IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`THOMAS A. GOLDENBERG, M.D.,
`Appellant,
`vs.
`GEORGIA WOODARD, INDIVIDUALLY
`AND AS THE SURVIVING SPOUSE
`AND SUCCESSOR OF HERSCHEL
`WOODARD,
`Respondent.
`GEORGIA WOODARD,
`INDIVIDUALLY, AND GEORGIA
`WOODARD AS THE SURVIVING
`SPOUSE, SUCCESSOR AND
`REPRESENTATIVE OF HERSCHEL
`WOODARD, DECEASED,
`Appellant,
`vs.
`THOMAS A. GOLDENBERG, M.D.,
`Respondent.
`
`No. 57232
`
`No. 58151
`
`FILED
`
`JUN 2 0 2014
`
`TRACIE K. LINDEMAN
`CLERK OF SUPREME COURT
`BY Syjr.
`DEPUTY CLERK
`
`ORDER AFFIRMING IN PART,
`REVERSING IN PART AND REMANDING
`
`These are consolidated appeals from a judgment following a
`
`jury verdict in a professional negligence action. Ninth Judicial District
`
`Court, Douglas County; David R Gamble, Judge.
`
`BACKGROUND
`
`Thomas Goldenberg, M.D. is an obstetrician and gynecologist.
`
`In early 2004, Dr. Goldenberg decided to expand his practice by offering
`
`colonoscopies. Dr. Goldenberg attended a weekend continuing medical
`
`education course in October 2004 and observed a colonoscopy
`
`demonstration on a mannequin. Included in the materials provided to
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`Goldenberg at this course were the guidelines published by the American
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`Society of Gastrointestinal Endoscopists, including their requirement that
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`100 colonoscopies be performed under the supervision of an instructor
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`before a physician can be evaluated for competence in the procedure. This
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`course was Dr. Goldenberg's only formal training in the colonoscopy
`
`procedure.
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`Although he requested privileges to perform colonoscopies at
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`two different hospitals, both hospitals denied his request due to his lack of
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`demonstrated qualifications to perform the procedure. Dr. Goldenberg
`
`eventually obtained a provisional privilege to perform colonoscopies from
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`Lake Tahoe Surgery Center (LTSC) on the condition that he perform the
`
`procedures under the supervision of a physician experienced in performing
`
`colonoscopies. LTSC later admitted that this decision was a violation of
`
`its bylaws, as Dr. Goldenberg's experience did not meet LTSC's
`
`credentialing criteria, which require that a physician must have privileges
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`to perform a procedure at a local hospital in order to obtain privileges to
`
`perform that procedure at LTSC.
`
`In December 2004, Dr. Goldenberg conducted his annual
`
`examination of then 68-year-old Georgia Woodard, and as part of the exam
`
`recommended that she undergo a colonoscopy to screen for cancer. Dr.
`
`Goldenberg told Ms. Woodard that he could perform her colonoscopy at
`
`LTSC. Ms. Woodard testified that Dr. Goldenberg did not disclose to her
`
`that he had never performed a colonoscopy on a patient or that he had
`
`only conditional privileges to perform the procedure at LTSC with
`
`supervision.
`
`Ms. Woodard underwent her colonoscopy at LTSC in March
`
`2005. Although Dr. Goldenberg had previously arranged for a supervising
`
`physician to oversee the procedure, the supervising physician was not
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`present at the start of Ms. Woodard's colonoscopy. Dr. Goldenberg
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`initiated the procedure regardless. When Dr. Goldenberg experienced
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`difficulty advancing the scope through the colon, the supervising physician
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`was summoned and took over the procedure.
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`Ms. Woodard awoke from the procedure in pain and continued
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`to experience pain over the next week. Despite Dr. Goldenberg's
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`assurances that her condition was improving, Ms. Woodard went to the
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`emergency room in extreme pain and was admitted to the hospital.
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`Subsequent exploratory surgery revealed an instrument-induced half-
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`dollar-size hole in her colon. Ms. Woodard remained in a coma in the
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`intensive care unit for three weeks with a ventilator and feeding tube.
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`The repair of her colon required multiple follow-up surgeries and left Ms.
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`Woodard with a colostomy bag and difficulty walking for many months.
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`After her discharge from the hospital, Ms. Woodard spent two additional
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`weeks in a rehabilitation facility.
