131 Nev., Advance Opinion 100 IN THE SUPREME COURT OF THE STATE OF NEVADA

ALT PIROOZI, M.D., AND MARTIN No. 64946 BLAHNIK, M.D., Petitioners, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF DEC 31 CLARK; AND THE HONORABLE JAMES M. BIXLER, DISTRICT JUDGE, Respondents, and TIFFANI D. HURST; AND BRIAN ABBINGTON, JOINTLY AND ON BEHALF OF THEIR MINOR CHILD, MAYROSE LILI-ABBINGTON HURST, Real Parties in Interest.

Original petition for a writ of mandamus in a medical malpractice action. Petition granted. Cotton, Driggs, Walch, Holley, Woloson & Thompson and John H. Cotton and Christopher G. Rigler, Las Vegas, for Petitioner Ali Piroozi, M.D. Carroll, Kelly, Trotter, Franzen, McKenna & Peabody and Robert C. McBride and Heather S. Hall, Henderson, for Petitioner Martin Blahnik, M.D. Eglet Prince and Dennis M. Prince, Las Vegas; Eisenberg Gilchrist & Cutt and Jacquelynn D. Carmichael, Robert G. Gilchrist, and Jeff M. Sbaih, Salt Lake City, Utah, for Real Parties in Interest. evrra4.6,1 Tel- tater it-62.ers . CT BEFORE THE COURT EN BANC. OPINION By the Court, HARDESTY, C.J.: On November 2, 2004, Nevada voters approved the Keep Our Doctors in Nevada (KODIN) ballot initiative. KODIN included the adoption of NRS 41A.045, which makes health-care provider defendants severally liable in professional negligence actions for economic and noneconomic damages. In this opinion, we address whether, in a health- care provider professional negligence action, NRS 41A.045 allows a defendant to argue the percentage of fault of settled defendants and to include those settled defendants' names on applicable jury verdict forms. Based on the plain language of the statute, we hold that the provision of several liability found in NRS 41A.045 entitles a defendant in a qualifying action to argue the percentage of fault of settled defendants and to include the settled defendants' names on the jury verdict form where the jury could conclude that the settled defendants' negligence caused some or all of the plaintiffs injury. BACKGROUND This petition arises out of a professional negligence action. Real parties in interest, Tiffani Hurst and Brian Abbington, 'jointly and on behalf of their infant daughter MayRose, filed a complaint against several health-care providers, alleging that the providers' professional negligence caused MayRose to suffer permanent brain damage. All defendants settled with Hurst and Abbington, except for petitioners Dr. Ali Piroozi and Dr. Martin Blahnik. During pretrial proceedings below, Hurst and Abbington filed a motion in limine to bar petitioners from arguing the comparative fault of SUPREME COURT OF NEVADA (0) 1947A

the settled defendants at trial and including those defendants' names on jury verdict forms. Relying on NRS 41.141 1 and Banks ex rel. Banks v. Sunrise Hospital, 120 Nev. 822, 102 P.3d 52 (2004), which interprets NRS 41.141, the district court granted the motion. Petitioners now ask this court to issue a writ of mandamus ordering the district court to allow petitioners to argue the comparative fault of the settled defendants and to place those defendants' names on the jury verdict forms.

DISCUSSION

Consideration of the writ petition 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. NRS 34.160; Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008). This court exercises its discretion to consider a petition for a writ of mandamus only "when there is no plain, speedy and adequate remedy in the ordinary course of law or there are either urgent circumstances or important legal issues that need clarification in order to promote judicial economy and administration." Cheung v. Eighth Judicial Dist. Court, 121 Nev. 867, 869, 124 P.3d 550, 552 (2005) (internal quotation marks omitted). Generally, an appeal from a final judgment or order is an adequate remedy precluding such writ relief. Int'l Game Tech., 124 Nev. at 197, 179 P.3d at 558.

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We exercise our discretion to consider this writ petition in light of the important legal issues raised concerning whether NRS 41.141 or NRS 41A.045 applies and the corresponding effect on trials involving professional negligence by a health-care provider. We believe that consideration of this petition will promote judicial economy and administration in this case and other health-care provider professional negligence cases pending before the Nevada district courts because the resolution of the issues presented will promote settlements and reduce the time and expense of professional negligence trials involving comparative defense or other settling defendants. Accordingly, we conclude that this writ petition warrants our consideration. Merits of the writ petition Issues of statutory interpretation, even when raised in a writ petition, are reviewed de novo. Int? Game Tech., 124 Nev. at 198, 179 P.3d at 559. Petitioners contend that the district court abused its discretion by relying on NRS 41.141(3), which prohibits a jury from considering the comparative negligence of settled defendants and the settlement amounts, when a remaining defendant asserts a comparative negligence defense. Petitioners argue that NRS 41.141 does not apply in professional negligence actions because it invalidates NRS 41A.045's abrogation of joint and several liability by preventing petitioners from arguing the liability of settled defendants. We must resolve the conflict created when these separate statutes are read together. The district court began its analysis with NRS 41.141. Notwithstanding its other limitations, NRS 41.141 applies only to actions where a defendant asserts comparative negligence as a defense. NRS 41.141(1), see Caf4 Moda, LLC v. Palma, 128 Nev. 78, 80-81, 272 P.3d 137,

