555 P.3d 1192
Nev.2024Background
- Hal de Becker contracted COVID-19 in 2021 and was treated with ivermectin by his personal physician, with alleged initial improvement.
- Hal was admitted to Desert Springs Hospital, where attending physicians discontinued ivermectin without consulting Hal, his family, or his physician, and instead administered remdesivir without consent.
- The estate and family (de Beckers) sued two physicians and the hospital for negligence, professional negligence, wrongful death, and punitive damages, alleging refusal to administer ivermectin and failure to obtain informed consent for remdesivir.
- The complaint was supported by an expert declaration broadly alleging deviation from standard of care by the doctors and hospital.
- The lower court dismissed all claims: against doctors, citing insufficient expert affidavit and PREP Act immunity; against the hospital, citing both PREP Act immunity and insufficient affidavit.
- On appeal, the Supreme Court reviewed the sufficiency of the expert affidavit under NRS 41A.071 and whether the PREP Act barred the claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the claims sounded in ordinary negligence or required an expert affidavit for professional negligence under NRS 41A.071 | Claims were ordinary negligence or lack-of-consent battery, so no expert affidavit required. | Claims were professional negligence and required affidavit; lack-of-consent still sounds in professional negligence if treatment generally consented to. | Claims were professional negligence and required expert affidavit. |
| Whether the expert declaration met NRS 41A.071 requirements as to each defendant | Expert affidavit was sufficient as to all defendants. | Affidavit was too general and did not specify acts for each doctor. | Declaration insufficient for doctors (too general), sufficient for hospital. |
| Whether leave to amend should be allowed if an affidavit is deficient | Plaintiffs should have been allowed to amend affidavit to clarify or add specifics. | Amendment should not be permitted; dismissal required by statute. | Amendment is not permitted; dismissal required if affidavit is insufficient. |
| Whether the PREP Act bars claims for failure to obtain informed consent before administering remdesivir | The claim arose from lack of consent, not administration, thus PREP Act doesn't bar. | Any claim related to administration of remdesivir is barred by the PREP Act. | PREP Act bars claims relating to administration, including failure to obtain consent. |
Key Cases Cited
- Zohar v. Zbiegien, 130 Nev. 733 (Nev. 2014) (standard for reviewing order on motion to dismiss)
- Washoe Med. Ctr. v. Second Jud. Dist. Ct., 122 Nev. 1298 (Nev. 2006) (amendment is not permitted if affidavit under NRS 41A.071 is insufficient)
- Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 132 Nev. 544 (Nev. 2016) (lack of any consent may state a battery claim, but scope-of-consent claims require an expert affidavit)
- Baxter v. Dignity Health, 131 Nev. 759 (Nev. 2015) (affidavit can be a sworn declaration and may be incorporated by reference in the complaint)
- Monk v. Ching, 139 Nev. Adv. Op. 18 (Nev. 2023) (complaint and affidavit must specify acts of negligence for each defendant)