FARNAZ NOROZIAN AS ADMINISTRATOR FOR THE ESTATE OF FARAZ NOROZIAN AND POKROY MEDICAL GROUP OF NEVADA LTD PEDIATRIX MEDICAL GROUP OF NEVADA v. JAIME ALVAREZ AND ELIZABETH ALVAREZ INDIVIDUALLY AND AS NATURAL PARENTS OF MINOR VALLEY HEALTH SYSTEMS LLC AND SUMMERLIN HOSPITAL MEDICAL CENTER LLC (2025)

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS

This is an original petition for a writ of mandamus challenging the district court's affirmance of the discovery commissioner's report and recommendations.¹

On February 23, 2020, real parties in interest Jaime and Elizabeth Alvarez (collectively, the Alvarezes) took their minor child, X.A., to Summerlin Hospital, where he was admitted and transferred to the pediatric intensive care unit for treatment of acute pancreatitis and hyperglycemia.² While X.A. was in the pediatric intensive care unit, Dr. Faraz Norozian and other healthcare professionals provided treatment to X.A. However, they did not consult with an infectious disease specialist or collect fungal cultures until March 1, 2020—nearly a week after his admission. X.A. later developed septic shock and respiratory distress related to a fungal infection, requiring intubation and several procedures at a different hospital. X.A. was hospitalized for several months while he received necessary treatment.

The Alvarezes subsequently filed a lawsuit against Dr. Norozian and other defendants, including petitioner Pokroy Medical Group of Nevada, dba Pediatrix Medical Group of Nevada, which employed Dr.(Norozian as well as other defendants. The Alvarezes brought claims of negligence; corporate negligence; medical malpractice; and negligent hiring, training, and supervision. From the outset, the Alvarezes have consistently maintained that Dr. Norozian was unfit to treat X.A. and other patients due to what they alleged was a serious history of substance abuse and emotional instability. However, they removed these types of allegations from the operative complaint after the district court, pursuant to an NRCP 12(f) motion brought by Dr. Norozian, instructed them to “reduce the allegations regarding Dr. Norozian's sensitive history in a way that is consistent with [their] claims, but with less specificity.”

During the course of the litigation, Dr. Norozian passed away due to liver failure. Thereafter, petitioner Farnaz Norozian, as the administrator of the estate of Faraz Norozian (the estate), was substituted in the place of Dr. Norozian.³

Following Dr. Norozian's death, the estate objected to certain interrogatory responses and requests for production propounded by the Alvarezes. In particular, the estate objected to the production of Dr. Norozian's medical and psychological records related to substance abuse, if such records existed from May 3, 2018, to September 17, 2022. The Alvarezes also moved to compel Interrogatory No. 10 from the plaintiffs’ second set of interrogatories, which asked, “Was [Dr, Norozian] ever suspended or required to take leave during the time period of May 3, 2018 through September 17, 2022?”

Regarding the medical records, the estate argued that the request sought “protected health information about Dr. Norozian, which [was] irrelevant to the present litigation,” thereby invoking the doctor-patient privilege. See NRS 49.225 (recognizing the confidentiality of communications between a patient and their doctor as privileged); see also NRS 49.235(1) (allowing the personal representative of a deceased patient to assert the privilege after the patient's death).

In response, the Alvarezes moved to compel discovery, arguing that the requests were permissible under NRCP 26(b)(1), which outlines the scope of discovery, because the information was relevant to their claims. Petitioners and other parties below opposed the Alvarezes’ motion to compel and moved for a protective order to prevent the disclosure of Dr. Norozian's medical records. The discovery dispute was brought before the discovery commissioner for a hearing in April 2024.

At the hearing, the Alvarezes acknowledged that they did not observe any signs of impairment in Dr. Norozian during their interactions with him. However, they claimed there were “documented” instances of him appearing visibly impaired while treating another patient. When the discovery commissioner asked for details on these “documented” instances, the! Alvarezes simply replied that they had deposition testimony from a separate tort case concerning another patient, which they had disclosed. The transcript of the deposition testimony shows that the deponent testified that, based on several observations, including “erratic” behavior and “bloodshot eyes,” she believed Dr. Norozian was impaired while treating her daughter, which occurred approximately four months after Dr. Norozian's treatment of X.A.

