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.