Boman v. Elkanich

140 Nev., Advance Opinion 31
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

KEITH BOMAN, No. 86005-COA
Appellant,
vs.
MICHAEL ELKANICH, M.D., AN
'NLED
INDIVIDUAL; AND BONE & JOINT APR 2 5 2024
SPECIALISTS,
Respondents.

Appeal from a district court order granting a motion to dismiss
in a professional negligence action. Eighth Judicial District Court, Clark
County; Veronica Barisich, Judge.
Reversed and remanded.

Hymanson & Hymanson and Ariana Caruso, Henry J. Hymanson, and
Philip M. Hymanson, Las Vegas,
for Appellant.

McBride Hall and Heather S. Hall and Robert C. McBride, Las Vegas,
for Respondents.

BEFORE THE COURT OF APPEALS, GIBBONS. C.J., and BULLA and
WESTBROOK, JJ.

OPINION

By the Court, BULLA, J.:
In this opinion, we address whether irrefutable evidence existed
to support the district court's determination of the accrual date in a
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professional negligence action, thereby warranting dismissal of the case
pursuant to the applicable one-year statute of limitation.' Because we
conclude that factual disputes remain regarding the relevant accrual date,
the district court erred in dismissing the complaint as untimely as a matter
of law under NRCP 12(b)(5). In reaching our decision, we apply the
reasoning of Massey v. Litton, 99 Nev. 723, 728, 669 P.2d 248, 252 (1983), a
summary judgment case, in the context of a motion to dismiss, to conclude
that a patient is "fully entitled to rely on the physician's professional skill
and judgment" while under the physician's care, which, in this case,
precluded the district court frorn finding—as a matter of law—that
irrefutable evidence existed to support its determined accrual date.
Therefore, we reverse the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
In 2019, appellant Keith Boman, a board-certified cardiologist,
experienced pain radiating from his spine. Boman initially saw Gary
Flangas, M.D., who referred him to a pain management specialist for
epidural injections. When his condition did not improve with the injections,
Boman presented to respondents, Dr. Elkanich with Bone & Joint
Specialists, in September 2020. Following a review of Boman's x-rays and
MRI scans, Dr. Elkanich diagnosed Boman with severe lumbar spinal

'We note that recent amendments to NRS 41A.097 extend the statute
of limitations for professional negligence claims to two years after the
plaintiff discovers or should have discovered the injury, but only for claims
arising on or after October 1, 2023. See Secretary of State, Statewide Ballot
Question No. 3, § 8 (Nev., effective Nov. 23, 2004); NRS 41A.097(2)-(3); 2023
Nev. Stat., ch. 493, § 3. at 3023-24. As the claims in this case arose before
October 1, 2023, these amendments do not affect this court's analysis.
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stenosis.2 Dr. Elkanich provided Boman with two treatment options:
continue with epidural injections or undergo a laminectomy surgery from
L2-S1.3 Boman opted for surgery.
Approximately one month later, on October 19, 2020, Dr.
Elkanich performed the larninectomy at MountainView Hospital. When
Boman awoke from surgery, he had no feeling or movement in his left leg.
Dr. Elkanich then informed Boman that his spinal cord dura was
apparently "nicked," and then repaired, during surgery.4 Dr. Elkanich also
told Boman that the issues he was experiencing with "his left leg can occur
and should improve over time."
After 24 hours of bed rest, Boman felt severe lower back pain at
the site of his incision and had not regained feeling or movement in his left
leg, except for slight movement in his toes. After three days, Boman was
transferred to the rehabilitation facility at MountainView Hospital where
he continued experiencing pain. At Boman's request, Dr. Elkanich ordered
an MRI on October 24, which showed a "6 [by] 5.1-centimeter-deep

2"Spinal stenosis is the narrowing of one or more spaces within [the]
spinal canal. [The] spinal canal is the tunnel that runs through each of the
vertebrae in [the] spine." Spinal Stenosis: What It Is, Causes, Syrnptorns &
Treatrnent, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/
17499-spinal-stenosis (last reviewed by a Cleveland Clinic medical
professional on June 30, 2023).

3According to Boman's complaint, "[a] laminectomy is a procedure
where all or part of the vertebral bone (lamina) is removed to help ease
pressure on the spinal cord and offer relief from pain and neurological
conditions."

