Opinion
86567-COA
12-21-2023
CHRISTOPHER L. IGTIBEN. M.D.; DIGNITY HEALTH; ST. ROSE DOMINICAN HOSPITAL-SAN MARTIN CAM P LJS: DIG NITY H EAI /T H MEDICAL GROUP NEVADA, LLC: AND DIGNITY HEALTH HOLDING CORPORATION, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK: AND THE HONORABLE KATHLEEN E. DELANEY, DISTRICT JUDGE. Respondents, LINDA F. SMITH; THE ESTATE OF KAMARIO MANTRELL SMITH; EDWARD GAXIOLA PONS; LATOYA NIC HOLE TURNER: K.M.S.: LA WANDA DENIS E HARRIS; K.A.S.: AND K.A.S.. Real Parties in Interest.
UNPUBLISHED OPINION
ORDER GRANTING PETITION EOR WRIT OF MANDAMUS
Gibbons C.J.
This original petition for a writ of mandamus challenges a district court order denying" a motion to dismiss in a professional negligence of a health care provider and wrongful death action. Eighth Judicial District Court, Clark County; Kathleen K. Delaney. Judge.
Kamario Mantrell Smith (Kamario), an inmate, collapsed twice in prison three weeks after an unsuccessful heart surgery. Following his second collapse. Kamario was transported to the San Martin Campus of St. Rose Dominican Hospital (San Martin), where he was admitted for shortness of breath, chest pains, and a rapid heart rate. On admission, it was believed that Kamario had sickle cell trait (SCT), and a peripheral blood smear test showed that Kamario s blood contained sickled cells. Shortly after. Christopher Igtibon. M.D., an internal medicine hospitallist ordered a contrast CT angiograph of Kamario's chest, abdomen, and pelvis. which detected a blood clot in his lung, an enlarged heart, fluid in his chest and bilateral pneumonia. Kamario was placed on an anticoagulant, which initially stabilized him. However, the next day his hemoglobin decreased. and he became hypotensive. Kamario rapidly lost kidney function and experienced renal failure. At this time, a diagnostic hemoglobin electrophoresis test confirmed Kamario had sickle cell anemia, rather than SCT. The next morning. November 25. 2019. Kamario's heart stopped, and resuscitation efforts were unsuccessful.
We do not recount the facts except as necessary to our disposition.
A peripheral blood smear test provides health care providers with a microscopic view of red and white blood cells and platelets: while results from a peripheral smear test are not diagnostic, they may be used to assist health care providers in making diagnoses. Peripheral Blood Smear, Cleveland Clinic, https://my.clevelandelinic.org/health/diagnosties/22742peripheral-blood-smear-test (last visited Dec. 11. 2023), A person with SCI'' carries the sickle cell gene, but generally experiences no complications from the condition. Questions and, Answerers About Sickle Cell Trail. Nat'l Heart. Lung, and Blood Inst. (Sept. 22. 2010). https://www.nhlbi.nih.gov/news/2010/questions-and-answers-about-sickle-cell-trait. In contrast, individuals with sickle cell anemia (also known as sickle cell disease) have low hemoglobin levels because the red blood cells become misshapen and take on the sickle shape. Id.,. Sickle cell anemia can cause damage to organs including the brain, bones, lungs, kidneys, liver. and heart. Id.
Hemoglobin electrophoresis uses electrical charges to separate hemoglobin types so healthcare providers can compare the level of each type with normal levels."' Hemoglobin Electrophoresis. Cleveland Clinic. https://my.clevelandclinic.org/health/diagnostics/22420diemoglobinelectrophoresis (last visited Dec 11, 2023). This test is used to diagnose blood diseases such as sickle cell anemia. Id.
Following Kamario's death, on January 6, 2020. Kamanos mother, real party in interest Linda F. Smith (Smith), received his medical records from San Martin, which included the treatment and care provided by Dr. Igtiben. Smith also obtained a copy of the death certificate as evidenced by her attaching it to her May 12. 2020. probate filings. The death certificate listed the cause of death as 'pulmonary infarction caused by a pulmonary embolism"' with other significant conditions listed as "acute renal [kidney] failure, ['SCT]. hypertension and recurrent atrial fibrillation and atrial flutter. Although not included in the record, both parties submit that the autopsy report notated Kamario's manner of death to be “natural.”
At the time of his death. Kamario had a civil rights action pending against the Nevada Department: of Corrections (NDOC) in federal court, alleging NDOC's ongoing and continuing failure to properly treat or accommodate his atrial fibrillation and irregular heartbeat. On April 2, Smith moved to substitute in for Kamario as a party in the federal case. In the handwritten motion, Smith wrote. "I understand; I have to submit my Negligence Claim [] of Kamario Smith Death. I understand that I need to pursue thein in state court,.'' At or near this time. Smith retained counsel to assist her and on April 20 the federal court granted her motion to substitute in as a party.
