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Peck v. Zipf

Supreme Court of Nevada

December 28, 2017

FRANK MILFORD PECK, Appellant,
v.
DAVID R. ZIPF, M.D.; AND MICHAEL D. BARNUM, M.D., Respondents.

         Appeal 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.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          HARDESTY, J.

         NRS 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.

         We 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.

         FACTS AND PROCEDURAL HISTORY

         Appellant 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.

         In 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 fatal.

         DISCUSSION

         On 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 court.

         Standard ...


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