In response to the Alvarezes’ arguments, petitioners and other defendants contended that the Alvarezes were attempting to invoke the patient-litigant exception to the doctor-patient privilege under NRS 49.245(4) to access Dr. Norozian's medical records. However, they argued that this attempt should fail because, as required by Mitchell v. Eighth Judicial District Court, 131 Nev. 163, 359 P.3d 1096 (2015), there was no factual basis to suggest that Dr. Norozian was impaired or had some other condition when treating X.A. such that his medical records would be relevant to an element or defense of the case. They also argued that the deponent's statements from a separate case, without a conviction, arrest record, or admission by Dr. Norozian that he had engaged in substance abuse, were insufficient to justify the release of Dr. Norozian's medical records for in camera review by the discovery commissioner. Thus, the patient-litigant exception to the doctor-patient privilege did not apply.

After the hearing, the discovery commissioner found in her report and recommendations that the Alvarezes demonstrated good cause for compelling the discovery of Dr. Norozian's medical records and related information. She noted that, “[p]laintiffs have asserted claims against him—and his estate—for substantial injuries he caused to a gravely ill child in his care,” and the requested discovery was relevant to those claims. The commissioner concluded that “[p]roducing the information to [p]laintiffs does not, alone, prejudice [d]efendants in any way” as an in camera review of the medical records would protect any irrelevant material. Thus, the commissioner determined that the benefit of an in camera review outweighed any burden in producing Dr. Norozian's medical records. The discovery commissioner recommended that the district court direct petitioners to subpoena Dr. Norozian's medical and psychological records for the period from May 3, 2018, to September 17, 2022, and submit them to the district court for in camera review. The discovery commissioner also recommended that petitioners provide a supplemental response to Interrogatory No. 10.

Following a hearing, the district court issued an order adopting the discovery commissioner's report and recommendations. Subsequently, petitioners filed the present writ petition challenging the district court's order and seeking to compel the district court to grant their request for a protective order.

Writ relief is appropriate

A writ of mandamus is available to compel the performance of an act that the law requires or to control manifest abuse or an arbitrary or capricious exercise of discretion. NRS 34.160; Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). This extraordinary relief may be available if petitioners do not have a plain, speedy, and adequate remedy in the ordinary course of law. NRS 34.170; Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Whether a petition for a writ of mandamus will be considered is within the appellate court's sole discretion. Smith, 107 Nev. at 677, 818 P.2d at 851. In the discovery context, Nevada appellate courts have entertained writ petitions involving the disclosure of privileged information, as there would be no adequate remedy at law that could restore the confidentiality of such information once it is disclosed. See Aspen Fin. Servs., Inc. v. Eighth Jud. Dist. Ct., 128 Nev. 635, 639-40, 289 P.3d 201, 204 (2012) (“[W]rit relief may be available when it is necessary to prevent discovery that would cause privileged information to irretrievably lose its confidential nature and thereby render a later appeal ineffective.”); see also Valley Health, LLC v. Eighth Jud. Dist. Ct., 127 Nev. 167, 171-72, 252 P.3d 676, 678-79 (2011) (entertaining a writ petition that challenged a discovery order compelling the disclosure of purportedly privileged information); cf. Venetian Casino Resort, LLC v. Eighth Jud. Dist. Ct., 136 Nev. 221, 222-23, 467 P.3d 1, 3-4 (Ct. App. 2020) (entertaining a writ petition that challenged an order requiring production of unredacted prior incident reports).

Here, the challenged order is not appealable, see NRAP 3A(b) (listing certain types of orders as appealable), and petitioners have no available remedy to protect the asserted confidentiality of Dr. Norozian's medical records if disclosed, or his suspension history if an interrogatory response is compelled, see Valley Health, 127 Nev. at 171-72, 252 P.3d at 678-79. We therefore elect to entertain this writ petition. See Smith, 107 Nev. at 677, 818 P.2d at 851.

