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Borger v. Eighth Judicial District Court of the State of Nevada12/29/2004
This original petition for a writ of mandamus challenges district court orders dismissing petitioner's medical malpractice action and denying his motion to amend his malpractice complaint. Because the petition involves important issues of law concerning the expert witness certification requirements of recently enacted NRS 41A.071, issues that merit clarification to further judicial economy in this case and in general, we grant this petition for writ relief.
FACTS AND PROCEDURAL HISTORY
In January 1998, petitioner Alan Borger consulted with real party in interest James Lovett, M.D., a general surgeon, for treatment of recurrent lower digestive tract difficulties. Eventually, in early 1999, Dr. Lovett secured a clinical consultation from real party in interest, Dipak Desai, M.D., a gastroenterologist. Dr. Desai diagnostically confirmed that Borger suffered from a condition known as Crohn's disease and agreed with Dr. Lovett's recommendations for surgical intervention. On March 26, 1999, in accordance with the joint assessment, Dr. Lovett performed a colectomy and ileostomy upon Borger.
Unfortunately, Borger's condition did not improve over time. In January 2002, Borger began treatment with a second gastroenterologist, Marc Kudisch, M.D. Dr. Kudisch ultimately concluded that Dr. Desai misdiagnosed Borger with Crohn's disease, and that Dr. Lovett recommended and performed an unnecessary and overly aggressive surgical procedure. On June 24, 2002, Borger filed a complaint for medical malpractice against Drs. Lovett and Desai with the Nevada medical-legal screening panel.
When Borger initiated the panel proceedings, all medical malpractice actions were subject to statutory prescreening by medical-legal screening panels. This statutory mechanism prohibited the filing of malpractice actions in district court without prior resort to the prescreening procedures. Complaints for panel review were lodged with the Division of Insurance of the Nevada Department of Business and Industry and, under certain circumstances, were subject to dismissal or rejection by the panel if filed without an affidavit from a medical expert in support of the malpractice claim. Findings of the panel in favor of or against the medical provider were admissible in any ultimate trial proceedings in district court.
During the summer of 2002, while Borger's claim remained pending before the screening panel, the Governor of Nevada called the Legislature into special session to address a perceived medical malpractice insurance crisis. The Legislature, among other things, enacted various measures limiting or "capping" non-economic damages in medical malpractice cases, tied damage limitations to procurement by medical providers of minimum professional liability coverage, changed the rules concerning joint and several liability of multiple malpractice defendants, repealed provisions requiring prescreening of cases by medical-legal screening panels, and provided for mandatory settlement conferences. NRS 41A.071, enacted as part of the special legislative package, requires that medical malpractice complaints filed on or after October 1, 2002, be accompanied by affidavits of merit from medical experts. Under this provision, the affiant must practice or have practiced in an area that is "substantially similar to the type of practice engaged in at the time of [the defendant's] alleged malpractice." A district court must dismiss, "without prejudice," any malpractice complaint filed in violation of NRS 41A.071.
Under the special session legislation, malpractice plaintiffs could elect to proceed under the repealed statutory format in actions filed with the Division of Insurance or in d
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