from a district court judgment on the pleadings in a medical
malpractice action. Eighth Judicial District Court, Clark
County; David B. Barker, Judge.
Holley, Driggs, Walch, Fine, Wray, Puzey & Thompson and
Rachel E. Donn and Andrea M. Gandara, Las Vegas, for
Appellant Frank Milford Peck.
Alverson Taylor Mortensen & Sanders and David J.
Mortensen, Candace C. Her ling, and Brigette E. Foley, Las
Vegas, for Respondent Michael D. Barnum, M.D.
McCormick, Barstow, Sheppard, Wayte & Carruth, LLP, and
Jill M. Chase and Dylan P. Todd, Las Vegas, for Respondent
David R. Zipf, M.D.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
41A.071 provides that a district court must dismiss a
plaintiffs medical malpractice complaint if it is not
accompanied by an expert affidavit. However, under NRS
41A.100(1), a plaintiff need not attach an expert affidavit
for a res ipsa loquitur claim. In this appeal, we consider
whether either statutory res ipsa loquitur or the common
knowledge res ipsa loquitur doctrine provides an exception to
the expert affidavit requirement for suit. We also must
determine whether NRS 41A.071 is unconstitutional under the
Equal Protection Clause or Due Process Clause, facially, or
as applied to inmates or indigent persons.
reiterate that the enumerated res ipsa loquitur exceptions in
NRS 41A. 100 supersede the common knowledge res ipsa loquitur
doctrine. Because appellant's complaint failed to show
that any object left in his body was the result of
"surgery, " the appellant's complaint did not
satisfy the elements for the statutory exception of res ipsa
loquitur. Thus, appellant's complaint was properly
dismissed for lack of an expert affidavit. We further
conclude that NRS 41A.071 does not violate equal protection
or due process.
AND PROCEDURAL HISTORY
Frank Peck is, and has at all relevant times been,
incarcerated at High Desert State Prison in Indian Springs.
In December 2013, Peck was admitted to Valley Hospital. While
at the hospital, Peck was under the care of respondents, Dr.
David R. Zipf and Dr. Michael D. Barnum. In his complaint
against the two doctors, Peck claimed that after his release
from the hospital, he discovered a foreign object under the
skin of his left hand.
particular, Peck alleged one cause of action for medical
malpractice claiming that Dr. Zipf and Dr. Barnum left a
needle in his hand. In his complaint, Peck cited NRS
41A.100(1)(a) and Fernandez v. Admirand, 108 Nev.
963, 969, 843 P.2d 354, 358 (1992), in which we referenced
NRS 41A. 100(1) and recognized that expert testimony may not
be necessary in medical malpractice cases where the alleged
wrongdoing "is a matter of common knowledge of
laymen." While Peck referenced the res ipsa loquitur
doctrine, he did not claim that he had surgery. Doctors Zipf
and Barnum moved for judgment on the pleadings, and the
district court granted their motion, concluding that
Peck's complaint did not meet the requirements of NRS
41A.100(1)(a), and thus, his failure to attach an affidavit
of a medical expert to his complaint under NRS 41A.071 was
appeal, Peck argues that the district court erred in
dismissing his complaint for lack of an affidavit because his
complaint did not require an affidavit under NRS
41A.100(1)(a). Peck further contends that even if he did not
meet the requirements for a statutory res ipsa loquitur cause
of action, his claim falls under the common knowledge res
ipsa loquitur doctrine at common law. Peck also argues that
the affidavit requirement in NRS 41A.071 violates his equal
protection rights and deprives him of due process. We
disagree with Peck's contentions and affirm the district