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Mishler v. State3/24/1993
the opposing party. Where a party fails to do so, that party must suffer the prejudice from the absence of the evidence. See Stubli v. Big D International Trucks, 107 Nev. 309, 810 P.2d 785 (1991); Judson v. Camelot Food, Inc., 104 Nev. 324, 756 P.2d 1198 (1988); Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911 (1987). Stubli set forth a non-exhaustive list of factors which a court may consider when deciding whether dismissal of the complaint is appropriate. These factors are as follows:
[109 Nev. 287, Page 295]
(1) the degree of willfulness of the offending party; (2) the extent to which the non-offending party would be prejudiced by a lesser sanction; (3) the severity of the sanction of dismissal relative to the severity of the discovery abuse; (4) whether any evidence has been irreparably lost; (5) the policy favoring adjudication on the merits; (6) whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney; and (7) the need to deter both the parties and future litigants from similar abuses. 107 Nev. at 313, 810 P.2d at 787.
Under most of these factors, we conclude that the Board's actions warrant dismissal of the charges against Dr. Mishler. First, the Board's timing is suspect because it initiated proceedings against Dr. Mishler five years after he treated the patients in question, when the Board knew that WMC had a five-year retention policy, and the evidence had already been destroyed or soon would be destroyed. Although the Board knew that Dr. Mishler had declared bankruptcy and could not afford counsel, it attempted to shift the burden of obtaining evidence to Dr. Mishler when he was no longer privileged to obtain the material and lacked the funds necessary to challenge the Board's decision. Thus, the degree of willfulness of the offending party, namely, the Board, is high. Second, Dr. Mishler, the non-offending party, would be prejudiced by a lesser sanction because he would still have a public reprimand on his record and would still encounter impediments when reapplying for a license in Nevada. Third, the Board's failure to retain the records relevant to the license revocation proceedings against Dr. Mishler demonstrates a significant degree of discovery abuse, and consequently, a severe sanction of dismissal of the Board's charges is appropriate. Fourth, the records have been irreparably lost. Fifth, the merits of the allegations against Dr. Mishler were inadequately addressed because neither he nor any of the witnesses had the opportunity to view the X-rays and diagnostic films. Sixth, the sanction of dismissal furthers the policy of deterring the Board from similar abuses in future disciplinary actions and license revocation proceedings. We therefore conclude that the Board had the duty to marshal and preserve the evidence, and that sanctions against it are appropriate because of its failure in that regard.
Furthermore, due to the absence of important records, the evidence does not support the findings with respect to cases five and seven. In both cases, the expert witness for the Board testified only with regard to the hospital records, and he never saw Dr. Mishler's office records, the X-rays, or the myelograms. In both cases, Dr. Mishler sought consultation with other physicians before surgery, and the evidence did not reveal that any
[109 Nev. 287, Page 296]
further consultation was necessary. Dr. Mishler's surgeries were successful, the symptoms vanished, and neither patient had any complaint against Dr. Mishler about the outcome. Moreover, two neurosurgeons testified that the surgeries were within the standard of care. While this court gives great deference to admin
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