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Barrett v. Baird12/19/1995
Per Curiam: Thomas Barrett contracted chicken pox. Mr. Barrett was not feeling well and went to respondent St. Rose de Lima Hospital (Hospital). There he was seen by respondent Dr. George Baird who, after performing several tests and prescribing treatments for Mr. Barrett, released Mr. Barrett from the hospital. That night, Mr. Barrett became delirious. He was rushed to the hospital and placed on a respirator, but the hospital did not have sufficient facilities to continue treating Mr. Barrett. Mr. Barrett was then transferred to the University Medical Center (Center). At the Center, respondent Dr. Byron Brown treated Mr. Barrett. One of the treatments prescribed was a dialysis. Respondent Dr. Marvin Bernstein supervised the dialysis. During dialysis, Mr. Barrett had a cardiorespiratory arrest. As a result, he suffered severe brain damage and eventually died. Appellant Peggy Barrett (Barrett), Mr. Barrett's wife, commenced an action for medical malpractice. Barrett claimed that Mr. Barrett's death was the result of the combined effects of (1) the negligent failure of Dr. Baird, as an agent of the Hospital, to admit Mr. Barrett to the Hospital on January 26, 1989, when, she claims, there was clear medical evidence that his chicken pox had disseminated and that he was developing varicella pneumonia and secondary infections due to the virus, and (2) Drs. Brown and Bernstein's negligent failure to diagnose and correct a massive bleed into Mr. Barrett's left pleural space, and Dr. Bernstein's negligent dialyzing of Mr. Barrett when he was hemodynamically unstable, due to the bleed. Barrett commenced her action in accord with NRS 41A.016 by filing a petition before the Medical-Legal Malpractice Screening Panel (the screening panel) against Dr. Baird and the Hospital. Subsequent to a finding of no probability of negligence by the panel, Barrett filed a second petition with the panel against Drs. Brown and Bernstein. This panel, like the first, returned a finding of no probability of negligence as to the named physicians.
[111 Nev. 1496, Page 1500]
Despite the respective panel findings of no probability of negligence, Barrett brought a wrongful death action against Dr. Baird, the Hospital, Dr. Brown, and Dr. Bernstein, alleging medical malpractice in the treatment of her husband. The panel findings were introduced into evidence. A unanimous jury found that the defendants were not negligent. Judgments were entered in favor of all defendants for costs and attorney fees pursuant to NRS 41A.056(2). Barrett filed two separate motions for a new trial"one based on asserted errors that occurred at trial and the other challenging the constitutionality of the screening panel statute. Both motions were denied. Barrett renews her denied challenges on appeal. Specifically, Barrett claims the screening panel statute is unconstitutional because it violates the right to a jury trial, equal protection, separation of powers, and due process. Furthermore, she claims that the district court abused its discretion in not granting her a new trial because opposing counsel engaged in discovery misconduct, made a remark about the high cost of health care, made an improper "golden rule" argument, showed the jury a picture of one of counsel's family, conducted a scientific demonstration during opening statement without laying foundation and then stated in closing argument that Barrett failed to refute the experiment, and, finally, improperly referred to the screening panel as an expert witness. Barrett also claims that the district court should have excluded evidence that she remarried. We conclude that the screening panel statute is constitutional. Nevertheless, we reverse the lower court's judgment and award of attorney fees in fa
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