The district court exceeded its authority when it ordered petitioners to produce Dr. Norozian's medical records

In their petition, petitioners argue that to invoke the patient-litigant exception under NRS 49.245(4) and override the doctor-patient privilege, actual evidence—not mere speculation—must show that Dr. Norozian was impaired during X.A.’s treatment.⁴ They contend that the Alvarezes have no objective basis for their discovery requests and are instead relying solely on statements made by a deponent in another case, which speculated about Dr. Norozian's substance abuse and cause of death. In response, the Alvarezes cite deposition testimony from several witnesses documenting Dr. Norozian's erratic behavior, including the deponent's statement from the other lawsuit that she believed Dr. Norozian was impaired while treating her daughter, and the fact that Dr. Norozian ultimately died from liver failure, as actual evidence supporting their request.

Under NRS 49.245(4), which governs the patient-litigant exception, “[t]here is no [doctor-patient privilege] ․ [a]s to written medical or hospital records relevant to an issue of the condition of the patient in any proceeding in which the condition is an element of a claim or defense.” For the patient-litigant exception to apply, the party seeking to overcome the privilege must show that the “condition of the patient” is “an element of a claim or defense” in the proceeding. NRS 49.245(4) (emphasis added). Thus, the Alvarezes needed to show that Dr. Norozian's alleged substance abuse was an element of at least one of their four claims—negligence, corporate negligence, medical malpractice, or negligent hiring, training, and supervision—to justify applying the patient-litigant exception. See id.

In Mitchell, the Nevada Supreme Court held that, in the context of a medical malpractice claim, the key issue is whether the practitioner's conduct fell below the standard of care, not the reason for it.⁵ 131 Nev. at 174-75, 359 P.3d at 1103-04. Therefore, a doctor's diminished capacity and evidence of the doctor's drug addiction is not an “element” of a medical malpractice claim. Id. at 175, 359 P.3d at 1104. The Nevada Supreme Court's holding in Mitchell controls the disposition of this case. In Mitchell, the supreme court explained that, to succeed in a medical malpractice claim, the plaintiff must show that the negligent doctor's conduct “fell below the standard of care and caused ․ injuries; legally [the doctor's] diminished capacity doesn't matter.” Id. at 174-75, 359 P.3d at 1104. Therefore, under Mitchell, Dr. Norozian's purported substance abuse is not an element of the Alvarezes’ medical malpractice claim, and therefore, that claim does not support the application of the patient-litigation exception.

However, the Alvarezes’ negligent hiring, training, and supervision claim can support application of the patient-litigant exception. See Mitchell, 131 Nev. at 175, 359 P.3d at 1104. In a situation similar to that alleged by the Alvarezes, the Nevada Supreme Court in Mitchell concluded that such a claim requires the plaintiff to demonstrate that the employer knew or should have known the doctor was unfit for the position, thereby making the doctor's condition an “element” of the claim under NRS 49.245(4). See id.

Although the Alvarezes’ claim for negligent hiring, training, and supervision may provide a basis for applying the patient-litigant exception, the Nevada Supreme Court has emphasized that the exception “demands close scrutiny,” even when documents are sought for in camera review, when the claim or defense invoking the exception is asserted by someone other than the patient. See id. at 175-76, 359 P.3d at 1104. The policy behind this “close scrutiny” is that “[a] stranger to the doctor-patient relationship ․ may be tempted to speculate as to the physical or mental condition of his or her adversary, especially if that will open the door to embarrassing or painful revelations.” Id. at 175, 359 P.3d at 1104. To address this concern, the Nevada Supreme Court has held that in order to invoke the patient-litigant exception, the “nonpatient must establish a basis in fact for the district court to conclude that the condition exists and is an element of a legitimate claim or defense.” Id. at 175-76, 359 P.3d at 1104 (citing State v. Worthen, 222 P.3d 1144, 1149-50 (Utah 2009) (holding that a non-patient must demonstrate to a “reasonable certainty” that the records sought contain evidence material to the claim or defense to proceed with an in camera review of them)).

