The Nevada Supreme Court has ruled that the “common knowledge” exception to the affidavit requirement for professional negligence claims against a health care provider can be applied to determine whether a claim constituted negligence.
The Accidental Death
Mary Curtis was a resident at Life Care Center of Las Vegas nursing home. Life Care Center was contracted to administer the professional services necessary to maintain Curtis’s physical and mental health.
While Curtis was under Life Care Center’s care, licensed nurse Ersheila Dawson mistakenly administered to Curtis 120 milligrams of morphine that had been intended for another patient. Nurse Dawson soon realized her mistake and reported it to her supervisor. Under physician’s orders, Life Care Center administered Narcan, another drug, to Curtis to counteract the morphine. Life Care Center decided not to send Curtis to the hospital at this time; instead, it monitored her vital signs.
The following day, Curtis’s daughter, Laura Latrenta, came to Life Care Center to check on her mother. Latrenta found her unresponsive. Curtis was taken to the hospital, where she passed away two days later. Curtis’s death certificate lists morphine intoxication as the cause of death.
The Negligence Suit
Latrenta sued Life Care Center as Curtis’s heir and the representative of the estate. The estate brought claims against Life Care Center: abuse and neglect of an older person, wrongful death, and tortious breach of the implied covenant of good faith and fair dealing. The estate did not assert claims for professional negligence, name Nurse Dawson as a defendant, or file an expert affidavit.
Life Care Center filed a motion for summary judgment, arguing that although the estate hadn’t specifically asserted professional negligence claims, that was the essence of the claims. Under Nevada law, any lawsuit for professional negligence must be filed along with an affidavit that supports the allegations in the action, is submitted by a medical expert who practices or practiced in that area, identifies the negligent defendant by name, and specifically sets forth the specific acts or acts of negligence. Nev. Rev. Stat. 41A.071
The district court agreed with Life Care Center’s characterization of the claims as sounding in professional negligence. Because the estate had failed to file a supporting medical expert affidavit, the district court dismissed the case. The estate appealed.
The Nevada Supreme Court
On appeal, the estate argued that it was excused from complying with NRS 41A.071 because its claims against Life Care Center were for ordinary and not professional negligence or that the common knowledge exception applied. Therefore, an expert affidavit was not required.
The Nevada Supreme Court determined that the estate’s complaint was based on two underlying allegations: (1) that Nurse Dawson administered morphine to Curtis that had been prescribed for another patient, and (2) Life Care Center failed to properly monitor and care for Curtis.
The court ruled that the second claim was based on professional negligence, but that that the first claim was a claim for ordinary negligence. The court reasoned that there was no professional judgment in administering the morphine; the nurse had simply given Curtis the wrong drug. The court ruled that the act of administering another patient’s morphine to Curtis was an ordinary negligence claim and therefore the estate was not required to submit an expert affidavit to pursue a negligence claim for this act. This could also be characterized as the “common knowledge” exception to the rule that an expert witness is required to prove professional negligence.