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Szymborski v. Spring Mountain Treatment Center

Supreme Court of Nevada

October 26, 2017


         Appeal from a district court order dismissing a medical malpractice action. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Senior Judge, and Joanna S. Kishner, Judge.

          Garman Turner Gordon LLP and Eric R. Olsen, Las Vegas, for Appellant.

          Hall Prangle & Schoonveld, LLC, and Tyson J. Dobbs and Michael E. Prangle, Las Vegas, for Respondents.



          PICKERING, J.

         This is an appeal from a district court order dismissing a complaint against a medical treatment center for failure to attach a medical expert affidavit pursuant to NRS 41A.071. The district court determined that the allegations in appellant's complaint regarding the discharge of his son from respondent's treatment center were for medical malpractice, and because appellant did not attach a medical expert affidavit, his complaint required dismissal under NRS 41A.071. Appellant contends that the district court erred in dismissing his complaint because his claims are based in ordinary negligence, not medical malpractice, and therefore, an affidavit was not required. We agree as to appellant's claims for negligence, social-worker malpractice, gross negligence, negligence per se, and negligent hiring, supervision, and training, and disagree as to his claim for professional negligence. We therefore affirm in part, reverse in part, and remand.


         We accept as true the following facts alleged in appellant's complaint: Appellant Lee Szymborski's (Szymborski) adult son, Sean Szymborski (Sean), was admitted to Spring Mountain Treatment Center (Spring Mountain) for care and treatment due to self-inflicted wounds. When it came time to discharge Sean, licensed social workers undertook the discharge planning, but also delegated some tasks to a Masters of Arts (MA). Szymborski and Sean had a turbulent relationship, and Sean was discharged with diagnoses of psychosis and spice abuse. A social worker documented that Szymborski directed a case manager not to release Sean to Szymborski's home upon discharge and that the case manager would help Sean find alternative housing. Spring Mountain nurses also documented that Sean did not want to live with his father, noting that he grew agitated when talking about his father and expressed trepidation about returning to his father's home. Due to this ongoing conflict, Sean participated in treatment planning to find housing independent of Szymborski.

         On the day of Sean's release, an MA met with Sean to confirm the address of the apartment where Sean planned to live upon discharge. The MA noted, and Sean's continuing patient care plan confirmed, that Sean was vague about the apartment's address and wanted to stop at his father's house first to retrieve his debit card before going to his own apartment. The MA and case manager never verified that Sean had arranged to live elsewhere, and informed Sean that they would only give him enough money to take a taxi to his father's home. Spring Mountain did not inform Szymborski that they were releasing Sean, nor did they inform him that they were sending Sean to his residence that day. After being dropped off, Sean vandalized Szymborski's home, causing $20, 000 in property damage, then disappeared until his arrest three weeks later. Szymborski was not home when Sean arrived.

         Szymborski then filed a complaint with the State of Nevada Department of Health and Human Services-Division of Public and Behavioral Health (Division) about Sean's discharge and Spring Mountain's disregard of the discharge planning obligations imposed on it by NAC 449.332. After investigation, the Division issued a report crediting Szymborski's claims and finding that Spring Mountain committed multiple violations of NAC 449.332.

         In his complaint, Szymborski asserted four claims against Spring Mountain, its CEO, Daryl Dubroca, and various social workers and MAs (collectively, Spring Mountain): negligence (count I); professional negligence (count II); malpractice, gross negligence, negligence per se (count III); and negligent hiring, supervision, and training (count IV). Szymborski attached the Division's report to his complaint, but not an expert medical affidavit. Spring Mountain moved to dismiss the complaint because Szymborski failed to attach an expert medical affidavit pursuant to NRS 41A.071, [1] The district court granted Spring Mountain's motion to dismiss, finding that the claims in the complaint were for medical malpractice and required an expert medical affidavit. Szymborski appeals.


         "This court rigorously reviews de novo a district court order granting an NRCP 12(b)(5) motion to dismiss, accepting all of the plaintiffs factual allegations as true and drawing every reasonable inference in the plaintiffs favor to determine whether the allegations are sufficient to state a claim for relief." DeBoer v. Sr. Bridges of Sparks Fam. Hosp,, 128 Nev. 406, 409, 282 P.3d 727, 730 (2012). A complaint should only be dismissed for failure to state a claim if "it appears beyond a doubt that it could prove no set of facts, which, if true, would entitle it to relief." Id., at 410, 282 P.3d at 730 (internal quotation marks omitted). In contrast, NRS 41A.071 provides that "[i]f an action for medical malpractice ... is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without a[ ] [medical expert] affidavit."[2]


         Spring Mountain argues that because Szymborski's claims involve employees of a hospital rendering services, the claims must be for medical malpractice and NRS 41A.071's affidavit requirement applies. However, when a hospital performs nonmedical services, it can be liable under principles of ordinary negligence. See Deboer, 128 Nev. at 411-12, 282 P.3d at 731-32 ("[A] healthcare-based corporation's status as a medical facility cannot shield it from other forms of tort liability when it acts outside of the scope of medicine."). "[U]nder general negligence standards, medical facilities have a duty to exercise reasonable care to avoid foreseeable harm when they furnish nonmedical services, " Id., at 412, 282 P.3d at 732. For example, in Deboer, the district court erred in classifying the patient's claim as one for medical malpractice as opposed to ordinary negligence because the claim "was not related to medical diagnosis, judgment, or ...

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