against a podiatrist, while professional
                 negligence, was outside the purview of medical malpractice. Id.
                             To the contrary, NRS 41A.035 applies to            professional
                 negligence claims, which by definition of NRS 41A.015 applies to "a
                 provider of health care," and includes physicians licensed pursuant to NRS
                 Chapters 630 and 633. NRS 41A.017. Thus, construing the statutes in
                 harmony and consistent with what reason and public policy suggest the
                 Legislature intended, we conclude that medical malpractice is
                 incorporated into professional negligence, making NRS 41A.035 applicable
                 to medical malpractice actions. Accordingly, we further conclude that the
                 district court erred when it found that NRS 41A.035 only applies to
                 professional negligence claims and not to medical malpractice claims.

                                              CONCLUSION

                             Based on our analysis, we conclude that the district court
                 erred in finding NRS 41A.035 unconstitutional. We further conclude that
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                the district court erred when it found NRS 41A.035's cap for noneconomic
                damages applies per plaintiff and per defendant. Finally, we conclude
                that the district court erred when it found that NRS 41A.035 did not apply
                to claims for medical malpractice. We therefore grant Dr. Tam's petition
                and instruct the clerk of this court to issue a writ of mandamus
                instructing the district court to vacate its order and to conduct further
                proceedings consistent with this opinion.


                                                               ca.-1          , C.J.
                                                    Hardesty




                                               J.



                                               J.
                Douglas



                Cherry
                          CLA
                                               J.
                Saitta




                                               J.

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