Document Type

Case Summary

Publication Date

1-1-2004

Case Synopsis

This case appeared before the Nevada Supreme Court on a writ of mandamus filed by petitioner Alan M. Borger challenging the district court orders dismissing Petitioner’s medical malpractice action and denying his motion to amend his malpractice complaint. The main issue on appeal was the foreclosure of Petitioner’s medical malpractice claim against Respondent James Lovett, M.D. for failure to file a correct affidavit of merit pursuant to newly enacted NRS 41A.071. Petitioner consulted respondent Dr. Lovett in connection with his recurrent lower digestive tract difficulties. After several consultations with petitioner, Dr. Lovett secured a clinical consultation from and Dipak Desai M.D., a gastroenterologist. Dr. Desai diagnosed that Petitioner suffered from a condition known as Crohn’s disease and agreed with Lovett’s recommendations for surgical intervention. Subsequently, Lovett preformed a colectomy2 and ileostomy3 on Petitioner. The surgery did not correct Petitioner’s condition. Subsequently, Petitioner began treatment with a second gastroenterologist, Marc Kudisch, M.D. Dr. Kudisch ultimately concluded that Dr. Desai misdiagnosed Petitioner’s with Crohn’s disease, and that Dr. Lovett preformed an unnecessary and overly aggressive procedure. Subsequently, Petitioner filed a complaint for medical malpractice with the Nevada Medical-Legal Screening Panel.4 While Petitioner’s case was still pending the law governing medical malpractice was amended in a special session of the Legislature. A portion of the law, codified under NRS 41A.071, requires that medical malpractice complaints filed on or after October 1, 2002 be accompanied by affidavits of merits from medical experts.5 Under NRS 41A.071, the affiant must practice or have practiced in an area that is “substantially similar to the type of practice engaged in at the time of [the defendant’s] alleged malpractice.”6 Any current malpractice plaintiffs with claims pending during the statutory change were given the option of proceeding under the old or new statutory system. Petitioner proceeded under the old statutory system to avoid the new caps on noneconomic damages.

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