MARGARET L. SCHMUTZ; JIMMY SCHMUTZ; GARY SCHMUTZ; SHERRI L..MCCOIG; VALERIE WATKINS; AND THE ESTATE OF CLARK P. SCHMUTZ, Appellants,
MICHAEL S. BRADFORD, M.D.; ROSS SEIBEL, M.D.; AND SOUTHWEST MEDICAL ASSOCIATES, INC., Respondents.
ORDER AFFIRMING IN PART, REVERSING IN PARTAND REMANDING
This is an appeal from a district court summary judgment in a medical malpractice action. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.
This case arises out of the failure to act on information that showed possible metastatic disease in decedent Clark P. Schmutz's spine. Schmutz was referred to respondent Michael Bradford, M.D., an orthopedic surgeon, for an orthopedic consultation after X-rays revealed multilevel degenerative disease of the spine and an aged fracture of the pelvis. Dr. Bradford diagnosed Schmutz with a pelvic fracture and spinal stenosis and ordered an MRI. The radiologist's report on the MRI indicated possible metastatic disease and recommended a follow-up bone scan for further evaluation. Dr. Bradford did not inform Schmutz of the possible metastatic disease, but instead treated Schmutz with pain medication and referred him to respondent Ross Siebel, M.D., an anesthesiologist, for pain management injections. Schmutz was treated for back pain for four months. During this time, Schmutz lost 40 pounds and was in severe pain. Schmutz died just six days after a subsequent doctor read the MRI report, saw the potential metastatic disease, and sent Schmutz to an oncologist who diagnosed him with bone cancer.
Appellants filed a medical malpractice suit against respondents Dr. Bradford, Dr. Siebel, and Southwest Medical Associates, Inc. (SMA). They alleged claims for wrongful death, negligent infliction of emotional distress, loss of consortium, and gross negligence. Attached to the complaint, appellants provided affidavits from Joseph Knotz, M.D., a family practice physician, and Robert Fink, M.D., a neurological spine surgery specialist. Dr. Knotz opined that, to a reasonable degree of medical probability, Dr. Bradford and Dr. Seibel breached the standard of care in failing to note the possibility of metastatic disease. Dr. Knotz further opined that Dr. Bradford and Dr. Seibel's negligence delayed diagnosis of Schmutz's cancer, a delay that was directly responsible for Schmutz's increased morbidity and suffering and probably contributed to his death. Dr. Fink stated that his opinion, to a reasonable degree of medical probability, was that Dr. Bradford and Dr. Seibel breached the standard of care by failing to review the MRI and failing to notify Schmutz of the possible metastatic cancer. He opined that the delay in diagnosis caused by respondents resulted in Schmutz's unnecessary pain and suffering.
Appellants later filed an amended complaint to correct deficiencies in their initial expert affidavits. Appellants attached an additional affidavit from Jason Brajer, M.D. to their amended complaint. Dr. Brajer, a certified anesthesiologist working in pain management, stated that his opinion, to a reasonable degree of medical probability, was that Dr. Bradford and Dr. Seibel breached the standard of care when they failed to note the radiologist's comment concerning the possibility of metastatic disease, proximately causing Schmutz's death. It was his opinion that their failure to note the possibility of metastatic disease caused a delay in diagnosis that was responsible for Schmutz's increased morbidity and suffering and contributed to Schmutz's death.
Respondents then moved for summary judgment based on a lack of causation, because all three of appellants' medical experts stated that they would defer to an oncologist regarding Schmutz's possible outcome if his cancer had been treated without delay. The district court granted summary judgment in favor of respondents, explaining that appellants failed to provide evidence of proximate causation on the wrongful death claim. The court further indicated that the loss of consortium claims failed as they were not supported by a wrongful death claim and were speculative.
On appeal, appellants assert that the district court erred in (1) holding that the medical negligence claim failed, (2) granting summary judgment because appellants presented genuine issues of material fact as to causation on the wrongful death claim, and (3) determining that Schmutz's family lacked standing to bring loss of consortium claims. We conclude that while the district court properly granted summary judgment on the wrongful death claim, it erred in dismissing the medical negligence claim and the derivative loss of consortium claims.
Standard of review
We review a district court's order granting summary judgment de novo, without deference to the findings of the lower court. Francis v. Wynn Las Vegas, LLC, 127 Nev. __, ___, 262 P.3d 705, 714 (2011).
Summary judgment is proper only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." NRCP 56(c). "[W]hen reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
Pleading wrongful death and medical negligence in the alternative
Appellants contend that the district court should not have extinguished the medical negligence claim along with the wrongful death claim. They assert that they pleaded the wrongful death and medical negligence claims in the alternative to avoid being forced to make an untenable election of remedies prior to trial. In response, Dr. Siebel and SMA argue that in Nevada, the wrongful death cause of action subsumes all others, and accordingly, the district court properly granted summary judgment with respect to those claims. They assert that allowing appellants to pursue both claims would result in double recovery and statutory contradictions.
This issue turns on whether NRS 41.085 and NRS 41.100 are mutually exclusive. Nevada's wrongful death statute, NRS 41.085, allows a decedent's heirs and personal representatives to maintain an action for damages if the decedent's death is caused by the wrongful act or neglect of another. The survival of action statute, NRS 41.100, provides that "no cause of action is lost by reason of the death of any person, but may be maintained by or against the person's executor or administrator." NRS 41.100(1). We conclude that, by their plain language, NRS 41.085 and NRS 41.100 are not mutually exclusive, and claims under Nevada's survival of action statute are separate and distinct from wrongful death claims. Appellants therefore should have been permitted to plead both claims in the alternative. See Albios v. Horizon Cmtys., Inc., 122 Nev. 409, 418, 132 P.3d 1022, 1028 (2006) ("Whenever possible, this court will interpret a rule or statute in harmony with other rules and statutes." (internal quotations omitted)).
The negligence claim
Appellants further contend that they set forth a cognizable prima facie case for medical negligence based on the failure of respondents to act on the possible metastatic disease that the MRI revealed, causing a delay in treatment and unnecessary pain and suffering, surgical treatments, and medical bills. Appellants argue that in addition to the lack of opportunity for palliative care, Schmutz was also denied advance notice to put his affairs in ...