132 Nev., Advance Opinion 53 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

HUMBOLDT GENERAL HOSPITAL; 

AND SHARON MCINTYRE, M.D., 

Petitioners, 

vs. 

THE SIXTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

HUMBOLDT; AND THE HONORABLE 

MICHAEL MONTERO, DISTRICT 

JUDGE, 

Respondents, 

and 

KELLI BARRETT, 

Real Party in Interest. 

No. 65562 

FILED 

JUL 28 2016 

T • E K. LINDEMAN 

LE 

BY A 

DE • i fY ERK 

Original petition for a writ of mandamus challenging a district 

court order denying a motion to dismiss. 

Petition granted. 

Pollara Law Group and Dominique A. Pollara, Sacramento, California, 

for Petitioners. 

David Allen & Associates and David Allen, Reno, 

for Real Party in Interest. 

BEFORE THE COURT EN BANC. 

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OPINION 

By the Court: HARDESTY, J.: 

NRS 41A.071 requires that a medical expert affidavit be filed 

with "medical malpractice" claims.' Real party in interest Kelli Barrett 

filed a complaint without an expert affidavit against petitioners Humboldt 

General Hospital and Sharon McIntyre, M.D., that included a battery 

claim based on an alleged lack of informed consent. In this case, we 

determine whether a battery claim against a medical provider based on an 

allegation of lack of informed consent is subject to the NRS 41A.071 

medical expert affidavit requirement. 

We conclude that allegations raising the scope of informed 

consent rather than the absence of consent to a medical procedure, even 

when pleaded as a battery action, constitute medical malpractice claims 

requiring a medical expert affidavit. Accordingly, because Barrett's 

complaint raises the scope of informed consent for the medical procedure, 

but does not allege a complete lack of consent, Humboldt and Dr. 

McIntyre's motion to dismiss Barrett's battery claim should have been 

granted. We thus grant the petition. 

FACTS AND PROCEDURAL HISTORY 

Barrett had an intrauterine device (IUD) surgically implanted 

by Dr. McIntyre at Humboldt General Hospital. Approximately one year 

later, Barrett received a letter from Humboldt stating that the IUD was 

not approved by the Federal Drug Administration (FDA). Her IUD was 

1The Legislature amended NRS 41A.071 during the 2015 legislative 

session. 2015 Nev. Stat., ch. 439, § 6, at 2527. Any discussion in this 

opinion related to this statute refers to the 2002 version of the statute in 

effect at the time real party in interest filed her complaint. 

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not FDA approved because it was shipped from Finland to a Canadian 

pharmacy rather than to a location in the United States. However, the 

implanted IUD was identical to FDA-approved IUDs and was 

manufactured at the same plant in Finland. 

Barrett filed a complaint without a supporting medical expert 

affidavit alleging negligence and battery claims against Dr. McIntyre and 

Humboldt. In her negligence claim, Barrett alleged that Dr. McIntyre and 

Humboldt "had a duty to provide [her] with care, treatment, medications 

and medical devices consistent with state and federal law." And, in her 

battery claim, Barrett alleged that Dr. McIntyre and Humboldt "knew or 

reasonably should have known that. . . Barrett did not consent to the 

implantation in [her] body of said IUD which lacked FDA approval." 

Dr. McIntyre and Humboldt moved to dismiss Barrett's 

complaint based on NRS 41A.071's requirement that an expert affidavit be 

filed with medical malpractice actions. The district court granted the 

motion to dismiss the negligence claim, finding that an expert affidavit 

was required, but denied the motion as to the battery claim, finding that 

"it does not appear beyond a doubt that" Barrett needed to include an 

affidavit with her battery claim. Dr. McIntyre and Humboldt then 

petitioned this court for a writ of mandamus directing the district court to 

dismiss Barrett's battery complaint under NRS 41A.071. 

DISCUSSION 

Whether a claim under the informed consent doctrine must be 

pleaded as a tort action for negligence, rather than as one for battery, is 

an issue of first impression in Nevada. Because Barrett generally 

consented to the procedure performed, and the operative facts implicate 

the scope of informed consent, we conclude that Barrett's battery claim is 

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actually a medical malpractice claim requiring a medical expert affidavit 

under NRS 41A.071. 

