No. 65403 

FILED 

JAN 2 2 2016 

TRACIE K. UNDEMAN 

CLERK OF SUPREME COURT 

bY 

DEPUTY CLERK 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

SUNIMERLIN HOSPITAL MEDICAL 

CENTER, LLC D/B/A SUMMERLIN 

HOSPITAL MEDICAL CENTER, A 

FOREIGN LIMITED LIABILITY 

COMPANY; (MW NEVADA IMAGING 

COMPANY, LLC D/B/A NEVADA 

IMAGING CENTERS, A DOMESTIC 

LIMITED LIABILITY COMPANY; 

THOMAS ROSS TETZLAFF, M.D., 

INDIVIDUALLY; BRIAN THONG 

VOVAN, M.D., INDIVIDUALLY; BARRY 

STEPHEN FRANK, M.D., 

INDIVIDUALLY; GIOIA & 

ASSOCIATES, LTD. D/B/A 

CHILDREN'S ACUTE CARE A/K/A 

CHILDREN'S ACUTE CARE, INC.; 'YU 

TIAN, M.D., P.C., A DOMESTIC 

PROFESSIONAL CORPORATION; AND 

YU TIAN, M.D., INDIVIDUALLY, 

Petitioners, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

CLARK; AND JERRY A. WIESE, II, 

Respondents, 

and 

NYIESHA COSTA, INDIVIDUALLY 

AND AS NATURAL MOTHER OF 

NIKHELAIS COSTA, A MINOR CHILD, 

DECEASED; AND THE ESTATE OF 

NIKHELAIS COSTA, DECEASED, 

Real Parties in Interest. 

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS 

SUPREME COURT 

OF 

NEVADA 

(0) I 947A 

1G - 02.2$9 
This is an original petition for writ of mandamus or 

prohibition challenging a district court order ruling a statute 

unconstitutional in a medical malpractice and professional negligence 

action. 

Petitioners petition this court for a writ of mandamus, or 

alternatively, a writ of prohibition, 1directing the district court to vacate a 

portion of its order finding that the $350,000 cap on noneconomic damages 

in NRS 41A.035 is unconstitutional. Petitioners argue that NRS 41A.035 

does not violate a plaintiffs right of trial by jury, that NRS 41A.035 

applies on a per-incident basis, and that medical malpractice actions 

against hospitals are "professional negligence" actions subject to NRS 

41A.035. 

Consistent with our recent holding in Tarn v. Eighth Judicial 

Dist. Court, 131 Nev., Adv. Op. 80, 358 P.3d 234 (2015), we grant the 

petition and instruct the clerk of this court to issue a writ of mandamus 

P`A writ of mandamus is available to compel the performance of an 

act that the law requires as a duty resulting from an office, trust, or 

station or to control an arbitrary or capricious exercise of discretion." 

Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d 

484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist. 

Court, 124 Nev. 193, 197, 179 P.3d 556,558 (2008)); NRS 34.160. A writ of 

prohibition is applicable when a district court acts "without or in excess of 

[its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs., LLC v. 

Eighth Judicial Din. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249 

(2012). Because the district court had jurisdiction to hear and decide the 

issue at hand, we treat this petition as one of mandamus. See Goicoechea 

v. Fourth Judicial Dist. Court, 96 Nev. 287, 289, 607 P.2d 1140, 1141 

(1980) (explaining that we will not issue a writ of prohibition "if the court 

sought to be restrained had jurisdiction to hear and determine the matter 

under consideration"). 

SUPREME COURT 

OF 

NEVADA 2 

(Di 1947A aggf497, 
Douglas 

\ 

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Cher 

Salt 

instructing the district court to vacate its order and to conduct further 

proceedings consistent with this court's holding in Tam. 2 

It is so ORDERED. 

Parraguirre 

, 

Hardesty 

Gibbons 

2We note that Summerlin qualifies as a hospital under the definition 

of "medical malpractice" before it was repealed, the definition of 

‘`professional negligence," and the definition of a "provider of health care." 

See NRS 41A.009 (1989); NRS 41A.015; NRS 41A.017. 

SUPREME COURT 

OF 

NEVADA 3 

J. 

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cc: Hon. Jerry A. Wiese, District Judge 

Law Office of Arthur W. Tuverson 

John H. Cotton & Associates, Ltd. 

Hall Prangle & Schoonveld, LLC/Las Vegas 

Mandelbaum, Ellerton & Associates 

Carroll, Kelly, Trotter, Franzen, & McKenna & Peabody 

Eglet Prince 

Robert S. Peck 

Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas 

Eighth District Court Clerk 

SUPREME COURT 

OF 

NEVADA 4 

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