`
`Thereafter, Ms. Woodard filed a complaint against Dr.
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`Goldenberg and LTSC, alleging various tort claims. 1 Following an eight-
`
`day trial, the jury found against Dr. Goldenberg and LTSC on claims of
`
`professional negligence and fraud, awarding Mi. Woodard $610,000 in
`
`economic damages and $1 million in noneconomic damages. The jury
`
`apportioned 80 percent of Ms. Woodard's total damages to negligence and
`
`20 percent to fraud. From this, the jury apportioned 40 percent of the
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`negligence liability to Dr. Goldenberg.
`
`Dr. Goldenberg filed several post-trial motions, including a
`
`motion to reduce the noneconomic professional negligence damages to an
`
`aggregate cap of $350,000 before apportioning liability between Dr.
`
`'Ms. Woodard's husband Herschel also filed a loss of consortium
`claim. Hershel died in 2010, and Ms. Woodard has been substituted in his
`place for these consolidated appeals.
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`Goldenberg and LTSC pursuant to NRS 41A.035. The district court
`
`denied this motion, concluding that although NRS 41A.035 limits
`
`noneconomic damages per action to $350,000, the limit applied separately
`
`against each defendant.
`
`DISCUSSION
`
`Dr. Goldenberg argues on appeal that the district court erred
`
`by (1) upholding the jury's finding of fraud against him, (2) ruling that
`
`NRS 41A.035's $350,000 damages cap applies separately to each
`
`defendant, and (3) refusing to reduce or offset the damages awarded
`
`against him. 2
`
`Dr. Goldenberg's appeal
`Dr. Goldenberg argues on appeal that the district court erred
`
`by finding that Ms. Woodard's fraud claim does not fall within NRS
`
`Chapter 41A's definition of professional negligence. He further argues
`
`2Ms. Woodard also filed a cross-appeal in which she raised various
`constitutional challenges to NRS 41A.035's noneconomic damages cap.
`Because NRS 41A.035 was not triggered under the district court's
`apportionment of her noneconomic damages and because Ms. Woodard
`does not point to any arguments made to the district court or any district
`court ruling on the constitutionality of NRS 41A.035, Ms. Woodard is not
`aggrieved by the district court's judgment. We therefore lack jurisdiction
`over this portion of Ms. Woodard's cross-appeal. NRAP 3A(a); Ford v.
`Showboat Operating Co., 110 Nev. 752, 756, 877 P.2d 546, 549 (1994) ("A
`party who prevails in the district court and who does not wish to alter any
`rights of the parties arising from the judgment is not aggrieved."). Both
`parties also raised numerous arguments in their appeals that they failed
`to properly preserve or develop for appellate review, and we decline to
`address those arguments on appeal. Old Aztec Mine, Inc. v. Brown, 97
`Nev. 49, 52, 623 P.2d 981, 983 (1981) (providing that this court need not
`address issues raised for the first time on appeal); Edwards v. Emperor's
`Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
`(explaining that this court need not consider claims that are not cogently
`argued or supported by relevant authority).
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`that there is no evidence in the record that he made any representations
`
`regarding his ability to perform Ms. Woodard's colonoscopy and that his
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`representation that he could perform the procedure was not fraudulent
`
`because he intended to have a supervising physician assist him at the time
`
`he made the representation.
`
`Fraud as a separate claim from professional negligence
`In resolving this issue, this court must first address whether
`
`the district court properly found that Ms. Woodard's fraud claim fell
`
`outside of NRS Chapter 41A's definition of professional negligence.
`
`Although this court has not previously addressed the issue, California
`
`courts have concluded that intentional tort claims do not fall within that
`
`state's Medical Injury Compensatory Reform Act (MICRA) when the
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`allegations of an intentional tort claim are "qualitatively different than
`
`professional negligence." Unruh-Haxton v. Regents of Univ. of Cal., 76
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`Cal. Rptr. 3d 146, 155 (Ct. App. 2008) (citing Perry v. Shaw, 106 Cal. Rptr.
