Rejman v. Shang et al

Filing 49

ORDER DENYING defendant's Motion for Summary Judgment (ECF No. 30 ). Signed by Judge James C. Mahan on 8/8/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KAMILA REJMAN,

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Plaintiff(s),

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Case No. 2:15-CV-367 JCM (GWF)
ORDER

v.
THOMAS SHANG, M.D., et al.,

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Defendant(s).

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Presently before the court is defendant Thomas Shang, M.D.’s (“defendant”) motion for

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summary judgment as to plaintiff Kamila Rejman’s (“plaintiff”) first and third causes of action.

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(ECF No. 30). Plaintiff filed a response (ECF No. 40), to which defendant replied (ECF No. 46).

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I.

Background

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This is a medical malpractice case arising from medical care and treatment administered

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during plaintiff’s January 5, 2014, visit at Urgent Care Extra. Upon examination of plaintiff,

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defendant diagnosed her with acute sinusitis and bronchitis, prescribed medications, and

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recommended a Kenalog injection, which a nurse administered. (ECF No. 1). The parties dispute

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whether defendant obtained plaintiff’s informed consent for the Kenalog injection. (ECF Nos. 1,

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30).

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In February 2014, plaintiff noticed skin depression, bruising, and discoloration at the

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injection site. (ECF No. 1). On or around March 8, 2014, a dermatologist examined plaintiff and

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opined that the skin damage was due to lipodystrophy, which is a main side effect of an improperly

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administered Kenalog injection. (ECF. No. 1). In September 2014, plaintiff was diagnosed with

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linear scleroderma and subsequently underwent several medical procedures to treat the condition.

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(ECF No. 1).

James C. Mahan
U.S. District Judge

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On March 2, 2015, plaintiff filed the underlying complaint, asserting four claims for relief,

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the first and third of which are against the present defendant: (1) medical negligence/malpractice;

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and (3) battery. (ECF No. 1). In the instant motion, defendant moves for summary judgment on

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both claims, arguing that the malpractice claim is time barred and that the battery claim is

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improperly pleaded. (ECF No. 30).

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II.

Legal Standard

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The Federal Rules of Civil Procedure allow summary judgment when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine dispute as to any material fact and the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is

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“to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317,

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323–24 (1986).

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For purposes of summary judgment, disputed factual issues should be construed in favor

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of the non-moving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to be

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entitled to a denial of summary judgment, the non-moving party must “set forth specific facts

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showing that there is a genuine issue for trial.” Id.

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In determining summary judgment, a court applies a burden-shifting analysis. “When the

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party moving for summary judgment would bear the burden of proof at trial, it must come forward

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with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at

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trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine

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issue of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests.,

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Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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By contrast, when the non-moving party bears the burden of proving the claim or defense,

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the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the non-moving party’s case; or (2) by demonstrating that the non-moving party failed

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to make a showing sufficient to establish an element essential to that party’s case on which that

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party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving

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party fails to meet its initial burden, summary judgment must be denied and the court need not

James C. Mahan
U.S. District Judge

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consider the non-moving party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–

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60 (1970).

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the

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opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient

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that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing

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versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626,

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631 (9th Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040,

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1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex, 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable

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inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is

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merely colorable or is not significantly probative, summary judgment may be granted. See id. at

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249–50.

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III.

Discussion

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a. Medical negligence/malpractice

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Defendant argues that summary judgment is proper because plaintiff’s medical malpractice

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claim is time barred under NRS 41A.097(2), which sets forth a one-year statute of limitations

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period under the “discovery rule.” (ECM No. 30). In response, plaintiff contends that defendant

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failed to meet his burden of showing that the statute of limitations bars the claim. (ECF No. 40).

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NRS 41A.097(2) provides that “an action for injury or death against a provider of health

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care may not be commenced more than 3 years after the date of injury or 1 year after the plaintiff

James C. Mahan
U.S. District Judge

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discovers or through the use of reasonable diligence should have discovered the injury, whichever

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occurs first.” “[T]he accrual date for [NRS 41A.097(2)’s] one-year discovery period ordinarily

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presents a question of fact to be decided by the jury.” Winn v. Sunrise Hosp. & Med. Ctr., 277

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P.3d 458, 462 (Nev. 2012). Here, the parties agree that plaintiff’s date of injury was January 5,

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2014; however, the parties dispute the accrual date.

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Defendant contends that the medical malpractice claim began to accrue no later than on

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January 26, 2014, three weeks after the date of injection when plaintiff first noticed a “black point

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around the place of injection.” (ECM No. 30). By contrast, plaintiff argues that she discovered

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her injury, at the earliest, on March 8, 2014, when plaintiff’s dermatologist attributed the skin

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damage to a negligently administered injection. (ECF No. 40).

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“NRS 41A.097(2)’s discovery date may be determined as a matter of law only when the

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evidence irrefutably demonstrates that a plaintiff has been put on inquiry notice.” Winn, 277 P.3d

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at 462. “[A] person is put on ‘inquiry notice’ when he or she should have known of facts that

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‘would lead an ordinarily prudent person to investigate the matter further.’” Id. (citing Black’s

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Law Dictionary 1165 (9th ed. 2009)).

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The evidence does not irrefutably demonstrate that plaintiff was put on inquiry notice on

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January 26, 2014, when plaintiff initially noticed a “black point” near the injection site. “Injury”

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encompasses both discovery of damage as well as negligent cause. Massey v. Litton, 669 P.2d

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248, 252 (Nev. 1983). Noticing irritation around the injection site, alone, does not irrefutably

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demonstrate that plaintiff discovered or should have discovered that the injury may have been

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caused by someone’s negligence. Thus, a matter of law determination that the accrual date is

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January 26, 2014, would be improper.

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The evidence, however, does irrefutably demonstrate that plaintiff was put on inquiry

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notice as of March 8, 2014, when her dermatologist connected the skin damage to a negligent

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injection. At this point, plaintiff had access to facts that would have lead an ordinary prudent

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person to investigate further into whether defendant’s negligence may have caused her injury.

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Thus, as a matter of law, plaintiff was put on inquiry notice of her potential cause of action no later

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James C. Mahan
U.S. District Judge

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than March 8, 2014. As plaintiff filed her complaint on March 2, 2015, the medical malpractice

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claim is not time barred.

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b. Battery

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Citing to the criminal definition of a battery, defendant argues that summary judgment on

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the battery claim is appropriate because plaintiff “lacks any basis in law or fact to support her

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battery cause of action.” (ECM No. 30). The court disagrees because the present case involves

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civil battery, not criminal battery.

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“A battery is an intentional and offensive touching of a person who has not consented to

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the touching.” Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court of Nev., No. 65562, 2016 Nev.

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LEXIS 646, at *10 (July 28, 2016) (citation omitted). Moreover, “it is well settled that a physician

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who performs a medical procedure without the patient’s consent commits a battery irrespective of

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the skill or care used.” Id.

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As defendant has not shown a lack of a genuine dispute of material fact, summary judgment

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is no appropriate. Accordingly, defendant’s motion for summary judgment on the battery claim

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will be denied.

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I.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant’s motion for

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Conclusion

summary judgment, (ECF No. 30), be, and the same hereby is, DENIED.
DATED August 8, 2016.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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