In this case, the Alvarezes are asserting the patient-litigant exception and, because they are non-patients seeking a patient's medical records, “close scrutiny” is required to determine whether the exception applies. See id. Regarding petitioners’ challenge that the Alvarezes lack sufficient evidence to seek Dr. Norozian's medical records under the patient-litigant exception, we agree. Here, the Alvarezes were asked during their depositions whether they believed Dr. Norozian was impaired while treating X.A., and they provided no testimony to support that Dr. Norozian was engaged in substance abuse at that time. For example, when Jaime Alvarez was asked if he ever noticed any signs or symptoms that Dr. Norozian was under the influence of any substance, he replied, “Not that I can think of. It was a long time ago, but not that I remember.” Both Jaime and Elizabeth Alvarez's main criticism of Dr. Norozian was that he did not act with urgency, but this concern, standing alone, does not establish a factual basis that Dr. Norozian was under the influence of any substance while caring for X.A.

The Alvarezes also reference deposition testimony from Dr.

Kenneth Kim, one of Dr. Norozian's former colleagues and another defendant in the underlying action, to argue that Dr. Norozian exhibited erratic and aggressive behavior at work. Although Dr. Kim noted that he had received reports of Dr. Norozian being “aggressive” toward another physician and nursing staff, he did not testify that Dr. Norozian was impaired and, as a result, his testimony did not establish a factual basis to invoke the patient-litigant exception pursuant to NRS 49.245(4). See id.

Furthermore, the deponent in the other lawsuit against Dr. Norozian testified that she believed Dr. Norozian was impaired based on her observations of his “bloodshot” eyes and “aggressive” behavior while caring for her daughter, which occurred four months after Dr. Norozian treated X.A. Cf. id. at 165, 175-76, 359 P.3d at 1098, 1104 (considering police records and domestic violence convictions showing substance abuse three and six months after a negligent operation as well as the doctor's admission he engaged in substance abuse as providing a “basis in fact” for an in camera review of a physician's medical records related to substance abuse treatment). Although this is the only testimony in the record suggesting that Dr. Norozian was possibly impaired during the treatment of any patient, it is not directly related to Dr. Norozian's treatment of X.A. And the deponent's testimony that Dr. Norozian had bloodshot eyes, which can be a classic sign of intoxication, see Weaver v. State, DMV, 121 Nev. 494, 499, 117 P.3d 193, 197 (2005), is still inconclusive evidence of impairment as it may be caused by other factors, see, e.g., State v. Ellison, 611 S.E.2d 129, 135 (Ga. Ct. App. 2005) (holding that evidence of bloodshot eyes does not “require a finding of impairment”). Thus, the only testimony in the record supporting an allegation of possible visual impairment when Dr. Norozian was treating patients is that Dr. Norozian had bloodshot eyes four months after he treated X.A. This limited testimony differs significantly from the evidence used in Mitchell to establish a basis in fact for an in camera review of a defendant-doctor's medical records for the claim involving negligent hiring.

The Nevada Supreme Court has cautioned against allowing a non-patient to invoke the patient-litigant exception without a “reasonable certainty” that the records sought contain evidence material to the claim, and the deponent's testimony in the subsequent lawsuit falls short of this standard. Mitchell, 131 Nev. at 176, 359 P.3d at 1104 (quoting Worthen, 222 P.3d at 1149-50). Unlike the direct and corroborated evidence in Mitchell, the deponent's observations are arguably subjective and speculative. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012) (“[T]estimony is speculative if it is based on guesswork or conjecture.”). The deponent's account of bloodshot eyes and Dr. Norozian's alleged aggressive behavior could have been attributed to factors unrelated to substance abuse or impairment. Further, bloodshot eyes and aggressive behavior months later does not establish that he was impaired while treating X.A. Likewise, Dr. Norozian's death from liver failure could have been the result of various diseases and conditions. Without substantial evidence of impairment, such as police reports or admissions by Dr. Norozian regarding his substance abuse, there is no evidence to support such abuse as a basis in fact, which is required to justify an in camera review of Dr. Norozian's medical records under the standards set forth in Mitchell, 131 Nev. at 175-76, 359 P.3d at 1104.