`
`2d 70 (Ct. App. 2001)). NRS Chapter 41A is closely aligned with MICRA,
`
`which defines professional negligence in nearly identical language as NRS
`
`41A.015, which defines professional negligence as "a negligent act or
`
`omission to act by a provider of health care in the rendering of professional
`
`services, which act or omission is the proximate cause of a personal injury
`
`or wrongful death." See Cal. Civ. Proc. Code § 3640)(2) (West 2009)
`
`(defining professional negligence as a "negligent act or omission to act by a
`
`health care provider in the rendering of professional services, which act or
`
`omission is the proximate cause of a personal injury or wrongful death");
`
`State ex rel. Harvey v. Second Judicial Dist. Court, 117 Nev. 754, 763, 32
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`P.3d 1263, 1269 (2001) (holding that a statute derived from a sister state
`
`is presumably adopted with the construction given it by the sister state's
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`courts).
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`When the circumstances giving rise to the allegations of fraud
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`relate to "wrongful intentional conduct, not mere negligence," California
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`courts have held that such claims are not subject to professional
`
`negligence statutes. Unruh-Haxton, 76 Cal. Rptr. 3d at 157; see Covenant
`
`Care, Inc. v. Superior Court, 86 P.3d 290, 295 (Cal. 2004) (noting that
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`"intentional, egregious" conduct cannot be described as "mere 'professional
`
`negligence"). Those courts reason that professional negligence statutes
`
`were not intended to "exempt intentional wrongdoers from liability by
`
`treating such conduct as though it had been nothing more than mere
`
`negligence." Perry v. Shaw, 106 Cal. Rptr. 2d 70, 78 (Ct. App. 2001). And
`
`because legislators have specifically limited the application of certain
`
`statutes to "professional negligence" claims, California courts have
`
`determined that it would be inconsistent with the letter and spirit of those
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`laws to hold that claims for intentional torts "are really just another form
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`of professional negligence." Unruh-Haxton, 76 Cal. Rptr. 3d at 157.
`
`We are persuaded by the reasoning of the California courts.
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`Our statute defines professional negligence as "a negligent act or omission
`
`to act by a provider of health care in the rendering of professional
`
`services." NRS 41A.015. This court reviews questions of law, such as
`
`statutory interpretation, de novo. Estate of Smith v. Mahoney's Silver
`
`Nugget, Inc., 127 Nev. „ 265 P.3d 688, 690 (2011). The medical
`
`malpractice statutory scheme set forth under NRS Chapter 41A limits the
`
`scope of claims to which the professional negligence statutes apply to
`
`claims based on a health care provider's ‘`negligent" acts or omissions.
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`Such statutes are not applicable where the facts giving rise to the
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`intentional tort cause of action concern wrongful intentional conduct, not
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`mere negligence, and are thus qualitatively different from the professional
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`negligence claim. See Unruh-Haxton, 76 Cal. Rptr. 3d at 155; Perry, 106
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`Cal. Rptr. 2d at 77-78; see also Baker v. Sadick, 208 Cal. Rptr. 676, 680-81
`
`(Ct. App. 1984). Willful wrongs, including performing unnecessary or
`
`unconsented-to surgery or procedures and fraudulently inducing a patient
`
`to submit to surgery or procedures, constitute more than mere negligence
`
`and allow for the recovery of additional fraud damages. Baker, 208 Cal.
`
`Rptr. at 680-81.
`
`Whether a cause of action brought against a health care
`
`provider under an intentional tort theory is "qualitatively different" than a
`
`claim for professional negligence subject to NRS Chapter 41A's limitations
`
`should be evaluated on a case-by-case basis. See Smith v. Ben Bennett,
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`Inc., 35 Cal. Rptr. 3d 612, 615 (Ct. App. 2005) (noting that whether
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`professional negligence statutes are applicable to claims grounded on
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`other legal theories must be examined on a case-by-case basis). Here, Ms.
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`Woodard's professional negligence claim was based on allegations that Dr.