In May. the probate court in the Eighth Judicial District appointed Smith as the special administrator of Kamario's estate. Smith listed the assets of the estate as consisting solely of two lawsuits: the above-mentioned civil rights lawsuit in federal court, and a prospective wrongful death claim purportedly to be brought against NDOC either in the ongoing federal action or in state court.
Around September 2021. in relation to the federal lawsuit. Smith retained Lary Simms. D.O.. a pathologist, to review Kamarios medical records. In February 2022. Dr. Simms opined that Kamario's death was caused by exposure to the intravenous contrast Dr. Igtiben had ordered for the CT scan, which caused kidney failure due to Karmario's sickle? cell anemia." Approximately six months later, on November 22. 2022. Smith filed a complaint in the Eighth Judicial District on behalf of Kamario's estate against Dignity Heath d/b/a St. Rose Dominican Hospital-San Martin Campus: Dignity Health Medical Group, LLC; Dignity Health Holding Corporation; and Dr. Igtiben. alleging professional negligence of a health care provider and wrongful death. The complaint, which was supported by a declaration of merit by Dr. Simms. alleged that Dr. Igtiben's actions, as well as other defendants, fell below the standard of care in failing to recognize that Kamario suffered from sickle cell anemia before ordering a CT with contrast, which ultimately caused Kamario's kidneys to fail resulting in his death.
The federal suit remained active until it apparently settled in or about February 2022.
An intravenous contrast is an iodine-based medium injected into an individual's body to increase the density of blood, which allows for blood vessels to be viewed during a CT exam. David C. Kodgers & I'rassana Tadi, Intravenous Contrast, Nat'l Library of Med.. https://www.ncbi.nlm.nih.gov/books/NBK557794/ (last updated Mar. 13. 2023).
Dr. Igtiben moved to dismiss Smith's complaint arguing in part that, pursuant to N.RS 41A.097(2), the statute of limitations on Smith's claims had expired. The other petitioners joined in the motion to dismiss. The district court denied the motion, stating in part that a finder of fact could determine that the one-year statute of limitations under NKS 41A.097(2) did not begin to run until February 2022 when Dr. Simms formed his opinions.
Subsequently, Dr. Igtiben filed the instant writ petition challenging the district court's order denying dismissal of the complaint against him. A writ of mandamus is available to compel the performance of an act that the law requires or to control an arbitrary or capricious exercise of discretion. Int'l Game Tech,., Inc. v. Second Judicial. Dist. Court 124 Nev. 193, 197, 179. P.3d 556. 558(2008). This extraordinary relief may be available if the petitioner does not have a plain, speedy, and adequate remedy in the ordinary course of law. NHS 34.170: see also Smith v. Eighth Judicial Dist. Court., 107 Nev. 674. 677, 818 P.2d 849, 851 (1991) (recognizing that whether a writ of mandamus will be considered is within the appellate court's sole discretion). Generally, this court will not consider a writ petition challenging an order denying a motion to dismiss because an appeal from a final judgment is an adequate and speedy legal remedy, Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558-59. However, "we will consider petitions denying motions to dismiss when either (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 judicial economy and administration militate in favor of granting the petition." Id., at 197-98, 179 P.3d at 559. Because the facts relevant to the applicable one-year statute of limitations arc not in dispute, and because the district court was obligated to dismiss the action pursuant to NHS 4 1A.097(2). we elect to exercise our discretion and entertain this writ petition.
Dignity Health d/b/a St. Rose Dominican Hospital-San Martin Campus: Dignity Health Medical Group Nevada, LLC: and Dignity Health Holding Corporation joined as petitioners.
