                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                DR. SAMIR S. BANGALORE, M.D.,                       No. 65877
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                                                                         FILED
                CLARK; AND THE HONORABLE                                 AUG 0 2 2016
                ALLAN R. EARL, DISTRICT JUDGE,                          TRACIE K. LINDEMAN
                Respondents,                                         CLERK OF UPREME COURT

                                                                    BY     '
                and                                                       DEPUTY C LERK

                FELICIA WILLIAMS; AND DR. TIEN
                CHANG WANG, M.D.,
                Real Parties in Interest.
                DR. TIEN CHANG WANG, M.D.,                          No. 66353
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                CLARK; AND THE HONORABLE
                ALLAN R. EARL, DISTRICT JUDGE,
                Respondents,
                and
                FELICIA WILLIAMS; AND DR. SAMIR
                S. BANGALORE, M.D.,
                Real Parties in Interest.

                                   ORDER GRANTING PETITION
                           These consolidated original petitions for writs of mandamus or
                prohibition challenge the district court's orders denying petitioners'
                motions for summary judgment on medical battery and assault claims




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                raised by real party in interest Felicia Williams.' Williams filed her
                complaint against petitioners Dr. Samir Bangalore and Dr. Tien Chang
                Wang, but she did not file an expert affidavit pursuant to NRS 41A.071. 2
                              This court has original jurisdiction to grant extraordinary writ
                relief. Mountain View Hosp., Inc. v. Eighth Judicial Dist. Court, 128 Nev.
                180, 184, 273 P.3d 861, 864 (2012); see also Nev. Const. art. 6, § 4. Writ
                relief is an extraordinary remedy, and this court will exercise its
                discretionary authority to consider a petition "when there is no plain,
                speedy, and adequate remedy in the ordinary course of law."         Cheung v.
                Eighth Judicial Dist. Court, 121 Nev. 867, 869, 124 P.3d 550, 552 (2005)
                (internal quotations omitted); see also NRS 34.170. "This court will only
                consider writ petitions challenging a district court denial of a motion for
                summary judgment when no factual dispute exists and summary
                judgment is clearly required by a statute or rule, or an important issue of
                law requires clarification."    Walters v. Eighth Judicial Dist. Court, 127
                Nev. 723, 727, 263 P.3d 231, 234 (2011). Here, because no factual dispute



                      3A writ of prohibition is appropriate when a district court acts
                without or in excess of its jurisdiction. NRS 34.320. We conclude,
                however, that a writ of prohibition is improper here because the district
                court had jurisdiction to hear and determine the motions for summary
                judgment pursuant to NRCP 56. See Goicoechea v. Fourth Judicial Dist.
                Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 (1980) (stating that this
                court will not issue a writ of prohibition "if the court sought to be
                restrained had jurisdiction to hear and determine the matter under
                consideration").

                      2 The  Legislature amended NRS 41A.071 during the 2015 legislative
                session. 2015 Nev. Stat., ch. 439, § 6, at 2527. Any discussion in this
                order related to this statute refers to the 2002 version of the statute in
                effect at the time of the cause of action.


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                       exists regarding the doctors' lack of intent to commit battery and
                       summary judgment was required as a matter of law, we exercise our
                       discretion and consider these writ petitions.
                                   We recently concluded in Humboldt General Hospital v. Sixth
                       Judicial District Court, 132 Nev., Adv. Op. , P.3d (2016), that a
                       battery claim based on an allegation of a lack of informed consent requires
                       an expert affidavit pursuant to NRS 41A.071, unless a plaintiff has
                       established that there was a complete lack of consent for the treatment or
                       procedure performed.
                                   Williams alleged in her complaint that she did not consent to
                       the procedures performed because her employer forced her to go to the
                       hospital. In opposing summary judgment, Williams presented testimony
                       from a non-medical expert who opined that her signature was forged on
                       the consent forms required to be signed prior to admission into the
                       hospita1. 3 Consistent with our holding in Humboldt, because Williams'
                       battery claim involved a complete lack of consent, a medical expert
                       affidavit was not required. Thus, we conclude that the district court
                       properly determined that summary judgment was not appropriate on the
                       consent issue because a question of fact remains regarding the consent
                       forms. See NRS 41A.110.
                                   However, for Williams to survive summary judgment, a
                       question of fact involving the common law elements of battery must also
                       be present. "A battery is an intentional and offensive touching of a person
                       who has not consented to the touching." Conte v. Girard Orthopaedic



                             3 There
                                   is nothing in the record to suggest that Dr. Wang or Dr.
                       Bangalore was involved in or aware of the potentially forged signature.


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                     Surgeons Med. Grp. Inc., 132 Cal. Rptr. 2d 855, 859 (Ct. App. 2003); see
                     also Piedra v. Dugan, 21 Cal. Rptr. 3d 36, 48 (2004) (stating that common
                     law battery requires "an act which resulted in a harmful or offensive
                     contact") (internal quotations omitted). "When a motion for summary
                     judgment is made and supported as required by NRCP 56, the non-moving
                     party may not rest upon general allegations and conclusions, but must, by
                     affidavit or otherwise, set forth specific facts demonstrating the existence
                     of a genuine factual issue."   Pegasus v. Reno Newspapers, Inc., 118 Nev.
                     706, 713, 57 P.3d 82, 87 (2002).
                                 While the complaint generally alleges that the doctors
                     unlawfully touched her, Williams points to nothing in the record before us
                     to demonstrate that either doctor touched her in a harmful or offensive
                     manner without her consent. In fact, Williams testified in her deposition
                     that she never objected to Dr. Wang ordering a blood test or otherwise
                     treating her. Instead, she acknowledged that she wanted Dr. Wang to
                     examine her to prove to her employer that she was not under the influence
                     of drugs, and she was aware that Dr. Wang was going to contact Dr.
                     Bangalore to discuss the incident and her medical history and did not
                     object. Furthermore, Dr. Wang testified at his deposition that he was not
                     aware that Williams was brought to the emergency room for an employee
                     drug test by her supervisor, or that she felt compelled to stay there.
                                 The record further shows that Dr. Bangalore did not speak to
                     or touch Williams until the follow-up appointment a week later, where
                     Williams still did not express any criticism over the care she received.
                     Under an agency battery theory, a principal can only be liable if the agent
                     is first "liable for unlawful acts." Watkins v. Cleveland Clinic Found., 719
                     N.E.2d 1052, 1064 (1998). Here, because Williams failed to demonstrate

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                   the elements of battery by Dr. Wang, Dr. Bangalore cannot be liable.
                   Thus, Williams has failed to "set forth specific facts demonstrating the
                   existence of a genuine factual issue," Pegasus, 118 Nev. at 713, 57 P.3d at
                   87, regarding whether she was touched in a harmful or offensive manner
                   without consent by either doctor, see Piedra, 21 Cal. Rptr. 3d at 48.
                   Therefore, we conclude that the district court erred in denying summary
                   judgment in favor of Bangalore and Wang. Accordingly, we
                               ORDER the petitions GRANTED AND DIRECT THE CLERK
                   OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
                   district court to enter summary judgment on behalf of Bangalore and
                   Wang.


                                             elhitck--Ser         , C.J.
                                           Parraguirre


                                              J.                                        J.
                   Hardesty


                                                                                       , J.
                                                             Saitta



                   Gibbons




                   cc:   Hon. Allan R. Earl, District Judge
                         John H. Cotton & Associates, Ltd.
                         Hall Prangle & Schoonveld, LLC/Las Vegas
                         Mary F. Chapman
                         Eighth District Court Clerk
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