Writ of mandamus 

"Normally, this court will not entertain a writ petition 

challenging the denial of a motion to dismiss," Buckwalter v. Eighth 

Judicial Dist. Court, 126 Nev. 200, 201, 234 P.3d 920, 921 (2010), but we 

may do so when "(I) no factual dispute exists and the district court is 

obligated to dismiss an action pursuant to clear authority under a statute 

or rule; or (2) an important issue of law needs clarification and 

considerations of sound judicial economy and administration militate in 

favor of granting the petition," State v. Eighth Judicial Dist. Court, 118 

Nev. 140, 147, 42 P.3d 233, 238 (2002). Furthermore, this court may 

consider writ petitions that present matters of first impression that may 

be dispositive in the particular case. Otak Nev., LLC v. Eighth Judicial 

Dist. Court, 129 Nev., Adv. Op. 86, 312 P.3d 491, 496 (2013). 

Here, there is no factual dispute regarding the absence of an 

expert medical affidavit filed with the complaint. Further, this case 

presents an important issue of law concerning the right to pursue a 

battery claim in a medical malpractice action that implicates the scope of 

informed consent. Because this issue is likely to recur, as evidenced by 

other writ petitions filed with this court seeking similar relief, and may be 

dispositive of the pending case, we exercise our discretion to entertain the 

merits of this writ petition. 

Expert affidavit requirement in medical malpractice claims 

The issues raised in this case present purely legal questions, 

primarily regarding statutory construction, so we conduct a de novo 

review. Zohar v. Zbiegien, 130 Nev., Adv. Op. 74, 334 P.3d 402, 405 

(2014). "If an action for medical malpractice. . . is filed in the district 

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court, the district court shall dismiss the action, without prejudice, if the 

action is filed without an affidavit." NRS 41A.071; 2 see also Washoe Med. 

Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1306, 148 P.3d 790, 795 

(2006) ("We conclude that when a plaintiff has failed to meet NRS 

41A.071's expert affidavit requirement, the complaint is void ab initio and 

must be dismissed, without prejudice, and no amendment to cure an NRS 

41A.071 defect is allowed."). NRS 41A.009 (1985) defines "[m]edical 

malpractice" as "the failure of a physician [or] hospital . . . in rendering 

services, to use the reasonable care, skill or knowledge ordinarily used 

under similar circumstances." 

Initially, we examine whether informed consent issues 

generally constitute medical malpractice, such that NRS 41A.071 requires 

a medical expert affidavit to be filed with a complaint. Next, we consider 

2Many statutes in NRS Chapter 41A were amended during the 2015 

legislative session. See 2015 Nev. Stat., ch. 439, §§ 1-13, at 2526-29. NRS 

41A.071 now states, in pertinent part: "If an action for professional 

negligence is filed in the district court, the district court shall dismiss the 

action, without prejudice, if the action is filed without an affidavit." 

(Emphasis added.) NRS 41A.015 defines "[p]rofessional negligence" as 

"the failure of a provider of health care, in rendering services, to use the 

reasonable care, skill or knowledge ordinarily used under similar 

circumstances by similarly trained and experienced providers of health 

care." The amended language does not apply here because the 

amendments became effective after the district court entered its order in 

this matter, and our reference to the statutes in this section are to those in 

effect at the time of the cause of action. See 2015 Nev. Stat., ch. 439, § 13, 

at 2529. However, we note that the Legislature repealed NRS 41A.009's 

definition of "medical malpractice" and moved much of the operative 

language to the "professional negligence" definition stated above. See NRS 

41A.009 (1985); NES 41A.015 (2015); 2015 Nev. Stat., ch. 439, §§ 6, 12, at 

2527, 2529. 

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whether a battery claim can be maintained when the claim arises out of a 

lack of consent. 

Issues of informed consent typically constitute medical malpractice claims 

NRS Chapter 41A governs medical malpractice actions in 

Nevada. Within that statutory scheme, NRS 41A.110 establishes when 

informed consent is conclusively given by a patient. As applicable here, a 

licensed physician has conclusively obtained a patient's consent for a 

medical procedure if a physician has explained in general terms, without 

specific details, the procedure to be conducted. NRS 41A.110. 