NRS 41A.097(2) governs the statute of limitations for professional negligence claims, stating in relevant part, that "an action for injury or death against a provider of health care may not be commenced more than 3 years after the date of the injury or 1 year after the plaintiff discovers or through use of reasonable diligence should have discovered the injury, whichever occurs first" (Emphasis added). The accrual date for NRS 4l A.097(2)'s one-year statute of limitations is generally a question of fact that must be decided by a jury; however, courts may determine the date as a matter of law when the evidence irrefutably shows the plaintiff was placed on inquiry notice of a potential claim. Winn v. Sunrise Hosp. & Med. Ctr. 128 Nov. 246. 251-52, 277 P.3d 458, 462 (2012). "A plaintiff discovers [their] injury when [they] know| ] or, through the use of reasonable diligence, should have known of facts that would put a reasonable person on inquiry notice of [their) cause of action." Id. at 252. 277 P.3d at 4(12 (quoting Massey u. Litton. 99 Nov. 723. 728. 669 P.2d 248. 252 (1983)) (internal citation omitted). A person is put on inquiry notice when they "should have known facts that would lead an ordinarily prudent; person to investigate the matter further." Id. (internal quotation marks omitted). The Nevada Supreme Court has held that a plaintiff is on inquiry notice of potential claims for medical malpractice when they have received all necessary medical records because the plaintiff has "access to facts that would have led an ordinarily prudent person to investigate further into whether [the patient's] injury may have been caused by someone's negligence." Id. at 253-54, 277 P.3d at 463: see also Kushnir v. Eighth Judicial Dist, Court. 137 Nev. 409. 410. 495 P.3d 137. 139 (Ct. App. 2021) ("Because the plaintiffs had all necessary medical records and were therefore on inquiry notice of the claim more than a year prior to filing the complaint . . . we conclude that the one-year statute of limitations expired and extraordinary writ relief is appropriate.).
Recent amendments to NRS 41 A.097 extend the statute of limitations for "injury to or wrongful death of a person"' claims to two years after the plaintiff discovered or should have discovered the injury, but only for those claims arising on or after October 1. 2023. See NRS 41 A.097(2)-(3) (2023). As the claims here arose before October 1, 2023, these amendments do not affect our analysis.
We note that, in the present case, the one-year inquiry-notice statute of limitations occurred before the three-year statute of limitations from the date of injury. We recognize that Smith's complaint was filed prior to the expiration of the three-year statutory limitation.
In this case, the district court erred in denying Dr. Igtiben s motion to dismiss as it is undisputed that Smith received the relevant medical records in January 2020 __ placing her on inquiry notice of a potential professional negligence claim against Dr. Igtiben at that time. See Kushnir, 137 Nov. at 410-11.. 495 P.3d at '139-40. There fort;, as of January 6. 2020, Smith had access to facts that would have led an ordinarily prudent person to investigate whether Dr. Igtiben's treatment and care led to Kamano's death. As a result, pursuant to NRS 41 A.097(2). Smith was required to file any professional negligence or wrongful death action within one year from the date she received the medical records. Even assuming a reasonable time in which to obtain an expert review. Smith did not file the present action until November 22. 2022. or approximately two years and ten months later, well outside of the one-year statute of limitations based on inquiry notice. Therefore, the applicable statute of limitations had long since expired when Smith filed her complaint for professional negligence in state court on November 22. 2022. and the district court should have dismissed the complaint as being untimely. Accordingly, we
Because we conclude that the medical records provided Smith the information necessary to place her on inquiry notice and trigger MRS 4lA.097(2)'s statute of limitations, the fact that she may have received Kamario's death certificate or autopsy report after the medical records does not change our decision. We note that the record before us is neither clear about when Smith received the January 8 death certificate nor the autopsy report, which is also not contained in the record.
We note Smith conceded at oral argument that no impediment prevented Dr. Simms from reviewing the case earlier than in September 2021. By way of example. Smith neither raised, nor do we consider, whether the statute of limitations was tolled due to concealment. See NRS 4 1 A.097(3) (discussing tolling due to concealment): Senjab v. Alhulaibi 137 Nov. 032. 633-34, 497 P.3d 618. 619 (2021) (stating that appellate courts will not supply an argument on a party's behalf).
As we have already concluded that we must grant writ relief and direct the district court to dismiss the complaint below because the relevant statute of limitations had expired, we need not consider Dr. Igtiben's alternative basis For dismissal wherein he asserts that the affidavit of merit attached to the complaint failed to satisfy NRS 41 A.071. See Wheble v. Eight Judicial Dist. Court. 128 Nev. 119. 122-23 n.2. 272 P.3d 134, 1.30-37 n.2 (2012) (granting writ relief and directing the district court to dismiss a complaint because the statute of limitations had expired and declining to consider the petitioner's alternative bases for writ relief). Nevertheless, we encourage the Legislature to consider clarifying the ambiguity in NRS 41A.071(2) as to when a physician must have practiced in the same or substantially similar area of practice in relation to the alleged professional negligence at issue in order to provide an affidavit or declaration of merit setting forth opinions regarding that negligence. Currently, no specific time frame is set forth in the statute for guidance. In this case, we note that Dr. Simms had not practiced as a hospitallist Dr. lgtiben,s practice area, for over 30 years when he submitted his affidavit of merit opining as to the appropriate standard of care governing Dr. Igtiben's treatment.
ORDKR the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district, court to vacate its order denying petitioners' motions to dismiss and dismiss the real party of interests' complaint as untimely under MRS 41A097(2).
BULLA J., WESTBROOK J.
Hon. Kathleen R. Delaney. District Judge