Must a medical expert’s affidavit accompany a medical malpractice complaint at the time of filing?

Medical Malpractice 1

Baxter v. Dignity Health (Nev. Supreme Ct. – Sep. 24, 2015)

This case arises from an order dismissing a medical malpractice action under NRS 41A.071. Adopted in 2002 to curb baseless malpractice litigation, NRS 41A.071 provides that a district court shall dismiss a medical malpractice action if the action is filed without an affidavit or declaration from a medical expert supporting the allegations of malpractice. In this case, the plaintiff consulted with a medical expert, from whom he obtained the supporting declaration required, before filing suit. For reasons unclear, the plaintiff did not attach the declaration to the complaint. Instead, he filed the complaint by itself, then filed the separately captioned declaration the next morning. The complaint incorporated the declaration by reference, and vice versa, and the two documents were served together on the defendants before the statute of limitations ran. The issue is whether NRS 41A.071 required dismissal of the complaint.

Baxter is a type 1 diabetic who presented to the emergency room in August 2012 with an acute infection. He alleged that the respondent hospital and doctors committed medical malpractice by misdiagnosing his infection as viral, not bacterial. Baxter further alleged that, had the correct diagnosis been timely made, his cervical spine abscess should and could have been successfully treated with antibiotics. The delay in proper diagnosis and treatment has allegedly left him a ventilator-dependent tetraplegic who will require 24-hour nursing care for the rest of his life.

Baxter obtained copies of his medical records in December 2012, which the parties seemingly agreed triggered the one-year statute of limitations in NRS 41A.097(2). Baxter’s counsel retained an internist and infectious disease specialist, Dr. Cadden, to review the medical records. On August 16, 2013, Dr. Cadden signed a declaration under penalty of perjury stating that he had reviewed the medical records and “the complaint that I understand will be filed together with this Declaration.” The declaration was lengthy; it addressed the respondents’ standards of care, their asserted breaches, and the consequent harm to Baxter. In it, Dr. Cadden also declared, “I believe that the pertinent facts that I noted when reviewing the medical records regarding William Nathan Baxter’s medical care and treatment during the times pertinent to this case are summarized accurately in Paragraphs 14 through 22 of the [then draft] complaint.

Baxter’s complaint was filed at 1:43 p.m. on August 19, 2013, three days after Dr. Cadden dated and signed his declaration. The complaint sets forth its allegations of malpractice, then alleges that “Plaintiff is filing, at or about the time of the filing of this Complaint, the Declaration of Joseph Cadden, M.D., pursuant to Nevada Revised Statutes § 41A.071 in support of the allegations set forth herein.” For reasons unknown, the Cadden declaration was not attached to or filed at the same time as the complaint. Instead, the declaration was filed the next day, August 20, 2013, at 9:56 a.m. The summonses were issued and timely served, along with the complaint and the declaration, on respondents.

In November 2013, respondents moved to dismiss on the ground that Baxter’s malpractice action was defective because it was filed without the expert affidavit supporting its allegations required by NRS 41A.071. After briefing and argument, the district court granted the motion to dismiss. By then, the statute of limitations had run on Baxter’s claims.

As written at the time pertinent to this appeal, NRS 41A.071 read as follows:

If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.

The affidavit can take the form of either a sworn affidavit or an unsworn declaration made under penalty of perjury.

NRS 41A.071’s affidavit-of-merit requirement imposes an added pleading obligation on medical malpractice plaintiffs, beyond the obligations imposed on plaintiffs generally by the Nevada Rules of Civil Procedure. The Supreme Court of Nevada believed this created tension between the Legislature’s substantive policy decision to deter frivolous malpractice litigation by imposing a pre- suit affidavit-of-merit requirement and the liberal pleading policies embedded in the Nevada Rules of Civil Procedure, which the court adopted pursuant to its inherent authority to adopt procedural rules designed to secure litigants their fair day in court.

The Court explained that the question in this case is whether, under the Nevada Rules of Civil Procedure, yet consistent with the deterrent policies set by NRS 41A.071, Baxter’s complaint and Dr. Cadden’s declaration should be read together as sufficient to survive a motion to dismiss. In evaluating a motion to dismiss, courts primarily focus on the allegations in the complaint.

The Court noted that NRS 41A.071 does not state that the affidavit of merit must be physically attached to the malpractice complaint—or even physically filed, for that matter. It says, “If 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 an affidavit, supporting the allegations contained in the action.” In Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334 P.3d 402 (2014), the court held that under NRCP 10(c), concerning exhibits attached to pleadings, a medical malpractice complaint and its supporting affidavit should be read together, in effect, incorporating the affidavit into the complaint. Similarly, where the complaint incorporates by reference a preexisting affidavit of merit, which is thereafter filed and served with the complaint, and no party contests the authenticity of the affidavit or its date, the affidavit of merit may properly be treated as part of the pleadings in evaluating a motion to dismiss.

Baxter’s complaint incorporated Dr. Cadden’s declaration and alleged that the declaration was being filed at or about the time of the filing of this Complaint. Dr. Cadden’s declaration, filed just five judicial hours after the complaint, verified the truth of this allegation; it was sworn under penalty of perjury and dated August 16, 2013, three days before Baxter filed the complaint. The Court believed the better practice would have been to attach the declaration to the complaint and file the two documents together. But the Court explained that Baxter literally complied with NRS 41A.071 and the respondent medical providers were not negatively affected in any way by the separate submissions. The complaint incorporated the declaration and both were served together on the respondent medical providers, who were able to challenge the sufficiency of the declaration—one did, in their motions to dismiss. They thus were in no worse position than if Baxter had attached the affidavit to the complaint instead of filing it one day later.

The Court noted that under NRCP 8(f), all pleadings shall be so construed as to do substantial justice. Treating Baxter’s pleadings as comprising the complaint and the declaration the complaint incorporates comports with NRCP 8(f) and case law interpreting the federal analog to NRCP 12(b)(5). This action was not brought without the prior expert medical review NRS 41A.071 demands, consistent with the statute’s overall purpose: to ensure that plaintiffs file non-frivolous medical malpractice actions in good faith based upon competent expert medical opinion. The Court believed that substantial justice was done by reading the complaint as incorporating the declaration in deciding dismissal. The Court determined that because Baxter did not file his medical malpractice action without a medical expert’s declaration, dismissal under NRS 41A.071 was not required and the Court reversed and remanded for further proceedings.

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