4According to Boman's complaint, "[t]he spinal cord dura is a thick
membrane of dense irregular connective tissue that surrounds the brain
and spinal cord and protects the central nervous system."
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hematorna that was crowding the nerve roots" around his lumbar and sacral
region, called the cauda equina. Two days later, Dr. Elkanich performed
surgery to remove the hematoma at MountainView Hospital. Following
surgery, Boman's lower back pain lessened, but the feeling in his left leg did
not return.
Boman returned to the rehabilitation facility, where he stayed
for approximately two weeks. When he was discharged on November 13,
Boman "was still experiencing significant leg weakness, numbness, and
paralysis of his left foot." Thereafter, Boman began physical therapy three
times a week for five months. He also continued to be treated by Dr.
Elkanich. According to Bornan, at his appointment on January 5, 2021, "Dr.
Elkanich downplayed the continued post-surgery complications . . . Boman
was experiencing by telling [him] that 'it's only been three months since
surgery with your symptoms." On April 23, Dr. Elkanich referred Boman
to Dr. Flangas for a second opinion. At his June 1, 2021, referral
appointment, Dr. Flangas purportedly told Boman, for the first time, that
his "symptoms were consistent with cauda equina syndrome with
exacerbation from the post-operative hematorna."5 Boman claims it was at
this appointment that he was placed on inquiry notice as to Dr. Elkanich's
potential professional negligence.
Within one year after his appointment with Dr. Flangas, on
June 1, 2022, Boman filed a complaint against Dr. Elkanich and

5Cauda equina syndrome is the compression of the cauda equina
nerve roots. Cauda Equina Syndrome: Symptoms, Treatment & Causes,
Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/22132-
cauda-equina-syndrome (last reviewed by a Cleveland Clinic medical
professional on Nov. 22, 2021). "Compressed cauda equina nerves can cause
pain, weakness, incontinence and other symptoms." Id.
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Bone & Joint Specialists, alleging six claims for relief, including
professional negligence; negligent hiring, training, supervision, and/or
credentialling/privileging; and corporate negligence/vicarious liability.6 Dr.
Elkanich and Bone & Joint Specialists moved to dismiss the complaint,
arguing that Boman's complaint was untimely because he filed it after the
one-year statute of limitations under NRS 41A.097 (2004) had expired.7 In
support of their position, respondents assert that the statute of limitations
accrued no later than the date Boman was discharged from the hospital in
2020 because, at that time, Boman was placed on inquiry notice of his
potential claims against Dr. Elkanich, as he had learned of the nicked dura
and hematoma and experienced neurological symptoms.
Following a hearing, the district court found that Boman was
on inquiry notice of his legal injury on October 19, 2020, when Dr. Elkanich

stated that he nicked the dura, or on October 24, 2020, at the latest, when
Boman underwent an MRI at his request that showed the presence of a
hematoma requiring surgery. Therefore, the district court determined that
Boman filed his June 1, 2022, complaint well beyond the applicable one-
year statute of limitations from the date of accrual in October 2020 and
accordingly dismissed it.8 Boman timely appealed.

6 Boman also sued MountainView Hospital, Sunrise Health System,
and HCA Healthcare, Inc. But those parties and the claims against them
were dismissed below and are not before this court on appeal.

7 The initial motion to dismiss we are considering on appeal was filed
by MountainView Hospital, Sunrise Health System, and HCA Healthcare,
Inc., and later joined by Dr. Elkanich and Bone & Joint Specialists.

8The district court denied a different motion to dismiss filed by
respondents, but that issue is not before us in this appeal.
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ANALYSIS
On appeal, Boman argues that the district court erred in its

interpretation of the terms "injury" and "discovers" set forth in NRS
41A.097. Bornan contends that if the court had properly interpreted
"injury" to mean a legal injury and interpreted "discovers" to mean having
inquiry notice of a negligence cause of action, then the court could not have

determined that Boman had discovered his legal injury on October 24, 2020,
at the latest. Boman specifically argues that he was not placed on inquiry
notice of his potential professional negligence claims against respondents
until June 1, 2021, when he presented to Dr. Flangas for a second opinion.

