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Zohar v. Zbiegien

Supreme Court of Nevada

September 18, 2014

MAX ZOHAR, A MINOR; AND DAFNA NOURY, INDIVIDUALLY AND AS THE NATURAL MOTHER OF MAX ZOHAR, Appellants,
v.
MICHAEL ZBIEGIEN, M.D., AN INDIVIDUAL; EMCARE, INC., A FOREIGN CORPORATION; EMCARE PHYSICIAN SERVICES, INC, A FOREIGN CORPORATION; EMCARE PHYSICIAN PROVIDERS, INC., A FOREIGN CORPORATION; AND RACHEL LOVERA, R.N., AN INDIVIDUAL, Respondents

Appeal from a district court order, certified as final under NRCP 54(b) , dismissing respondents from a medical malpractice action. Eighth Judicial District Court, Clark County; Michael Villani, Judge.

Reversed and remanded.

Eglet Wall Christiansen and Artemus W. Ham and Erica D. Entsminger, Las Vegas, for Appellants.

Alverson, Taylor, Mortensen & Sanders and David J. Mortensen and Ian M. Houston, Las Vegas, for Respondents Michael Zbiegien, M.D.; EmCare, Inc.; EmCare Physician Services, Inc.; and EmCare Physician Providers, Inc.

Hall Prangle & Schoonveld, LLC, and Michael E. Prangle and Casey W. Tyler, Las Vegas, for Respondent Rachel Lovera, R.N.

GIBBONS, C.J. We concur: Pickering, J., Hardesty, J., Parraguirre, J., Douglas, J., Cherry, J., Saitta, J.

OPINION

Page 403

BEFORE THE COURT EN BANC.

GIBBONS, C.J.:

In this opinion, we consider whether an expert affidavit attached to a medical malpractice complaint, which otherwise properly supports the allegations of medical malpractice contained in the complaint but does not identify all the defendants by name and refers to them only as staff of the medical facility, complies with the requirements of NRS 41A.071. We conclude that in order to achieve NRS 41A.071's purpose of deterring frivolous claims and providing defendants with notice of the claims against them, while also complying with the notice-pleading standards for complaints, the district court should read a medical malpractice complaint and affidavit of merit together when determining whether the affidavit meets the requirements of NRS 41A.071. In this case, the expert affidavit, while omitting several names, adequately supported the allegations of medical malpractice against respondents contained in the complaint and provided adequate notice to respondents of the claims against them. We therefore reverse the district court's order of dismissal and remand

Page 404

this case to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Appellant Dafna Noury, mother of then-16-month-old Max Zohar (collectively, the Zohars), took Max to the emergency room at Summerlin Hospital for treatment of a parrot bite on his right middle finger. The medical staff at Summerlin Hospital, including respondents Michael Zbiegien, M.D., and Rachel Lovera, R.N., irrigated Max's finger, repaired it, then dressed and bandaged the finger. Several days later, Dr. Zbiegien and a nurse examined Max's finger again, and Noury asserts that they only removed and reapplied the outer dressing while the original wound dressing was left in place. When Max returned several days later to have the dressing removed, the Zohars allege that the hospital staff was unable to remove the inner dressing from Max's finger because it was stuck to Max's laceration. As a result, the dressings had to be soaked off. Once the staff removed the dressing, they noted that Max's finger was discolored. The emergency team consulted two hand ...


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