EUGENE P. LIBBY, D.O., Petitioner,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JERRY A. WIESE, DISTRICT JUDGE, Respondents, and MEGAN HAMILTON, Real Party in Interest
Original petition for a writ of mandamus challenging a district court order denying a motion for summary judgment in a medical malpractice action.
Lewis Brisbois Bisgaard & Smith, LLP, and S. Brent Vogel and Erin E. Dart, Las Vegas, for Petitioner.
Potter Law Offices and Cal J. Potter, III, Las Vegas, for Real Party in Interest.
BEFORE GIBBONS, C.J., PICKERING, HARDESTY, PARRAGUIRRE, DOUGLAS, CHERRY and SAITTA, JJ.
Nevada's medical malpractice statute of limitations, NRS 41A.097(2), provides that an action against a health care provider must be filed within one year of the injury's discovery and three years of the injury date. In the underlying district court action, Megan Hamilton brought a claim for injury against Dr. Eugene Libby more than three years after she discovered that a serious infection persisted in her knee, despite Dr. Libby's surgical intervention. Dr. Libby moved the district court for summary judgment on the basis that Ms. Hamilton's claims were barred by the three-year statute of limitation. The district court did not agree and denied the motion for summary judgment, resulting in Dr. Libby seeking this court's interlocutory review. According to Dr. Libby, NRS 41A.097(2) mandates that judgment be entered in his favor.
Based on the plain language of the statute, which establishes " date of injury" as the outer boundary for claim accrual, we conclude that NRS 41A.097(2)'s three-year limitation period begins to run when a plaintiff suffers appreciable harm, regardless of whether the plaintiff is aware of the injury's cause. Here, because Ms. Hamilton suffered appreciable harm to her knee more than three years before she filed her complaint, the district court was required to grant Dr. Libby's motion for summary judgment. Accordingly, mandamus relief is appropriate in this instance.
FACTS AND PROCEDURAL HISTORY
On November 8, 2005, petitioner Eugene P. Libby, D.O., an orthopedic surgeon, performed emergency surgery on real party in
interest Megan Hamilton's left knee. During a follow-up appointment on November 28, 2005, Ms. Hamilton complained of pain in her knee that had started one week earlier. Dr. Libby aspirated the knee, and then hospitalized Ms. Hamilton and placed her on additional antibiotics. The aspirated cultures from Ms. Hamilton's knee were sent for testing and tested positive for a bacterium known as Methicillin-Resistant Staphylococcus Aureas (MRSA). At that point, an infectious disease doctor was called in for consultation. After her discharge from the hospital, Ms. Hamilton continued to be treated by the infectious disease doctor for her infection and was seen by Dr. Libby several times to monitor the healing of her knee. Ms. Hamilton's MRSA infection persisted.
On May 16, 2006, in an effort to combat the MRSA infection, Dr. Libby performed another surgery on Ms. Hamilton's knee to remove surgical screws and washers, which were apparently impeding the antibiotics from surrounding and killing the MRSA infection. But the infection continued, and on August 21, 2006, Dr. Libby lanced Ms. Hamilton's knee and ...