Published on:

NV Supreme Court Ruling Provides Clarity on When “Affidavit of Merit” is Required in Medical Malpractice Cases

In Egan v. Chambers DPM, the Nevada Supreme Court decided that NRS 41A.071’s “affidavit of merit” requirement should not apply to professional negligence claims against podiatrists. Under Nevada law NRS 41A.071, for a “medical malpractice or dental malpractice” action to proceed, the plaintiff must file an “affidavit of merit” with the court. An “affidavit of merit” is a sworn statement from a medical expert opining that the claim has merit. Should a plaintiff fail to file an “affidavit of merit,” the statute requires their case be dismissed.

Egan began when a woman named Tammy Egan went to Gary Chambers, a doctor of podiatric medicine, for surgery on her left foot. Following the surgery, Egan developed gangrene and was forced to undergo 3 additional surgeries. The experience left Egan with a partially amputated foot, permanently disabled, and unable to work. On July 2008, Egan filed suit against Chambers and his employer Southwest Medical Associates, Inc. for professional negligence. While the suit was pending, the Nevada Supreme Court decided Fierle v. Perez suggesting that NRS 41A.071 required an “affidavit of merit” be filed for professional negligence actions against medical corporations. Referencing this new case, the district court accepted a motion to dismiss from the defense based on Egan’s failure to procure an “affidavit of merit.” Egan appealed and the Nevada Supreme Court accepted her case.

In Egan, the Nevada Supreme Court partially overturned their decision in Fierle deciding it misinterpreted NRS 41A.071. They determined the statute only requires an “affidavit of merit” for cases against those medical doctors licensed under NRS Chapter 630 and 633. To come to this conclusion, the Court focused on NRS.41A.009’s definition of “medical malpractice” as the malpractice by “physicians, hospitals, and hospital employees.” Additionally, the statute narrowly defined “physicians” as those “person[s] licensed under NRS Chapters 630 or 633.” Since podiatrists are licensed under neither but instead NRS Chapter 635, the Court held they do not fit the statute’s definition of “physicians.” The Court concluded that NRS 41A.071A did not require Egan procure an “affidavit of merit” and the district court’s dismissal was in error.

The case makes one thing clear. Going forward, when filing claims against medical doctors, malpractice attorneys will have to carefully reference NRS 630 and 633 in determining when an “affidavit of merit” is required.