Igtiben v. Eighth Jud. Dist. Ct.

140 Nev., Advance Opinion 1
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

CHRISTOPHER L. IGTIBEN, M.D.; No, 86567-COA
DIGNITY HEALTH, d/b/a ST. ROSE
DOMINICAN HOSPITAL-SAN MARTIN
CAMPUS; DIGNITY HEALTH
MEDICAL GROUP NEVADA, LLC; AND
FMB
DIGNITY HEALTH HOLDING
CORPORATION,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
KATHLEEN E. DELANEY, DISTRICT
JUDGE,
Respondents,
and
LINDA F. SMITH; THE ESTATE OF
KAMARIO MANTRELL SMITH;
EDWARD GAXIOLA PONS; LATOYA
NICHOLE TURNER; K.M.S.;
LAWANDA DENISE HARRIS; K.A.S.;
AND K.A.S.,
Real Parties in Interest.

Original petition for a writ of mandamus challenging a district
court order denying a rnotion to dismiss a complaint in a professional
negligence and wrongful death action.
Petition granted.

John H. Cotton & Associates, Ltd., and Adam Schneider and John H.
Cotton, Las Vegas,
for Petitioner Christopher L. Igtiben, M.D.

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Hutchison & Steffen, PLLC, and Courtney Christopher and Brittany A.
Lewis, Las Vegas,
for Petitioners Dignity Health, d/b/a St. Rose Dominican Hospital-San
Martin Campus; Dignity Health Medical Group Nevada, LLC; and Dignity
Health Holding Corporation.

Gallian Welker & Associates, L.C., and Nathan E. Lawrence, Michael I.
Welker, and Travis N. Barrick, Las Vegas,
for Real Parties in Interest.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

OPINION

By the Court, BULLA, J.:
In this original writ proceeding, we take the opportunity to
address the accrual date of professional negligence and wrongful death

claims under the applicable statute of limitations, NRS 41A.097(2).' We
emphasize that, unless there is an impediment to pursuing an action such
as the concealment of medical records, once the plaintiff or the plaintiffs
representative has received all necessary medical records documenting the
relevant treatment and care at issue, inquiry notice of a claim commences.
Here, real parties in interest were placed on inquiry notice when they
received the decedent's medical records of Christopher Igtiben, M.D.'s
treatment, which were in fact subsequently utilized by their expert to

'We originally resolved this petition in an unpublished order granting
the petition and issuing a writ of mandamus. Petitioners subsequently filed
a motion to publish the order as an opinion. We grant the motion and
replace our earlier order with this opinion. See NRAP 36(f).
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prepare his affidavit of merit. Because real parties in interest did not file
their complaint until after the pertinent statute of limitations expired, the
district court erred in failing to disrniss the complaint and writ relief is
warranted.
FACTS AND PROCEDURAL HISTORY
Kamario Mantrell Smith, an inmate, collapsed twice in prison,
three weeks after an unsuccessful heart surgery. Following his second
collapse, Kamario was transported to the San Martin Campus of St. Rose
Dominican Hospital (San Martin), where he was admitted for shortness of
breath, chest pains, and a rapid heart rate. On admission, it was believed
that Kamario had sickle cell trait (SCT), and a peripheral blood smear test
showed that Kamario's blood contained sickled cells.2 Shortly after,
petitioner Dr. Igtiben, an internal medicine hospitalist, ordered a contrast
CT angiograph of Kamario's chest, abdomen, and pelvis, which detected a
blood clot in his lung, an enlarged heart, fluid in his chest, and bilateral
pneumonia. Kamario was placed on an anticoagulant, which initially