Thus, the patient-litigant exception does not apply, and because the patient-litigant exception was the only basis on which the Alvarezes maintained that Dr. Norozian's medical records should be produced, we conclude that district court erred in requiring the in camera review of Dr. Norozian's medical records. Consequently, the estate's request for a protective order should have been granted. See NRCP 26(c)(1) (stating that “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ․ forbidding the disclosure or discovery”); cf. Mitchell, 131 Nev. at 177, 359 P.3d at 1105.

The district court exceeded its authority by compelling petitioners to provide a supplemental response to Interrogatory No. 10 without sufficient findings

Petitioners also raise the issue of whether the district court manifestly abused its discretion by compelling a response to Interrogatory No. 10 concerning whether Dr. Norozian was ever suspended or required to take leave. Generally, “[d]iscovery matters are within the district court's sound discretion, and we will not disturb a district court's ruling regarding discovery unless the court has clearly abused its discretion.” Club Vista Fin. Servs., LLC v. Eighth Jud. Dist. Ct., 128 Nev. 224, 228, 276 P.3d 246, 249 (2012). Nevertheless, the scope of discovery in civil actions is limited to matters, not privileged, “relevant to any party's claims or defenses and proportional to the needs of the case.” NRCP 26(b)(1) (emphasis added).

NRCP 26(b)(1) outlines several factors for district courts to consider regarding proportionality:

[(1)] the importance of the issues at stake in the action, [(2)] the amount in controversy, [(3)] the parties’ relative access to relevant information, [(4)] the parties’ resources, [(5)] the importance of the discovery in resolving the issues, and [(6)] whether the burden or expense of the proposed discovery outweighs its likely benefit.

Id. “Upon consideration of these factors, a court can—and must—limit proposed discovery that it determines is not proportional to the needs of the case.” Venetian Casino Resort, 136 Nev. at 226, 467 P.3d at 5 (internal quotation marks omitted).

Here, the Alvarezes are seeking information spanning two years after Dr. Norozian's treatment of X.A., up until September 17, 2022, which raises concerns about relevancy, proportionality, and overbreadth. See In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (“Discovery orders requiring document production from an unreasonably long period ․ are impermissibly overbroad.”); see also Seibel v. Eighth Jud. Dist. Ct., 138 Nev. 753, 758-59, 520 P.3d 350, 355-56 (2022) (reviewing a district court discovery order for overbreadth). Yet, the Alvarezes provided no argument in their motion to compel or on appeal as to why the timeframe of the interrogatory request was relevant and proportional to their case. Further, the district court did not address the temporal proximity of Interrogatory No. 10 as it related to Dr. Norozian's treatment of X.A., and whether such discovery was relevant and proportionate to the needs of the case. See Venetian Casino Resort, 136 Nev. at 226, 467 P.3d at 6 (concluding in the context of a motion for a protective order that “[a] district court abuses its discretion when it makes neither factual findings nor legal arguments to support its decision” (alteration and internal quotation marks omitted)).

To prevail on their medical malpractice and negligence claims, the Alvarezes would need to prove causation between the time Dr. Norozian allegedly breached the standard of care and when X.A. sustained damages.⁶ See Bourne v. Valdes, 140 Nev., Adv. Op. 74, 559 P.3d 361, 364 (2024) (“A successful cause of action for medical malpractice in Nevada requires a showing that the medical provider breached an accepted standard of care and that this breach was both the actual and proximate cause of the plaintiff's injury or death resulting in damages.” (citing NRS 41A.100)). Additionally, to succeed in their claim of negligent hiring, training, and supervision, the Alvarezes must demonstrate that Dr. Norozian's employers knew or should have known he posed a danger before treating X.A. See Freeman Expositions, LLC v. Eighth Jud. Dist. Ct., 138 Nev. 775, 784, 520 P.3d 803, 811 (2022) (“The tort of negligent hiring imposes a general duty on the employer to conduct a reasonable background check on a potential employee to ensure that the employee is fit for the position.” (internal quotation marks omitted)).

