FERGUSON v. PRIME HEALTHCARE SERVICES RENO LLC (2020)

ORDER OF AFFIRMANCE

Dorisa Elaine Ferguson appeals from a district court order dismissing a medical malpractice action. Second Judicial District Court, Washoe County; David A. Hardy, Judge.

This case involves allegations of medical malpractice brought by Ferguson for the death of her adult daughter, Cynthia, who had been admitted to respondent Prime Healthcare Services-Reno, LLC, d/b/a Saint Mary's Regional Medical Center (“Saint Mary's”), for complications associated with pregnancy. The procedural posture of the underlying case is convoluted, with Ferguson initiating the case not with a complaint, but by filing a motion requesting that the medical examiner's autopsy report be deemed to satisfy the expert affidavit requirement of NRS 41A.071, or that the district court find that NRS 41A.100(1)(d)’s rebuttable presumption of negligence applied such that an expert affidavit was not necessary. This motion was denied and Ferguson subsequently filed a medical malpractice complaint, along with numerous other documents, although she failed to provide the required affidavit of a medical expert. Rather than dismiss the case, the district court struck this complaint and the associated materials that she submitted, and directed Ferguson to submit an amended complaint, cautioning her that if it was a complaint for medical malpractice, it required an affidavit from a medical expert.

Despite the court's direction, Ferguson once again filed a complaint without an expert affidavit. In so doing, she asserted essentially the same facts set forth in her previous submission, but did so in the context of asserting various purported non-medical malpractice causes of action. This new complaint was filed against Saint Mary's and respondent Erickson Ob-Gyn Associates, Ltd. (“Erickson”). Saint Mary's and Erickson both moved for dismissal, which was granted over Ferguson's opposition. This appeal followed.

While Ferguson's appellate arguments are not entirely clear, she argues that the district court erred in denying her motion with respect to the rebuttable presumption of NRS 41A.100(1)(d). She also appears to argue that the district court erred in determining that the medical examiner's autopsy report did not satisfy the expert affidavit requirement. In presenting these arguments, she is effectively asserting that she was not required to attach an affidavit from a medical expert in support of her medical malpractice complaint. Saint Mary's and Erickson argue that dismissal of the complaint was proper based on the inapplicability of NRS 41A.100(1)(d) and Ferguson's failure to attach the required expert affidavit.

We initially consider Ferguson's arguments with respect to the rebuttable presumption of NRS 41A.100(1)(d). This statutory provision permits certain types of cases where medical malpractice or professional negligence is alleged to be filed without an expert affidavit, assuming there is factual support for a rebuttable presumption. Ferguson's appellate arguments focus on her pre-complaint motion to apply the presumption in an effort to show the district court erred in refusing to grant this request. But that argument fails as her motion did not set forth any factual basis upon which to apply NRS 41A.100(1)(d)’s rebuttable presumption of negligence. On appeal, Ferguson does make several statements that attempt to provide a factual basis for applying the rebuttable presumption, including asserting, without explanation, that the medical records support applying the presumption. But because Ferguson failed to present any of these alleged factual bases for applying the presumption in her arguments below, these assertions are waived and will not be considered on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (“A point not urged in the trial court ․ is deemed to have been waived and will not be considered on appeal.”).

Because Ferguson directs her arguments on this point at the denial of her motion to apply the presumption, she fails to present cogent arguments as to how her medical malpractice complaint properly invoked NRS 41A.100(1)(d)’s rebuttable presumption. See Edwards v. Emperors Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to consider issues that are not supported by cogent argument). Nonetheless, we have reviewed the pertinent complaint and conclude that it fails to set forth sufficient factual bases or otherwise support the application of the rebuttable presumption. Thus, Ferguson has failed to present any grounds to support the reversal of the district court's refusal to apply NRS 41A.100(1)(d)’s rebuttable presumption.

We next consider whether the district court properly dismissed Ferguson's complaint for failing to attach an expert affidavit. As a preliminary matter, because Ferguson did not show that the rebuttable presumption of negligence outlined in NRS 41 A.100(1)(d) applied, she was required to support her medical malpractice complaint with an expert affidavit in accordance with NRS 41A.071. Specifically, the affidavit must be submitted by a medical expert who practices, or practiced, in an area substantially similar to the type of practice engaged in at the time of the alleged processional negligence and must identify by name or describe by conduct each health care provider who is alleged to be negligent. Id. Further, the affidavit must factually set forth a specific act of negligence as to each defendant. Id. Failure to attach the required affidavit to such a complaint results in a dismissal of the complaint without prejudice. See id. (providing that the district court shall dismiss a professional negligence action without prejudice that is filed without a supporting medical expert affidavit); Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1306, 148 P.3d 790, 795 (2006) (“[W]hen a plaintiff has failed to meet NRS 41A.071’s expert affidavit requirement, the complaint is void ab initio and must be dismissed, without prejudice, and no amendment to cure an NRS 41A.071 defect is allowed.”).

Ferguson's arguments on this issue center on her assertion that she should have been able to use the medical examiner's autopsy report in place of the affidavit of a medical expert required by NRS 41A.071. In addressing this issue below, the district court found that, while the autopsy report may have supported some of her allegations, it failed to satisfy the other affidavit requirements. We agree and conclude that the district court properly determined a medical expert affidavit was required by NRS 41A.071, and that the autopsy report could not be used in lieu of it.

Given that Ferguson failed to establish that NRS 41A.100(d)’s rebuttable presumption applied and that she could not use the autopsy report in lieu of the affidavit required by NRS 41A.071, her failure to submit the required affidavit with her medical malpractice complaint necessitated dismissal without prejudice.¹ See Washoe Med. Ctr., 122 Nev. at 1306, 148 P.3d at 795. Thus, based on the foregoing, we

ORDER the judgment of the district court AFFIRMED.²

FOOTNOTES

1.   Despite correctly determining that the rebuttable presumption did not apply and that Ferguson could not substitute the medical examiner's autopsy report for the required affidavit of a medical expert, the district court nonetheless purported to allow Ferguson to amend her initial medical malpractice complaint to include an affidavit as required by NRS 41A.071. But amendment is not allowed to cure the failure to attach an affidavit under NRS 41A.071, and therefore, the district court erred when it failed to dismiss Ferguson's initial complaint without prejudice. See Washoe Med. Ctr., 122 Nev. at 1306, 148 P.3d at 795. Nevertheless, since the amended complaint was also deficient for the same reason—failure to attach the required affidavit—and was properly dismissed by the district court, we affirm.

2.   To the extent the parties raise arguments that are not specifically addressed herein, we have considered the same and conclude that they either do not provide a basis for relief or need not be reached given the disposition of this appeal.