Evolution of the Expert Affidavit Requirement in Med-Mal Cases

By Chief Judge Jerry Wiese

It may seem that over the years, decisions relating to medical malpractice law in Nevada have been inconsistent. In reality, cases with varying facts and issues have been presented to our appellate courts and the law has evolved. The evolution of the expert “affidavit of merit” requirement is a perfect example. Some of us recall the medical-legal screening panel which required expert testimony to support a claim for malpractice. Failure to attach the required expert affidavit subjected the case to dismissal. NRS 41A.071 was enacted in 2002, ending the screening panel process and mandating the requirement of an “affidavit of merit” to support a complaint in Nevada’s Eighth Judicial District Court. Since then, the courts have stayed busy interpreting NRS 41A, and its mandates with regard to the affidavit, and I’ve provided below a general overview of the highlights:

• Expert affidavits must be completed by an expert practicing in a “substantially similar” but not the “same” area as the defendant. Borger v. Eighth Judicial Dist. Ct. 120 Nev. 1021, 102 P.3d 600 (2004).
• An expert affidavit is not required when the malpractice action is based solely on “res ipsa loquitur.” Szydel v. Markman, 121 Nev. 453, 117 P.3d 200 (2005).
• Complaints filed without a supporting medical expert affidavit are void ab initio, must be dismissed, and cannot be cured by amendment. Washoe Medical Center v. Second Judicial Dist Ct., 122 Nev. 1298, 148 P.3d 790 (2006), Fierle v. Perez, 125 Nev. 728, 219 P.3d 906 (2009) and Wheble v. Eighth Judicial Dist. Ct., 128 Nev. 119, 272 P.3d 134 (2012).
• An unsworn declaration made under penalty of perjury is sufficient. Buckwalter v. Eighth Judicial Dist. Ct., 234 P.3d 920 (2010). See also Mountainview Hospital, Inc. v. Eighth Judicial Dist. Ct., 128 Nev. 180, 273 P.3d 861 (2012).
• Parties asserting claims for contribution based on medical malpractice must satisfy the affidavit requirement of NRS 41A.071. Pack v. LaTourette, 128 Nev. 264, 277 P.3d 1246 (2012).
• NRS 41A.071 does not require the affidavit to be physically attached to the complaint, or even physically filed. If the complaint references a pre-existing affidavit, which is then filed and served with the complaint, and no party contests the authenticity, the affidavit may be treated as part of the complaint. Baxter v. Dignity Health, 131 Nev. 759, 357 P.3d 927 (2015).
• If a claim involves medical diagnosis, treatment, or judgment, and the standard of care requires explanation from a medical expert, the claim is for medical malpractice and an affidavit is required. Szymborski v. Spring Mountain Treatment Center, 133 Nev. 638, 403 P.3d 1280 (2017).
• A claim of negligent hiring, supervision or training, does not require an affidavit when underlying facts do not fall within the definition of medical malpractice or professional negligence. Id.
• Affidavit requirements of NRS 41A.071 do not violate equal protection or due process, under a “rational basis” analysis. Peck v. Zipf, 133 Nev. 890, 407 P.3d 775 (2017).
• Leaving an IV needle in a patient does not qualify under the “res ipsa loquitur” exception to the affidavit requirement because insertion of a needle is not “surgery.” Id.
• The “res ipsa loquitur” exception to the affidavit requirement (dealing with a foreign substance being left in the body) does not apply to “bacteria.” Montanez v. Sparks Family Hospital, Inc., 137 Nev. 742, 499 P.3d 1189 (2021).
• A premises liability claim, based on the medical facility’s lack of cleanliness, is inherently linked to the provision of medical treatment, and consequently, an affidavit of merit is required. Id.
• Claims under NRS Chapter 41A and claims for “elder abuse,” under NRS 41.1395 are “separate and distinct.” Yafchak v. South Las Vegas Medical Investors LLC, 519 P.3d 37 (2022).
• NRS 41A.071 does not require any discussion of legal or proximate causation. An affidavit of merit is sufficient if it opines as to the professional standard of care and the breach of that standard of care. Engelson v. Dignity Health, 542 P.3d 430 (2023).
• An affidavit must “identify by name, or describe by conduct, each provider of health care who is alleged to be negligent” and “set forth factually a specific act or acts of alleged negligence separately as to each defendant in simple, concise and direct terms.” Monk v. Ching, 531 P.3d 600 (2023). Compare with Zohar v. Zbiegien, 130 Nev. 733, 334 P.3d 402 (2014).
• The “res ipsa loquitur” exception to the affidavit requirement does not apply “where a foreign object was left in the body during a procedure other than surgery.” Monk v. Ching, 531 P.3d 600 (2023).
• The “common knowledge” affidavit exception previously recognized by the court in Estate of Curtis was overruled. Limprasert v. PAM Specialty Hospital of Las Vegas LLC, 550 P.3d 825 (2024).

About the author

Chief Judge Jerry Wiese serves in Department 30 of the Eighth Judicial District Court Bench. Since taking the bench in January of 2011, Judge Wiese has presided over numerous trials, both civil and criminal, and has presided over many settlement conferences. He coordinates the Judicial Settlement Conference Program and presides over the Medical Malpractice Sweeps. He was elected Chief Judge by his peers and has served as the Chief Judge of the District Court since July 2022.

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This article was originally published in the Communiqué (Oct. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-oct-2024/.

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