United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
OPINION & ORDER DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT (ECF NOS. 375, 377, 379, AND 380)
the Court is Defendant St. Rose Dominican Hospital's
Motion for Summary Judgment (ECF No. 375), Defendant Jonathan
Bernstein's Motion for Summary Judgment (ECF No. 377),
Defendants Bernstein, Ltd., Annette Logan, and Jeremy
Logan's Motion for Summary Judgment (ECF No. 379), and
Defendant Alan Ikeda's Motion for Summary Judgment (ECF
No. 380). For the reasons discussed below, the Motions for
Summary Judgment are granted.
cases arises out of the treatment of the Plaintiff's
minor son, Derek Bryce Johnson, for acute lymphoblastic
leukemia (ALL). Plaintiff alleges that each of the Defendants
provided negligent medical treatment to Derek, leading to his
wrongful death and/or shortening his life expectancy, and
causing the negligent infliction of emotional distress to the
Plaintiff by making her watch her son suffer unnecessarily.
The Defendants do not deny that they provided the decedent
with medical treatment, but dispute the claims that they were
negligent, that they caused the decedent's wrongful
death, that they shortened the decedent's life
expectancy, and that they caused the decedent to suffer
unnecessarily. Specifically, Plaintiff alleges and the Court
has permitted causes of action for: (a) medical
malpractice/negligence and (b) negligent infliction of
filed the Complaint in this case on April 16, 2013. (ECF No.
1). The Complaint did not include an expert medical affidavit
as required by NRS §41A.071. Defendants filed several
motions to dismiss based on lack of an expert medical
affidavit, lack of jurisdiction, and lack of res ipsa
loquitur. (ECF Nos. 174, 176, 178, 210, and 220). On
January 27, 2016, this Court held a hearing in which it
granted the motions to dismiss the res ipsa loquitur
claims and granted Plaintiff leave to amend the Complaint to
file an expert medical affidavit. (ECF No. 272). Plaintiff
filed the most recent Amended Complaint on February 10, 2016,
which is the operative pleading here. (ECF No. 274). It
includes an expert medical affidavit. On March 14, 2017, this
Court held a status conference in which it reopened discovery
for seventy-five days. Plaintiff was ordered to produce a
notice of expert disclosure and testimony, CVs, and expert
reports within thirty days. (ECF No. 351). At the close of
this limited discovery period, Defendants timely filed their
Motions for Summary Judgment. (ECF Nos. 375, 377, 379, 380).
Plaintiff filed a Response to all Motions for Summary
Judgment on August 6, 2017. (ECF No. 393). Defendant St. Rose
Dominican Hospital replied on August 18, 2017. (ECF No. 395).
Defendant Jonathan Bernstein replied on August 18, 2017. (ECF
No. 396). Defendants Bernstein, Ltd., Annette Logan, and
Jeremy Logan replied on August 18, 2017. (ECF No. 397).
Defendant Alan Ikeda replied on August 20, 2017. (ECF No.
398). The Court held a hearing in this matter on January 26,
2018 and took the Motions for Summary Judgment under
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show “that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In ruling on a motion for summary judgment,
the court views all facts and draws all inferences in the
light most favorable to the nonmoving party. Johnson v.
Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir.
the party seeking summary judgment does not have the ultimate
burden of persuasion at trial, it “has both the initial
burden of production and the ultimate burden of persuasion on
a motion for summary judgment.” Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d
1099, 1102 (9th Cir. 2000). “In order to carry its
[initial] burden of production, the moving party must either
produce evidence negating an essential element of the
nonmoving party's claim or defense or show that the
nonmoving party does not have enough evidence of an essential
element to carry its ultimate burden of persuasion at
trial.” Id. If the movant has carried its
initial burden, “the nonmoving party must produce
evidence to support its claim or defense.” Id.
at 1103. In doing so, the nonmoving party “must do more
than simply show that there is some metaphysical doubt as to
the material facts . . . Where the record taken as a whole
could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.”
Scott v. Harris, 550 U.S. 372, 380 (2007)
(alteration in original) (internal quotation marks omitted).
However, the ultimate burden of persuasion on a motion for
summary judgment rests with the moving party, who must
convince the court that no genuine issue of material fact
exists. Nissan Fire, 210 F.3d at 1102.
Medical Malpractice Claims
prevail on her medical malpractice claims against the various
Defendants, Plaintiff must establish the following: (1) that
the healthcare provider's conduct departed from the
accepted standard of medical care or practice; (2) that the
healthcare provider's conduct was both the actual and
proximate cause of the plaintiff's injury; and (3) that
the plaintiff suffered damages. Prabhu v. Levine,
930 P.2d 103, 107 (Nev. 1996) (citing Perez v. Las Vegas
Medical Center, 805 P .2d 589, 590-591 (Nev. 1991)). NRS
§41A.100(1) provides the standard for proving medical
malpractice in Nevada:
Liability for personal injury or death is not imposed upon
any provider of health care based on alleged negligence in
the performance of that care unless evidence consisting of
expert medical testimony, material from recognized medical
texts or treatises or the regulations of the licensed medical
facility wherein the alleged negligence occurred is presented
to demonstrate the alleged deviation from the accepted
standard of care in the ...