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`Goldenberg's performance of her colonoscopy fell below the standard of
`
`care. In contrast, her fraud claim arose from Dr. Goldenberg's
`
`representation that he could perform the procedure, despite his knowledge
`
`that he had never performed a colonoscopy, that two hospitals had denied
`
`him privileges to perform colonoscopies based on his lack of experience,
`
`that he had not met the minimum requirements to be evaluated for
`
`competence in the procedure under the American Society of
`
`Gastrointestinal Endoscopists' guidelines, and that his privileges at LTSC
`
`were conditioned on his supervision during the procedure by a doctor
`
`experienced in performing colonoscopies. See Barmettler v. Reno Air, Inc.,
`
`114 Nev. 441, 447, 956 P.2d 1382, 1386 (1998) (setting forth the elements
`
`for a fraudulent misrepresentation claim). Thus, this court concludes that
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`Dr. Goldenberg's misrepresentation was an "intentional act of egregious
`
`abuse," which exceeds the scope of mere negligence allegations related to
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`his falling below the standard of care. Unruh-Haxton, 76 Cal. Rptr. 3d at
`
`157.
`
`The district court was therefore correct in finding that Ms.
`
`Woodard's fraud claim does not fall within NRS Chapter 41A's definition
`
`of professional negligence, and thus, that her fraud damages are not
`
`subject to either NRS 41A.035's cap or NRS 41A.045's abrogation of joint
`
`and several liability.
`
`Substantial evidence supported the jury's finding of fraud
`
`As to Dr. Goldenberg's argument that insufficient evidence
`
`supported the jury's finding of fraud against him, when the sufficiency of
`
`the evidence in support of a claim is challenged on appeal, this court views
`
`all the evidence with inferences in favor of the prevailing party and
`
`determines whether substantial evidence supports the jury's verdict. J.J.
`
`Indus., LLC v. Bennett, 119 Nev. 269, 273, 71 P.3d 1264, 1267 (2003).
`
`"Substantial evidence is evidence that a reasonable mind might accept as
`
`adequate to support a conclusion." Winchell v. Schiff, 124 Nev. 938, 944,
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`193 P.3d 946, 950 (2008) (internal quotation marks omitted).
`
`In Nevada, an intentional misrepresentation is one "that is
`
`made with either knowledge or belief that it is false or without a sufficient
`
`foundation." Nelson v. Heer, 123 Nev. 217, 225, 163 P.3d 420, 426 (2007);
`
`see also Barmettler, 114 Nev. at 447, 956 P.2d at 1386. When a person
`
`makes a truthful representation, but knows or believes that the
`
`representation is materially misleading because he has failed to provide
`
`additional or qualifying information, the incomplete statement is a
`
`fraudulent misrepresentation. Restatement (Second) of Torts § 529
`
`(1977). "[I]t is . . . fundamental that a person who speaks has a duty to
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`disclose enough to prevent his words from being misleading. A statement
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`disclosing favorable information but omitting all reference to material
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`unfavorable facts breaches that duty." Baskin v. Hawley, 807 F.2d 1120,
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`1132 (2d Cir. 1986).
`
`In this case, the jury heard testimony that at the time when
`
`Dr. Goldenberg represented to Ms. Woodard that he could perform her
`
`colonoscopy, he had never performed a colonoscopy on a live patient, and
`
`he had only attended a weekend course on colonoscopy training. Dr.
`
`Goldenberg had also been denied privileges to perform the procedure by
`
`two hospitals and knew that in order to be evaluated for competence in the
`
`procedure he needed to obtain consent to perform supervised colonoscopies
`
`on a number of patients. Dr. Goldenberg also knew that he could only
`
`perform the procedure under the supervision of another doctor. But Dr.
`
`Goldenberg failed to inform Ms. Woodard of these limitations on his ability
`
`to perform the procedure and of his inexperience, and instead, he acted in
`
`a manner that led Ms. Woodard to believe that he was qualified to perform
`
`the procedure himself. Dr. Goldenberg's patient advisor and surgery
`
`scheduler, who scheduled Ms. Woodard's surgery and answered Ms.
`
`Woodard's questions about the procedure, also testified that she would not
`
`have told Ms. Woodard that Dr. Goldenberg was learning to perform the
`
`colonoscopy procedure because Dr. Goldenberg would have frowned on her
`
`giving Ms. Woodard that information.
`
`When inferences from this testimony are viewed in Ms.
`
`Woodard's favor, substantial evidence supports the jury's finding of fraud.
`
`J.J. _Indus., LLC, 119 Nev. at 273, 71 P.3d at 1267; see Winchell, 124 Nev.