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139 (2012). When NRS 41.141 does apply, a settling defendant's comparative negligence cannot be admitted into evidence or considered by the jury. NRS 41.141(3). Here, although a comparative negligence defense asserted against minor plaintiff MayRose would not be a bona fide issue, see Buck by Buck v. Greyhound Lines, Inc., 105 Nev. 756, 764, 783 P.2d 437, 442 (1989), petitioners' comparative negligence assertions against plaintiffs Hurst and Abbington are bona fide issues triggering the application of NRS 41.141. See NRS 41.141(1). Thus, initially, NRS 41.141(3) appears to apply to Hurst and Abbington's claims. We now turn to the application of NRS 41A.045. NRS 41A.045 states: 1. In an action for injury or death against a provider of health care based upon professional negligence, each defendant is liable to the plaintiff for economic damages and noneconomic damages severally only, and not jointly, for that portion of the judgment which represents the percentage of negligence attributable to the defendant. ^[2]. This section is intended to abrogate joint and several liability of a provider of health care in an action for injury or death against the provider of health care based upon professional negligence. We have repeatedly stated that if the plain language of a statute is clear on its face, we will not look beyond that language when construing the provision, "unless it is clear that this meaning was not intended." See Szydel v. Markman, 121 Nev. 453, 456-57, 117 P.3d 200, 202 (2005) (internal quotation omitted). NRS 41A.045(1) unequivocally provides that defendants in professional negligence actions are severally liable for economic and noneconomic damages. This means that an "injured person may recover only the severally liable person's comparative-responsibility share of the injured person's damages," SUPREME COURT OF NEVADA

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Restatement (Third) of Torts: Apportionment of Liab. § 11 (2000), which is "the portion of the judgment which represents the percentage of negligence attributable to the defendant." NRS 41A.045(1). Therefore, pursuant to NRS 41A.045, we hold that an injured plaintiff in a health- care provider professional negligence action can recover only the defendant's share of the injured plaintiffs damages. Although the aforementioned approach places the risk of an insolvent or immune defendant on the plaintiff, several liability schemes are designed to protect individual defendants from liability exceeding the defendant's fault. See Sowinski v. Walker, 198 P.3d 1134, 1151 (Alaska 2008). That the voters of Nevada intended this meaning is evident not only by the plain language of NRS 41A.045, but also by the ballot initiative's explanation section, stating that the provision "imposes the risk of nonpayment to the injured party if a defendant is not able to pay his percentage of damages." Statewide Ballot Questions 2004, Question No. 3, Explanation. Based on these conclusions, if defendants can be held responsible only for their share of an injured plaintiffs damages, it follows that defendants must be allowed to argue the comparative fault of the settled defendants and the jury verdict forms must account for the settled defendants' percentage of fault. See Le'Gall v. Lewis Cnty., 923 P.2d 427, 430 (Idaho 1996) (explaining that "[i]f the jury could conclude, based on the evidence, that an actor negligently contributed to the plaintiffs injury,

then the actor must be included on the special verdict form"); Restatement (Third) of Torts: Apportionment of Liab. § B19 (2000). 2 Consequently, NRS 41.141 and NRS 41A.045, when applied in cases where the comparative negligence defense is raised, conflict. NRS 41.141 precludes admitting a settling defendant's comparative negligence into evidence, whereas NRS 41A.045 presumes admission of evidence allocating damages based on proportionate liability. "Where a general and a special statute, each relating to the same subject, are in conflict and they (0) 1947A

cannot be read together, the special statute controls." Laird v. State Pub. Emps. Ret. Bd., 98 Nev. 42, 45, 639 P.2d 1171, 1173 (1982); see also State, Dep't of Taxation v. Masco Builder Cabinet Grp., 129 Nev., Adv. Op. 83, 312 P.3d 475, 478 (2013) ("A specific statute controls over a general statute." (internal quotation omitted)). Because NRS 41A.045 is a special statute focusing specifically on professional negligence of a provider of health care, it governs here. ^[3] Thus, when applicable, NRS 41A.045 displaces NRS 41.141. Based on the foregoing analysis, the district court was required to permit petitioners the opportunity to argue the comparative fault of the settled defendants and include those defendants' names and an assignment of their percentage of fault on the jury verdict forms. Thus, we grant the petition and order the clerk of this court to issue a writ of mandamus directing the district court to vacate the portion of its pretrial order that conflicts with this decision and to enter a new order holding that petitioners may argue to the jury that a portion of Hurst and Abbington's damages was caused by the settled defendants and include those defendants' names on the jury verdict form for the purpose of allocating liability among all defendants . 4 (0) 1947A

