Las Vegas Team’s Win for Healthcare Client at Nevada Supreme Court Clarifies Critical Professional Negligence Issue

Las Vegas, Nev. (July 9, 2024) - Las Vegas Healthcare Partners Keith A. Weaver and Alissa N. Bestick recently secured a precedent-setting opinion for a client from the Nevada Supreme Court that clarified the standard for distinguishing claims of professional negligence from those of ordinary negligence.

The unanimous Nevada high court overruled its 2020 decision in Estate of Curtis v. South Las Vegas Medical Investors LLC, which had established a two-prong framework for distinguishing between professional negligence claims – which require a supporting medical expert affidavit under Nevada law – and ordinary negligence claims, which do not.

In Curtis, the Nevada Supreme Court adopted in full the approach taken by the Michigan Supreme Court in a case known as Bryant v. Oakpointe Villa Nursing Center Inc. The test articulated in Bryant requires courts to decide 1) whether the claim pertains to an action that occurred within the course of a professional relationship; and 2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. If the answer to both questions is yes, a claim must be subject to the procedural and substantive requirements applied to professional negligence actions.

However, in its decision in favor of Lewis Brisbois’ client, the Nevada high court said that only the first prong of that test is grounded in Nevada’s statutes and caselaw, while the second prong is “at odds with Nevada’s statutory scheme.” By eliminating the “common knowledge exception” recognized in Curtis, the Nevada Supreme Court cut off an avenue by which plaintiffs in the state had sought to characterize professional negligence claims as ordinary negligence claims.

The case arose from injuries that the plaintiff claimed he suffered in August 2020 while recovering from COVID-19 and other illnesses at a facility operated by Lewis Brisbois’ client. The plaintiff, who was bedridden at the facility, alleged that he was injured when workers who were assisting him unexpectedly let go of him and caused him to fall to the floor.

The plaintiff sued Lewis Brisbois’ client in August 2021 for negligence and abuse of the vulnerable, and in the alternative, for violations of Nevada’s medical malpractice statutes. He failed to attach a supporting declaration from a doctor to the complaint, and filed an erratum with the declaration attached only after the client filed a motion to dismiss in September 2021.

The trial court found that the plaintiff’s claims sound in professional negligence, but granted the client’s motion to dismiss after concluding that the plaintiff’s expert declaration had not been properly filed under the controlling statute, NRS 41A.071. The Nevada Court of Appeals reversed, holding that the lower court erred because the plaintiff had alleged facts that could potentially entitle him to relief under ordinary negligence principles. The appeals court further determined that the trial court had erroneously dismissed the plaintiff’s professional negligence claims for noncompliance.

Before the Nevada Supreme Court, the plaintiff argued that his claims sound in ordinary negligence because they don’t involve any medical judgment, treatment, or diagnosis that would require expert testimony at trial. The state high court, however, concluded that the conduct alleged by the plaintiff “makes clear that his claims sound in professional negligence.”

The Nevada Supreme Court observed that the two-part framework established in Curtis “has proven unworkable, creating conflicts with Nevada statutes and caselaw that have destabilized existing precedent in this area.” In overruling Curtis’ “common knowledge exception” to the requirement of a medical expert affidavit in professional negligence cases, the Court pointed out that there are only five enumerated exceptions to this requirement in NRS 41A.071 - none of which was involved in the lawsuit against Lewis Brisbois' client.

“Whether and to what degree common knowledge may seem to obviate the need for an affidavit in the professional negligence sphere, such that a new exception is warranted, are issues in the purview of the Legislature,” the opinion said. “Accordingly, we hold an expert affidavit is required to support allegations that a provider of health care was negligent in rendering services unless a recognized exception is present.”

The Nevada Supreme Court allowed the plaintiff’s professional negligence claims to proceed, after finding that his expert affidavit satisfied NRS 41A.071 because it was incorporated by reference in the complaint and executed before the complaint was filed. The Court remanded for further proceedings consistent with its opinion.