DAVID KAYLE MCCLEVE PA v. EDWARD COUSINEAU EXECUTIVE DIRECTOR THE NEVADA STATE BOARD OF MEDICAL EXAMINERS AND PATRICIA HALSTEAD ESQ HEARING OFFICER (2026)

ORDER DENYING PETITION FOR WRIT OF MANDAMUS

This original petition for writ of mandamus arises from a disciplinary proceeding before the Nevada Board of Medical Examiners (NBME) against Petitioner David McCleve.

In cases involving disciplinary proceedings, the NBME may appoint a hearing officer to preside over a proceeding, or it may conduct the hearing itself. NAC 633.400. If an appointed hearing officer hears the case, they must prepare written findings and recommendations and serve the findings and recommendations on the parties and the NBME for its review. NRS 622A.300. Among a range of available actions, the NBME may reject the findings and recommendations or approve them. NRS 622A.300(5).

In the instant matter, The NBME filed a complaint for malpractice against McCleve, but the initial appointed hearing officer indicated on the record the case would be dismissed. But, problematically, the initial hearing officer submitted no written findings and recommendations to the NBME prior to his departure from the position. As a result, no findings and recommendations were reviewed and finalized. After the initial hearing officer's departure, discovery orders entered by the initial hearing officer were rescinded and the matter was set for an administrative trial de novo. McCleve now seeks a writ of mandamus to prevent the de novo trial—based on the fact the initial hearing officer indicated the case would be dismissed.

A writ of mandamus is available to compel the performance of an act that the law requires or to control 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). Ultimately, whether to consider a writ of mandamus is within this court's sole discretion. Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). Having reviewed the petition and supporting documents, we conclude McCleve has failed to demonstrate writ relief is warranted. See Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (explaining that petitioner bears the burden of demonstrating extraordinary writ relief is warranted).

McCleve may not seek judicial review until the NBME issues a final decision. See NRS 622A.400 (“[A] party may not seek any type of judicial intervention or review of a contested case until after the contested case results in a final decision of the regulatory body”); NRS 622A.300(5) (“The findings and recommendations of the hearing panel or officer do not become final unless they are approved by the regulatory body after review.”). Because the initial hearing officer never entered written findings and recommendations to the NBME prior to his departure from the position we conclude that writ relief here would be contrary to NRS 622A.400. Accordingly, we ORDER the petition DENIED.

It is so ORDERED.

Herndon, C.J.

Pickering, J.

Parraguirre, J.

Bell, J.

Stiglich, J.

Cadish, J.

Lee, J.