406 F. App'x 124
9th Cir.2010Background
- Swails sues the United States under the FTCA for medical treatment of a finger infection at a federally funded health center.
- The treating clinician was a physician assistant (Somers) employed by the North Las Vegas Family Health Center, an FTCA facility.
- Nevada law requires an affidavit of merit from a medical expert for medical malpractice claims filed in district court.
- The district court dismissed Swails’s FTCA suit for failure to submit an affidavit of merit, without prejudice to amend.
- Nevada defines medical malpractice to include acts by physicians and hospital employees; physician assistants fall within the definition of physician for these purposes.
- The Nevada Supreme Court has held that a complaint filed without the supporting affidavit is void ab initio and cannot be amended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the affidavit of merit requirement apply to Swails’s FTCA medical malpractice claim? | Swails contends the requirement does not apply since suit is against the U.S., not a private physician or hospital. | The claim is a medical malpractice claim under Nevada law; affidavit is required. | Yes; affidavit required because Swails alleged medical malpractice. |
| Are physician assistants considered physicians for purposes of the medical malpractice affidavit requirement? | Swails argues Somers, a PA, is not a ‘physician’ under Nevada law for malpractice purposes. | Nevada defines physician to include physician assistants licensed under the relevant statutes; they are within the malpractice definition. | Yes; PAs are physicians for malpractice purposes under Nevada law. |
| If the affidavit is missing, may the district court grant leave to amend or dismiss without prejudice? | Swails argues dismissal without prejudice should allow amendment. | Nevada law treats a complaint filed without an affidavit as void ab initio and cannot be amended. | Dismissal without prejudice was proper. |
Key Cases Cited
- Washoe Med. Ctr. v. Second Judicial Dist. Court, 148 P.3d 790 (Nev. 2006) (void ab initio for lack of affidavit; cannot be amended)
- McKay v. Bd. of Supervisors, 730 P.2d 438 (Nev. 1986) (plain-language statute governs interpretive intent)
- Oki Semiconductor Co. v. Wells Fargo Bank, 298 F.3d 768 (9th Cir. 2002) (de novo review of district court dismissal)