A peripheral blood smear test provides health care providers with a
2
microscopic view of red and white blood cells and platelets; while results
from a peripheral smear test are not diagnostic, they may be used to assist
health care providers in making diagnoses. Peripheral Blood Smear,
Cleveland Clinic, https://my.clevelandclinic.org/health/diagnostics/22742-
peripheral-blood-smear-test (last visited Feb. 1, 2024).
A person with SCT carries the sickle cell gene but generally
experiences no complications from the condition. Questions and Answers
About Sickle Cell Trait, Nat'l Heart, Lung, and Blood Inst. (Sept. 22,
2010), https://www . nhlbi. nih.gov/news/2010/questions-and-answers- about-
sickle-cell-trait. In contrast, individuals with sickle cell anemia (also known
as sickle cell disease or SCD) have low hemoglobin levels and their red blood
cells become misshapen and take on the sickle shape. Id. Over time, sickle
cell anemia can cause damage to organs, including the brain, bones, lungs,
kidneys, liver, and heart. Id.
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stabilized him. However, the next day, his hemoglobin decreased, and he
became hypotensive. Kamario rapidly lost kidney function and experienced
renal failure. At this time, a diagnostic hemoglobin electrophoresis test
confirmed Kamario had sickle cell anemia, rather than SCT.3 The next
morning, November 25, 2019, Karnario's heart stopped, and resuscitation
efforts were unsuccessful.
On January 6, 2020, following Kamario's death, Kamario's
mother, real party in interest Linda F. Smith (RPII), received his medical
records from San Martin, which documented all the treatment and care
provided by Dr. Igtiben at issue here. RPII also obtained a copy of the death
certificate at some point, as evidenced by her attaching it to her May 12,
2020, probate filings. The death certificate listed the cause of death as
pulmonary infarction caused by a pulmonary embolism," with other
significant conditions listed as "acute renal [kidney] failure, [SCT],
hypertension and recurrent atrial fibrillation and atrial flutter." Although
not included in the record, the parties agree that the autopsy report notated
Kamario's manner of death to be "natural."
At the time of his death, Kamario had a civil rights action
pending against the Nevada Department of Corrections (NDOC) in federal
court, alleging NDOC's ongoing and continuing failure to properly treat or
accommodate his atrial fibrillation and irregular heartbeat. On April 2,
2020, RPII moved to substitute in for Kamario as a party in the federal case.

3"Hemoglobin electrophoresis uses electrical charges to separate
hemoglobin types so healthcare providers can compare the level of each
type with normal levels." Hemoglobin Electrophoresis, Cleveland
Clinic, https://my.clevelandclinic.org/health/diagnostics/22420-hemoglobin-
electrophoresis (last visited Feb. 1, 2024). This test is used to diagnose blood
diseases such as sickle cell anemia. Id.
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In the handwritten motion, RP1I wrote, "I understand; I have to submit my
Negligence Claini[ ] of Kamario Smith[s] Death. I understand that I need
to pursue thern in state court." At or near this time, RPII retained counsel
to assist her, and on April 20, the federal court granted her motion to
substitute in as a party.
In May 2020, the probate court in the Eighth Judicial District
appointed RPII as special administrator of Kamario's estate. RPII listed
the assets of the estate as consisting solely of two lawsuits: the above-
mentioned civil rights lawsuit in federal court and a prospective wrongful
death claim to be purportedly brought against NDOC either in the ongoing
federal action or in state court.
Around September 2021, in relation to the federal lawsuit, RPII
retained Lary Simms, D.O., a pathologist, to review Kamario's medical
records.4 In February 2022, Dr. Simms opined that Kamario's death was
caused by exposure to the intravenous contrast Dr. Igtiben had ordered for
the CT scan, which caused kidney failure due to Karnario's sickle cell
anemia.5 Approximately eight nionths later, on November 22, 2022, RPII
filed a complaint in the Eighth Judicial District on behalf of Kamario's
estate against petitioners Dignity Heath, d/b/a San Martin; Dignity Health
Medical Group Nevada, LLC; Dignity Health Holding Corporation; and Dr.
Igtiben, alleging professional negligence of a health care provider and

The federal suit remained active until it apparently settled in or
4
about February 2022.
5An intravenous contrast is an iodine-based medium injected into an
individual's body to increase the density of blood, which allows for blood
vessels to be viewed during a CT exam. David C. Rodgers & Prassana Tadi,
Intravenous Contrast, Nat'l Library of Med., https://www.ncbi.nlm.nih.gov/
books/NBK557794/ (last updated Mar. 13, 2023).
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wrongful death. The complaint, which was supported by a declaration of
merit by Dr. Simms, alleged that Dr. Igtiben's actions, as well as those of

other petitioners, fell below the standard of care in failing to recognize that
Kamario suffered from sickle cell anemia before ordering a CT with
contrast, which ultimately caused Kainario's kidneys to fail, resulting in his