`
`at 944, 193 P.3d at 950. Once Dr. Goldenberg volunteered that he could
`
`perform Ms. Woodard's colonoscopy, he was required to provide her with
`
`all the relevant information to prevent his representation from being
`
`misleading. See Nelson, 123 Nev. at 225, 163 P.3d at 426; Baskin, 807
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`F.2d at 1132. Dr. Goldenberg's failure to provide Ms. Woodard with the
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`additional information regarding the limitations on his privileges to
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`perform her colonoscopy and his inexperience in the procedure was
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`materially misleading and constituted an intentional misrepresentation.
`
`For these reasons, we affirm the jury's finding of fraud against Dr.
`
`Goldenberg and the damages awarded as a result.
`
`NRS 41A.035 provides an aggregate cap on noneconomic damages
`
`Dr. Goldenberg also challenges the district court's application
`
`of NRS 41A.035's noneconomic damages cap separately with respect to the
`
`negligence damages awarded against each defendant, rather than in the
`
`aggregate. Dr. Goldenberg argues that the district court should have
`
`capped the noneconomic negligence damages award at $350,000 before
`
`apportioning 40 percent of the noneconomic negligence damages to him.
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`NRS 41A.035 provides that "[in an action for injury or death
`
`against a provider of health care based upon professional negligence, the
`
`injured plaintiff may recover noneconomic damages, but the amount of
`
`noneconomic damages awarded in such an action must not exceed
`
`$350,000." Dr. Goldenberg maintains that the term "action" refers to Ms.
`
`Woodard's entire professional negligence claim as a whole, rather than to
`
`the individual professional negligence claims against Dr. Goldenberg and
`
`LTSC. Dr. Goldenberg relies on this court's decision in United Ass'n of
`
`Journeymen and Apprentices v. Manson, 105 Nev. 816, 820, 783 P.2d 955,
`
`957 (1989), in which we discussed that the terms "action" and "claim"
`
`carry different meanings, and "[u]nlike a claim, an action includes the
`
`original claim and any crossclaims, counterclaims, and third-party
`
`claims." In contrast, the district court relied on State v. Webster, 88 Nev.
`
`690, 695-96, 504 P.2d 1316, 1320 (1972), which implies that the term
`
`action refers to each separate claim, and thus, applies separately to each
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`defendant.
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`"When the language of a statute is expressly clear and
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`unambiguous, the apparent intent must be given effect, as there is no
`
`room for construction. If, however, a statutory provision is ambiguous,
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`then this court should attempt to follow the Legislature's intent." Metz v.
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`Metz, 120 Nev. 786, 791-92, 101 P.3d 779, 783 (2004). A statute is
`
`ambiguous when it is capable of two or more reasonable interpretations.
`
`Clark Cnty. v. S. Nev. Health Dist., 128 Nev. „ 289 P.3d 212, 215
`
`(2012). Because the district court and Dr. Goldenberg's interpretations of
`
`"action" are both reasonable, NRS 41A.035 is ambiguous, and we look to
`
`the legislative history to aid in our interpretation of the statute. Id.
`
`In determining the meaning of "action" in NRS 41A.035, the
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`2004 amendments to now-repealed NRS 41A.031 are particularly helpful.
`
`Before amendment, NRS 41A.031 limited "the noneconomic damages
`
`awarded to each plaintiff from each defendant," while the current version
`
`of NRS 41A.035 limits "the amount of noneconomic damages awarded in
`
`such an action." (Emphases added.) This alteration strongly indicates
`
`that noneconomic damages should be limited on a per-incident basis. See
`
`McKay v. Bd. of Supervisors, 102 Nev. 644, 650, 730 P.2d 438, 442 (1986)
`
`("It is ordinarily presumed that the legislature, by deleting an express
`
`portion of a law, intended a substantial change in the law.").
`
`This conclusion is further reinforced by the current statute's
`
`legislative history, which shows that the initiative was intended to set
`
`forth an aggregate cap per incident, with no exceptions. Hearing on S.B.
`
`97 Before the Senate Judiciary Comm., 72d Leg. (Nev. March 24, 2003).
`
`The legislative history also draws comparisons with similar California
`
`legislation, describing NRS 41A.035's counterpart as a cap "per incident,
`
`not per claimant, and not per doctor."