Therefore, Boman claims that he timely filed his complaint within one year
after the accrual date.
In turn, respondents argue that the district court properly
found that Boman was first placed on inquiry notice of a professional
negligence claim against Dr. Elkanich in October 2020 when he became
aware of his surgical injuries and experienced symptoms, rather than at his
June 1, 2021, visit with Dr. Flangas. Therefore, respondents argue that,
because Boman was on inquiry notice as of October 2020, the district court
correctly dismissed his complaint because the one-year statute of
limitations had expired when Boman filed his complaint on June 1, 2022.
"A district court's order granting a motion to dismiss under
NRCP 12(b)(5) is reviewed de novo." Nelson u. Burr, 138 Nev., Adv. Op. 85,
521 P.3d 1207, 1210 (2022). A "complaint should be dismissed only if it
appears beyond a doubt that [the plaintiff] could prove no set of facts, which,
if true, would entitle [the plaintiff] to relief." Buzz Stew, LLC u. City of
North Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008). This rigorous
standard requires this court to recognize all factual allegations in the
plaintiffs complaint as true and draw all inferences in favor of the moving
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party. Id. at 227-28, 181 P.3d at 672; see also Nelson, 138 Nev., Adv. Op.
85, 521 P.3d at 1210. "[A] court can dismiss a complaint under NRCP
12(b)(5) 'if the action is barred by the statute of limitations." Engelson v.
Dignity Health, 1.39 Nev., Adv. Op. 58, 542 P.3d 430, 436 (Ct. App. 2023)
(quoting Bemis v. Est. of Bemis, 114 Nev. 1021, 1024, 967 P.2d 437, 439
(1998)).
NRS 41A.097(2) provides that "an action for injury . . . against
a provider of health care may not be commenced more than 3 years after
the date of injury or 1 year after the plaintiff discovers or through the use
of reasonable diligence should have discovered the injury, whichever occurs
first." "Thnjury' as used in NRS 41A.097[ ] means legal injury." Massey, 99
Nev. at 726, 669 P.2d at 251. A legal injury includes "both the 'physical
damage' and the `[professional] negligence causing the damage." Engelson,
139 Nev., Adv. Op. 58, 542 P.3d at 437 (alteration in original). "[A] plaintiff
discovers his injury when he knows or, through the use of reasonable
diligence, should have known of facts that would put a reasonable person
on inquiry notice of his cause of action." Winn v. Sunrise Hosp. & Med. Ctr.,
128 Nev. 246, 252, 277 P.3d 458, 462 (2012) (internal quotation marks
omitted). "[A] person is put on 'inquiry notice' when he or she should have
known of facts that 'would lead an ordinarily prudent person to investigate
the matter further." Id. (quoting Inquiry Notice, Black's Law Dictionary
(9th ed. 2009)). "[T]hese facts need not pertain to precise legal theories the
plaintiff may ultimately pursue, but merely to the plaintiff's general belief
that someone's negligence may have caused his or her injury." Id. at 252-
53, 277 P.3d at 462. "The discovery may be either actual or presumptive,
but must be of both the fact of damage suffered and the realization that the
cause was the health care provider's negligence." Massey, 99 Nev. at 727,

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669 P.2d at 251. The accrual date is generally a question of fact to be
decided by the jury; however, the district court rnay determine the accrual
date as a matter of law when the evidence is irrefutable. Winn, 128 Nev. at
251, 277 P.3d at 462.
In Massey, following hip replacement surgery, the plaintiff
experienced a loss of sensation in her left leg and foot. 99 Nev. at 724, 669
P.2d at 249. The plaintiffs treating physician "told [her] that it was not
unusual or permanent and that physical therapy would result in an
improvement." Id. The plaintiff continued under the treating physician's
care for many months, and during this time, the physician maintained that
the condition would improve. Id. However, six months after the surgery,
the physician changed course "when he expressed his inability to explain
[plaintiffs] condition." Id.
The plaintiff subsequently sued the physician, who moved to
dismiss her complaint on the ground that it was untimely, asserting that
the statute of limitations started running on the date that the plaintiff
discovered her symptoms. Id. at 725, 669 P.2d at 250. The Nevada Supreme
Court disagreed, noting that the patient-plaintiff "commended herself to
[the physician's] care and continuing treatment" and that a "patient is fully
entitled to rely upon the physician's professional skill and judgment while
under his care, and has little choice but to do so." Id. at 728, 669 P.3d at
252 (quoting Sanchez v. S. Hoover Hosp., 553 P.2d 1129, 1135 (Cal. 1976)).
The supreme court stated that "during the continuance of this professional
relationship, which is fiduciary in nature, the degree of diligence required
of a patient in ferreting out and learning of the negligent causes of his
condition is diminished." Id. (quoting Sanchez, 553 P.2d at 1135). Thus,
the supreme court held that "it [was] not clear" when the plaintiff was, or

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should have been, aware of her cause of action during the time she remained
under the physician's care. Id. On that basis, and upon treating the order
granting the motion to dismiss as one for summary judgment because the
district court considered matters outside the pleadings, the supreme court
concluded that summary judgment was inappropriate. Id. at 742 n.1, 728.
669 P.2d at 249 n.1, 252.
Ma.ssey was resolved on a summary judgment basis, and
therefore the district court considered evidence regarding whether the
plaintiff had discovered his legal injury more than two years (the statute of
limitations at the time) before filing the complaint. Id. at 728, 669 P.2d at
252; Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031 (2005)
(setting forth the summary judgment standard and providing that a court
is to consider "the pleadings, depositions, answers to interrogatories,
admissions, and affidavits, if any, that are properly before the court" when
ruling on a summary judgment motion); Cuzze v. Univ. & Cmty. Coll. Sys.
of Nev., 123 Nev. 598, 602-03, 172 P.3d 131, 134 (2007) (providing that,
when the party that bears the burden of persuasion at trial is the
nonmoving party in a request for summary judgment, they "must transcend
the pleadings and, by affidavit or other admissible evidence, introduce
specific facts that show a genuine issue of material fact" to avoid summary
judgment). Although the summary judgment standard does not apply here,
as this case was resolved on a motion to dismiss, and the district court did
not consider evidence in making its decision, Massey is still instructive. Its
legal holdings concerning a patient's ability to rely on a treating physician's
advice during the time of treatment and the diminished diligence required
of a patient to discover their legal injury during this time apply equally