death.
Dr. Igtiben moved to dismiss RPII's complaint, arguing in part
that, pursuant to NRS 41A.097(2), the statute of limitations on RPII's
claims had expired. The other petitioners joined in the motion to dismiss.
The district court denied the motion, stating in part that a finder of fact
could determine that the one-year statute of limitations under NRS
41A.097(2) did not begin to run until February 2022 when Dr. Simms
formed his opinions. Subsequently, Dr. Igtiben filed the instant writ
petition challenging the district court's order denying dismissal of the
complaint against him. Dignity Health, d/b/a San Martin; Dignity Health
Medical Group Nevada, LLC; and Dignity Health Holding Corporation
joined as petitioners.
ANALYSIS
A writ of mandamus is available to compel the performance of
an act that the law requires or to control an arbitrary or capricious exercise
of discretion. Int'l Game Tech., Inc. v. Second Jud. Dist. Ct., 124 Nev. 193,
197, 179, P.3d 556, 558 (2008). This extraordinary relief may be available
if the petitioner does not have a plain, speedy, and adequate remedy in the
ordinary course of law. NRS 34.170; see also Srnith v. Eighth Jud. Dist. Ct.,
107 Nev. 674, 677, 818 P.2d 849, 851 (1991) (recognizing that whether a
writ of mandamus will be considered is within the appellate court's sole
discretion).

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Generally, this court will not consider a writ petition
challenging an order denying a motion to dismiss because an appeal from a
final judgment is an adequate and speedy legal remedy. Int'l Game Tech.,
124 Nev. at 197, 179 P.3d at 558. However, we will consider petitions that
challenge orders denying motions to dismiss if"either (1) no factual dispute
exists and the district court is obligated to dismiss an action pursuant to
clear authority under a statute or rule, or (2) an important issue of law
needs clarification and considerations of sound judicial economy and
administration rnilitate in favor of granting the petition." Id. at 197-98, 179
P.3d at 559. Because the facts relevant to the statute of limitations are not
in dispute, and because the district court was obligated to dismiss the action
pursuant to NRS 41A.097(2), we elect to exercise our discretion and
entertain this writ petition.
NRS 41A.097(2) governs the limitations periods for professional
negligence claims, stating in relevant part that "an action for injury or death
against a provider of health care may not be commenced more than 3 years
after the date of the injury or 1 year after the plaintiff discovers or through
use of reasonable diligence should have discovered the injury, whichever
occurs first."6 (Emphasis added.) We recognize that, here, RPII's complaint
was filed prior to the expiration of the three-year statutory period, but
petitioners argue that the complaint was nonetheless barred by the earlier
expiration of the one-year inquiry-notice limitations period.

°Recent amendments to NRS 41A.097 extend the statute of
limitations for "injury to or wrongful death of a person" claims to two years
after the plaintiff discovers or should have discovered the injury, but only
for those claims arising on or after October 1, 2023. See NRS 41A.097(2)-
(3) (2023). As the claims here arose before October 1, 2023, these
arnendments do not affect our analysis.
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The accrual date for NRS 41A.097(2)'s one-year limitations
period is generally a question of fact that must be decided by a jury:
however, courts may determine the date as a matter of law when the

evidence irrefutably shows the plaintiff was placed on inquiry notice of a
potential claim. Winn v. Sunrise Hosp. & Med. Ctr., 128 Nev. 246, 251-52,
277 P.3d 458, 462 (2012). "A plaintiff discovers [their] injury when [they]
know[] or, through the use of reasonable diligence, should have known of
facts that would put a reasonable person on inquiry notice of [their] cause
of action." Id. at 252, 277 P.3d at 462 (quoting Massey v. Litton, 99 Nev.
723, 728, 669 P.2d 248, 252 (1983)) (internal citation omitted). The Nevada
Supreme Court has held that a plaintiff is placed on inquiry notice of
potential claims for medical malpractice when they receive all relevant
medical records because the plaintiff then has "access to facts that would
have led an ordinarily prudent person to investigate further into whether
[the patient's] injury may have been caused by someone's negligence." Id.
at 253-54, 277 P.3d at 463; see also Kushnir v. Eighth Jud. Dist. Ct., 137
Nev. 409, 410, 495 P.3d 137, 139 (Ct. App. 2021) ("Because the plaintiffs
had all necessary medical records and were therefore on inquiry notice of
the claim more than a year before filing the complaint, . . . we conclude that
the one-year statute of limitations expired and extraordinary writ relief is
appropriate.").
In this case, the district court erred in denying Dr. Igtiben's
motion to dismiss, as it is undisputed that RPII received the relevant
medical records in January 2020—placing her on inquiry notice of potential