DOUGLAS, J., with whom CHERRY and GIBBONS, JJ., agree, dissenting: I respectfully disagree with the majority's analysis as to the application of NRS 41A.045. NRS 41A.045 is ambiguous and does not abrogate NRS 17.245's offset provision, making it improper to introduce any evidence of settlement into the proceedings. Ambiguity "A statute is ambiguous when it is capable of being understood in two or more senses by reasonably informed persons or it does not otherwise speak to the issue before the court." Chanos v. Nev. Tax Comm'n, 124 Nev. 232, 240, 181 P.3d 675, 680-81 (2008) (internal quotation marks omitted). NRS 41A.045 states: 1. In an action for injury or death against a provider of health care based upon professional negligence, each defendant is liable to the plaintiff for economic damages and noneconomic damages severally only, and not jointly, for that portion of the judgment which represents the percentage of negligence attributable to the defendant. ^[2]. This section is intended to abrogate joint and several liability of a provider of health care in an action for injury or death against the provider of health care based upon professional negligence. NRS 41A.045 contains at least two meaningful points of ambiguity. First, the use of "each defendant" could be read to either limit several liability to actions with multiple defendants or permit several liability, even when there is only one defendant. Second, when NRS 41A.045 applies, "each defendant is liable. . severally only. . . for that portion of the judgment which represents the percentage of negligence attributable to the defendant." It is unclear whether the percentage of SUPREME COURT OF NEVADA

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negligence attributable to the defendant for which she is liable is based only in relation to other defendants in the action, if there are any, or in relation to all persons at fault, including settled defendants. Based on these two points of ambiguity, it is necessary to consider legislative history, public policy, and reason in construing NRS 41A.045. Single or multiple defendants To determine the voter intent of a law that was enacted by a ballot initiative, this court has considered that ballot's explanation and argument sections.' See Sustainable Growth Initiative Comm. v. Jumpers, LLC, 122 Nev. 53, 63, 65-66, 128 P.3d 452, 460-61 (2006); see also Guinn v. Legislature of State of Nev., 119 Nev. 460, 467, 76 P.3d 22, 26 (2003). The explanation section of the ballot questionnaire relevant to NRS 41A.045 states that Iclurrent law provides that each one of multiple defendants in medical malpractice actions is severally, but not jointly liable for noneconomic damages," and that the proposed law would extend several liability to economic damages. Statewide Ballot Questions 2004, Question No. 3, Explanation. Thus, voters understood that the then current law, NRS 41A.041,2 applied only to actions with multiple defendants, and that NRS 41A.045 did not propose to change this aspect of the law. Accordingly, this court can reasonably conclude that Nevada voters

'Examining the ballot materials to determine voter intent is appropriate because "[t]hose materials are the only information to which all voters unquestionably had equal access." Patrick C. McDonnell, Nevada's Medical Malpractice Damages Cap: One for All Heirs or One for Each, 13 Nev. L.J. 983, 1009 (2013).

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Given NRS 41A.045's narrow purpose of extending existing law 5 to include several liability for economic damages, any legislative intent behind NRS 41A.041 unrelated to that purpose arguably transfers into the new statute. 6 Based on the foregoing, it should be construed that NRS 41A.045 prohibits a defendant from arguing the comparative negligence of settled defendants. That interpretationtwould not preclude a defendant from arguing that a settled defendant was 100 percent at fault. 7 Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822, 844-45, 102 P.3d 52, 67 (2004).

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With this in mind, I submit that the district court did not abuse its discretion in its order granting the Hursts' motion in limine. NRS 17.245 As to NRS 17.245 (effects of release or covenant not to sue), it states: 1. When a release or a covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury or the same wrongful death: (a) It does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide, but it reduces the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and (b) It discharges the tortfeasor to whom it is given from all liability for contribution and for equitable indemnity to any other tortfeasor. ^[2]. As used in this section, "equitable indemnity" means a right of indemnity that is created by the court rather than expressly provided for in a written agreement. In association with NRS 17.245(1)(a), this court has stated that "to prevent improper speculation by the jury, the parties may not inform the jury as to either the existence of a settlement or the sum paid." Banks ex rel. Banks v. Sunrise Hosp., 120 Nevi . at 843-44, 102 P.3d at 67 (citing Moore v. Bannen, 106 Nev. 679, 680-81, 799 P.2d 564, 565 (1990)). 8 NRS

8Note that while this rule was mentioned in the context of NRS 41.141, the court expressly stated that this rule was not based on that statute. Moore, 106 Nev. at 681 n.2, 799 P.2d at 566 n.2.

41A.045 does not allow for comparative fault theories as to settled defendants and has no effect on NR,S 17.245, thus, the district court properly applied the law and did not abuse its discretion by forbidding any discussion as to a settlement occurring and the settlement amount. 9 Defendants' names on jury verdict forms Lastly, "[Oils court reviews a district court's decision to give a jury instruction for abuse of discretion." See FGA, Inc. v. Giglio, 128 Nev., Adv. Op. 26, 278 P.3d 490, 496 (2012). 10 Here, the district court did not abuse its discretion by refusing to place settled defendants' names on the jury verdict forms because that decision is consistent with the law that the jury may not be informed of settlement or the sum paid. Moore, 106 Nev. at 681-82, 799 P.2d. at 566.