`
`Id.; see Cal. Civ. Code § 3333.2
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`(West 2009); Colburn v. U.S., 45 F. Supp. 2d 787, 793 (S.D. Cal. 1998)
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`("Neither the California Supreme Court nor the appellate courts have ever
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`held that a single plaintiff can recover more than the [Medical Injury
`
`Compensation Reform Act] limit for noneconomic damages. To the
`
`contrary, the courts have consistently limited the maximum recovery to
`
`$250,000, regardless of the number of claims alleged.").
`
`Based on the foregoing, we conclude that NRS 41A.035 limits
`
`noneconomic damages to an aggregate of $350,000 per incident, regardless
`of how many plaintiffs, defendants, or claims are involved. Mattson, 105
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`Nev. at 820, 783 P.2d at 957. Thus, the district court should not have
`
`applied NRS 41A.035 on a per-defendant basis, and we reverse in part
`
`that portion of the district court order and remand this matter to the
`
`district court to redetermine damages consistent with this order.
`
`Challenges to the district court's damages rulings
`Dr. Goldenberg also challenges the district court's ruling that
`
`he is not entitled to an offset of damages based on LTSC's settlement with
`
`Ms. Woodard. We disagree. NRS 41A.045 has abrogated joint and several
`
`liability in actions based on professional negligence. Because Dr.
`
`Goldenberg is only severally liable for his portion of the apportioned
`See NRS
`
`negligence damages, he is therefore not entitled to an offset.
`
`17.225(2) ("The right of contribution exists only in• favor of a tortfeasor
`
`who has paid more than his or her equitable share of the common
`
`liability. . ."). Moreover, NRS 17.255 expressly bars an intentional
`tortfeasor's right to contribution. See Evans it. Dean Witter Reynolds, Inc.,
`
`116 Nev. 598, 609-10, 5 P.3d 1043, 1050 (2000) (concluding that
`
`intentional tortfeasors are not entitled to an offset based on settlements by
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`their joint tortfeasors). We therefore affirm that portion of the district
`
`court's judgment. 3
`
`CONCLUSION
`
`Based on the foregoing, we therefore
`
`ORDER the judgment of the district court AFFIRMED IN
`
`PART AND REVERSED IN PART AND REMAND this matter to the
`
`district court for proceedings consistent with this order.
`
`, C.J.
`
`Gibbons
`
`J.
`
`J.
`
`Parraguirre
`
`Cherry
`
`Saitta
`
`cc: Ninth Jildicial District Court Dept. 1
`Paul FAlamilton, Settlement Judge
`Durney & Brennan/Reno
`Molof & Vohl
`Schuering Zimmerman & Doyle LLP
`Andre M. Mura
`Douglas County Clerk
`
`3Dr. Goldenberg also contests the district court's refusal to reduce
`Ms. Woodard's economic damages to the amount actually paid in
`satisfaction of her medical bills Because Dr. Goldenberg did not challenge
`the district court's order regarding the unconstitutionality of portions of
`NRS 42.021, which allows evidence relating to collateral source benefits to
`be introduced in professional negligence cases, we determine that the
`district court properly applied Bass-Davis v. Davis, 122 Nev. 442, 453-54,
`134 P.3d 103, 110-11 (2006), to Ms. Woodard's economic damages and did
`not err in declining to further reduce the economic damages award.
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`cc: (cid:9)
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`Ninth Judicial District Court Dept. 1
`Paul F. Hamilton, Settlement Judge
`Durney & Brennan/Reno
`Molof & Vohl
`Schuering Zimmerman & Doyle LLP
`Andre M. Mura
`Douglas County Clerk
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`OF
`NEVADA (cid:9)
`
`(0) I947A Ati);r4)
`
`14
`
`

`

`HARDESTY, J., with whom Pickering, J., agrees, concurring in part and
`
`dissenting in part:
`
`I fully concur with the majority's disposition in this case, but
`
`dissent because I feel this case should be resolved in a published opinion.
`
`Rule 9(a) of the Internal Operating Procedures (TOP) of this court compels
`
`the disposition by opinion of a case that presents "a novel question of law,
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`an issue of public importance, or sets a new legal precedent."
`
`In these consolidated cases, we resolve not only novel questions of
`
`law but also issues of public importance that set new legal precedent.
`
`I concur:
`
`Pickering
`
`Hardesty
`
`J.
`
`SUPREME COURT
`OF
`NEVADA
`
`(0) 1947A 4164144
`
`