professional negligence and wrongful death claims against Dr. Igtiben at

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that tirne.7 See Kushnir. 137 Nev. at 412-13, 495 P.3d at 141. Therefore, as
of January 6, 2020, RPII had access to facts that would have led an
ordinarily prudent person to investigate whether Dr. Igtiben's treatment

and care led to Kamario's death. Indeed, RPII appears to have
acknowledged that such claims may have existed as early as 2020 in the

federal and probate actions. As a result, pursuant to NRS 41A.097(2), RPII
was required to file any professional negligence or wrongful death action

within one year from the date she received the medical records. RPII did
not file the present action until November 22, 2022, or approximately two
years and ten months later, well outside of the one-year statute of
limitations based on inquiry notice.8 Therefore, the applicable statute of

limitations had long since expired when RPII filed her complaint for

7 Because we conclude that the medical records provided RPII the
information necessary to place her on inquiry notice regarding alleged
deficiencies in Dr. Igtiben's treatment and trigger NRS 41A.097(2)'s
limitations period, the fact that she may have received Kamario's death
certificate and the autopsy report after receiving the medical records does
not change our decision. We note that the record before us is not clear about
when RPII received the January 8 death certificate, although it was
attached to the probate filings in May 2020, or the autopsy report, which is
not contained in the record.

8We note RPII conceded at oral argument that no impediment
prevented Dr. Simms from reviewing the case earlier than September 2021.
By way of example, RPII neither raised, nor do we consider, whether the
statute of limitations was tolled due to concealment. See NRS 41A.097(3)
(discussing tolling due to concealment); Senjab v. Alhulaibi, 137 Nev. 632,
633-34, 497 P.3d 618, 619 (2021) (stating that appellate courts will not
supply an argument on a party's behalf).
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professional negligence in state court on November 22, 2022, and the
district court should have dismissed the complaint as untimely.°
CONCLUSION
After receiving medical records sufficient to place RPII on
inquiry notice of potential professional negligence claims, she failed to file
the complaint within the statute of limitations. As there was no
impediment to RPII filing suit before the statute of limitations expired, the
district court was required to dismiss her complaint as untimely. Because
the district court failed to dismiss the complaint, we grant the petition and
direct the clerk of this court to issue a writ of mandamus instructing the

°As we conclude that we must grant writ relief and direct the district
court to dismiss the complaint because the relevant statute of limitations
has expired, we need not consider Dr. Igtiben's alternative basis for
dismissal, wherein he asserts that the affidavit of merit attached to the
complaint failed to satisfy NRS 41A.071. See Wheble v. Eighth Jud. Dist.
Ct., 128 Nev. 119, 1223 n.2, 272 P.3d 134, 1337 n.2 (2012) (declining to
consider the petitioner's alternative bases for writ relief because the court
granted writ relief and directed the district court to dismiss a complaint due
to the statute of limitations having expired).

Nevertheless, we encourage the Legislature to consider clarifying the
ambiguity in NRS 41A.071(2) as to when a physician must have practiced
in the same or substantially similar area of practice in relation to the
alleged professional negligence at issue in order to provide an affidavit or
declaration of merit setting forth opinions regarding that negligence.
Currently, no specific time frame is set forth in the statute. In this case, we
note that Dr. Simms had not practiced as a hospitalist, Dr. Igtiben's practice
area, for over 30 years when he submitted his affidavit of merit opining as
to the appropriate standard of care governing Dr. Igtiben's treatment.
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district court to vacate its order denying petitioners' motion to dismiss and
to dismiss the underlying complaint as untimely under NRS 41A.097(2).

ift,"•°""*•••■ft.... J.
Bulla

We concur:

C.J.
/ "--1
Gibbons

Westbrook

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