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Segovia v. Eighth Judicial District Court of State of Nevada

Supreme Court of Nevada

December 28, 2017

JOCELYN SEGOVIA, PA-C, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MICHELLE LEAVITT, DISTRICT JUDGE, Respondents, and MADDEN DUDA, A MINOR, BY AND THROUGH JOVAN DUDA, HIS NATURAL FATHER AND GUARDIAN; AUTUMN MATESI, INDIVIDUALLY AND AS AN HEIR TO THE ESTATE OF MARY ANN HAASE; AND ROBERT ANSARA, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF MARY ANN HAASE, Real Parties in Interest.

         Original petition for a writ of prohibition or, in the alternative, mandamus challenging a district court order in a medical malpractice action.

          Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg, Joel D. Henriod, Abraham G. Smith, and Erik J. Foley, Las Vegas; John H. Cotton & Associates and John H. Cotton and Katherine L. Turpen, Las Vegas, for Petitioner.

          Murdock & Associates, Chtd., and Robert E. Murdock, Las Vegas; Eckley M. Keach, Chtd., and Eckley M. Keach, Las Vegas, for Real Party in Interest Madden Duda.

          Seegmiller & Associates and Clark Seegmiller, Las Vegas, for Real Parties in Interest Autumn Matesi and Robert Ansara, as Special Administrator of the Estate of Mary Ann Haase.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          HARDESTY, J.

         NRS Chapter 41A.035 limits the liability of "provider[s] of health care" by capping their damages in medical malpractice actions to $350, 000 and abrogating joint and several liability. The 2015 Legislature amended NRS 41A.017 to add physician assistants to the definition of "[p]rovider of health care." Petitioner Jocelyn Segovia, a physician assistant, is a defendant in a medical malpractice action accruing before the 2015 amendments were enacted. She petitions this court to determine whether the amendment clarified the existing definition of a provider of health care, so as to apply retroactively, or whether the amended definition operates prospectively only. Because the 2015 amendments expressly apply "to a cause of action that accrues on or after the effective date of this act, " see 2015 Nev. Stat., ch. 439, § 11, at 2529; S.B. 292, 78th Leg. (Nev. 2015), and Segovia fails to rebut the presumption that statutory amendments are applied prospectively, we deny her writ petition.

         FACTS AND PROCEDURAL HISTORY

         In February 2012, Mary Haase, mother of real party in interest Madden Duda, saw Dr. George Michael Elkanich regarding pain she was experiencing in her leg and back. Dr. Elkanich diagnosed Haase with bilateral lower extremity radiculopathy and recommended surgery. Dr, Elkanich chose physician assistant Jocelyn Segovia to assist in the procedure. The surgery took place on March 5, 2012, at Valley Hospital. During the surgery, Dr. Elkanich and/or Segovia allegedly tore, sliced, or punctured Haase's aorta, causing substantial blood loss and a drop in blood pressure. According to the coroner's report, Haase died mid-surgery from a laceration to her aorta and the ensuing blood loss.

         Madden Duda, along with real parties in interest Autumn Matesi and Robert Ansara, as special administrator of Haase's Estate (collectively, Duda), subsequently initiated a medical malpractice action. Duda moved for summary judgment as to Jocelyn Segovia. The motion sought to have the district court determine that Segovia was not a "[p]rovider of health care" per NRS 41A.017, and thus, not entitled to NRS Chapter 4lA's abrogation of joint and several liability or the damages cap of $350, 000. The district court granted Duda's motion, finding that Segovia was not entitled to the protections of NRS Chapter 41A because the language of NRS 41A.017 in effect at the time of the surgery did not cover physician assistants, and the subsequent 2015 amendment to the statute adding physician assistants only applies prospectively. Segovia then petitioned this court to answer the question of whether physician assistants are entitled to the statutory protections of NRS Chapter 41A for causes of action accruing before the effective date of the 2015 amendments.

         DISCUSSION

         Writ relief

         Segovia seeks relief in the form of a writ of prohibition or, in the alternative, mandamus. "This court has original jurisdiction to issue writs of mandamus and prohibition." MountainView Hosp., Inc. v. Eighth Judicial Dist Court, 128 Nev. 180, 184, 273 P.3d 861, 864 (2012); Nev. Const, art. 6, § 4. "A writ of prohibition is appropriate when a district court acts without or in excess of its jurisdiction." Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 907 (2008). "A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, or to control a manifest abuse or an arbitrary or capricious exercise of discretion." Id. at 39, 175 P.3d at 907-08 (alteration, footnote, and internal quotation marks omitted).

         Because a writ petition seeks an extraordinary remedy, this court has discretion whether to consider such a petition. Cheung v. Eighth Judicial Dist. Court,121 Nev. 867, 869, 124 P.3d 550, 552 (2005). Extraordinary writ relief may be available where there is no "plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170; NRS 34.330; Int'l Game Tech., Inc. v. Second Judicial Dist Court,124 Nev. 193, 197, 179 P.3d 556, 558 (2008). However, despite an available legal remedy, this court may still entertain a petition for writ "relief where the ...


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