Consequently, any requests for disciplinary action taken against Dr. Norozian in unrelated matters for actions following his treatment of X.A. could be overly broad or not relevant to the Alvarezes claims. See Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589, 591 (1991) (“As a general rule in medical malpractice cases, the plaintiff must prove that the alleged negligence more probably than not caused the ultimate injury ․”); see also Original Roofing Co. v. Chief Admin. Officer of OSHA, 135 Nev. 140, 143, 442 P.3d 146, 149 (2019) (holding that employer knowledge is established by demonstrating “that the employer either knew, or, with the exercise of reasonable diligence, could have known of the presence of the violative condition” (internal quotation marks omitted)). As the existing record provides no reason why any alleged disciplinary history of Dr. Norozian for the two years after he treated X.A. at Summerlin Hospital would be relevant to the Alvarezes’ claims, Interrogatory No. 10 appears overly broad without further factual findings to support this scope of discovery.⁷ See In re United Fire Lloyds, 578 S.W.3d 572, 580 (Tex. App. 2019) (“Overbroad requests encompass time periods ․ or activities beyond those at issue in the case, matters of questionable relevancy to the case at hand.”); see also Venetian Casino Resort, 136 Nev. at 229, 467 P.3d at 8. Without specific findings to support otherwise, limiting the inquiry to the period prior to and through X.A.’s treatment would ensure the request remains relevant and proportional to the needs of the case. See Venetian Casino Resort, 136 Nev. at 229, 467 P.3d at 8. In light of the foregoing, the district court abused its discretion by compelling the petitioners to answer Interrogatory No. 10 without analyzing whether the information sought was relevant and proportionate to the needs of the case.⁸ Accordingly we,

ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to vacate its order and to grant a protective order related to the production of Dr. Norozian's medical records and further response to Interrogatory No. 10.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Real parties in interest, Summerlin Hospital Medical Center, LLC, and Valley Health System, LLC, filed a joint notice of non-opposition to the writ petition.

2.   We do not recount the facts except as necessary to our disposition.

3.   Farnaz Norozian is Dr. Norozian's sister and is also a doctor.

4.   The parties have not disputed that the records sought by the Alvarezes would be protected by the doctor-patient privilege unless the patient-litigant exception applies.

5.   After Mitchell was decided, the Nevada Legislature amended NRS 49.245 twice and renumbered the statute. See 2015 Nev. Stat. 248, § 2, at 1458 (effective October 1, 2015); 2015 Nev. Stat., ch. 329, § 12, at 1805. Although the post-Mitchell amendments do not affect the disposition of this appeal, the patient-litigant exception now appears at NRS 49.245(4) rather than NRS 49.245(3), which was the subsection cited in Mitchell's discussion of the exception.

6.   These elements must also be established to succeed in their vicarious liability claim, which relies on Dr. Norozian's medical malpractice or negligence. See McCrosky v. Carson Tahoe Reg'l Med. Ctr., 133 Nev. 930, 933, 408 P.3d 149, 152 (2017) (“The supervisory party need not be directly at fault to be liable, because the subordinate's negligence is imputed to the supervisor.”).

7.   However, nothing in this order prevents the Alvarezes from serving additional interrogatories seeking Dr. Norozian's disciplinary history for acts occurring any time before and during the time he was treating X.A. or any disciplinary history directly related to Dr. Norozian's treatment of X.A., even if such discipline was not imposed until after his treatment of X.A., unless otherwise confidential by statute or regulation.

8.   We recognize that there may be circumstances where Dr. Norozian's disciplinary history after he treated X.A. could be potentially relevant. However, the district court must determine the proper scope of such discovery based on a proper showing of relevancy and proportionality. The district court should conduct the requisite analysis and make findings on why the time period in question is relevant and proportional to the needs of the case.