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when considering whether to grant a dismissal or summary judgment. See
Massey, 99 Nev. at 728, 669 P.2d at 252.
Here, in considering whether the district court erred in
granting a dismissal, we take Boman's allegations as true and draw every
inference in Boman's favor. See Buzz Stew, 124 Nev. at 227-28, 181 P.3d at
672. Applying the rules promulgated in Massey, we conclude that the
district court erred in finding that, as a matter of law, Boman was on
inquiry notice of his legal injury by October 24, 2020, at the latest. Although
Dr. Elkanich informed Boman that the dura was nicked during surgery and
repaired, and surgically addressed the hematoma, Dr. Elkanich also
advised Boman that the issues he experienced in his leg could occur
following surgery and should improve over time. Additionally, three
months after the surgery, Dr. Elkanich purportedly downplayed Boman's
neurological complications involving his left leg, again suggesting that he
would improve. Because Boman was under Dr. Elkanich's continued care,
he was fully entitled to rely upon Dr. Elkanich's skill and judgment, and the

degree of diligence required of him to learn of any alleged negligence was
diminished.9 See Massey, 99 Nev. at 728, 669 P.2d at 252; see also Engelson,
139 Nev., Adv. Op. 58, 542 P.3d at 439 (determining there was not
irrefutable evidence that the plaintiff had inquiry notice because the record

9Respondents further argue that this court should consider Boman's
experience as a cardiologist as irrefutable evidence that he knew or should
have known about his injury as of October 24, 2020, at the latest. However,
respondents cite no authority to support their position that, because Boman
is a doctor, as a patient he was not entitled to rely on the information Dr.
Elkanich provided him regarding his treatment and diagnosis. See
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 an argument
that is not cogently argued or lacks the support of relevant authority).
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did not state that the patient or plaintiff "were actually informed by the
hospital staff that her condition had in fact worsened and, more specifically,
was the result of professional negligence").
Therefore, at this stage of the proceedings, irrefutable evidence
does not exist to support that Boman was on inquiry notice of his legal
injury either on October 19, 2020, when he learned about the nicked dura
and his leg paralysis, or on October 24, 2020, when he learned about the
hematoma because of his ongoing physician-patient relationship with Dr.
Elkanich. See Winn, 128 Nev. at 251, 277• P.3d at 462. Taking the
allegations in the complaint as true and all inferences in Boman's favor, as
we must, Boman was unaware of the possibility of his continuing health
issues being related to Dr. Elkanich's alleged negligence until he sought a
second opinion from Dr. Flangas on June 1, 2021, at which time he learned
of his diagnosis of cauda equina syndrome and the effect the post-operative
hematoma had on his outcome. Thus, at this stage of the proceedings, there
is no irrefutable evidence that the statute of limitations had expired when
Boman filed his complaint, and factual disputes remain regarding the
accrual date of the statute of limitations on Boman's claims.
CONCLUSION
Taking all factual inferences in favor of Boman in considering
whether dismissal of his complaint was appropriate under NRCP 12(b)(5)
and applying the reasoning set forth in Massey, we conclude that irrefutable
evidence does not support, that as of October 24, 2020, at tbe latest, Boman
was placed on inquiry notice of his claims against Dr. Elkanich. Indeed,
Boman's degree of diligence was diminished while he remained under Dr.
Elkanich's care during this period, particularly when Boman alleges that
Dr. Elkanich continually reassured him that his post-operative condition
would improve. Because factual disputes remain regarding the relevant
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accrual date, the district court erred in dismissing Boman's complaint as
being untimely as a matter of law under NRCP 12(b)(5). And we note that
if genuine disputes regarding inquiry notice remain following discovery,
then the determination of the accrual date is a question of fact for the jury
or trier of fact to resolve. Winn, 128 Nev. at 251, 277 P.3d at 462.10
Accordingly, we reverse and remand this matter to the district court for
further proceedings consistent with this opinion.

Bulla

We concur:

Gibbons r/

J.

1"Insofar as the parties have raised arguments that are not
specifically addressed in this opinion, we have considered the same and
conclude that they either do not present a basis for further relief or need not
be reached given the disposition of this appeal.
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