Furthermore, this court has previously recognized that 

informed consent is generally a matter of medical malpractice. In 

Bronneke v. Rutherford, while considering what standard of care governs 

chiropractic informed consent cases, we concluded that "the professional 

standard, requiring expert testimony as to the customary disclosure 

practice, applies to chiropractors." 120 Nev. 230, 238, 89 P.3d 40, 46 

(2004). Under the professional medical standard, "the physician must 

decide whether the information is material and should be disclosed to the 

patient." Id. at 233, 89 P.3d at 43. This standard imparts a duty upon the 

physician to "disclose information that a reasonable practitioner in the 

same field of practice would disclose . . . 1, and] the professional standard 

must be determined by expert testimony regarding the custom and 

practice of the particular field of medical practice." Smith v. Cotter, 107 

Nev. 267, 272, 810 P.2d 1204, 1207 (1991). As a result, we concluded that 

"the failure to obtain a patient's informed consent is a malpractice issue." 

120 Nev. at 238, 89 P.3d at 446. 

Bronneke conforms to the general rule in the United States: "a 

claim under the informed consent doctrine must be pled as a tort action for 

negligence, rather than as one for battery or assault." Mole v. Jutton, 846 

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kryl, 
A.2d 1035, 1042 (Md. 2004); see also Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 

1972) (adopting the majority position that "appears to be towards 

categorizing [the] failure to obtain informed consent as negligence"); Dries 

v. Gregor, 424 N.Y.S.2d 561, 564 (App. Div. 1980) ("We believe that 

medical treatment beyond the scope of a patient's consent should not be 

considered as an intentional tort or species of assault and battery. . . 

Informed consent claims usually require a medical expert affidavit, but 

claims that a treatment or procedure completely lacked patient consent do 

not 

Barrett argues that insertion of the non-FDA approved IUD 

without her consent constitutes a true battery claim that does not require 

an expert medical affidavit. In Bronneke, we suggested that a battery 

claim may not exist when a question of informed consent is presented. 120 

Nev. at 234-35, 89 P.3d at 43 (concluding that because the patient 

impliedly consented to the treatment, allowing "an eleventh-hour 

amendment to the complaint to add a battery claim" would be futile). 

However, we recognize that when consent to a treatment or procedure is 

completely lacking, the justifications supporting a medical expert affidavit 

are diminished. 

3There is a minority position where "[t]he earliest cases treated this 

as a matter of vitiating the consent, so that there was liability for battery." 

Cobbs v. Grant, 502 P.2d 1, 8 (Cal. 1972) (internal quotations omitted). 

However, courts subsequently "began to, . . recognize[ ] that this was 

really a matter of the standard of professional conduct" and that "the 

action. . . is in reality one for negligence in failing to conform to the proper 

standard." Id. (third alteration in original). Some jurisdictions still 

maintain this distinction. See, e.g., Montgomery v. Bazaz-Sehgal, 798 A.2d 

742, 748 (Pa. 2002) ("[T]his Court has made clear on repeated occasions 

over a period of several decades that a claim based upon a lack of informed 

consent involves a battery. ."). 

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"A battery is an intentional and offensive touching of a person 

who has not consented to the touching," and "[i]t is well settled that a 

physician who performs a medical procedure without the patient's consent 

commits a battery irrespective of the skill or care used." Conte v. Girard 

Orthopaedic Surgeons Med. Grp. Inc., 132 Cal. Rptr. 2d 855, 859 (Ct. App. 

2003). Courts typically only allow consent issues to proceed as battery 

claims in "those circumstances when a doctor performs an operation to 

which the patient has not consented. When the patient gives permission to 

perform one type of treatment and the doctor performs another, the 

requisite element of deliberate intentS to deviate from the consent given is 

present." Cobbs, 502 P.2d at 8; see also Rice v. Bra/el, 310 P.3d 16, 19 

(Ariz. Ct. App. 2013) (same); Shuler v. Garrett, 743 F.3d 170, 173 (6th Cir. 

2014) (noting that in Tennessee "the threshold question in an informed 

consent case is whether the patient's lack of information negated her 

consent, the question in a medical battery case is much simpler: Did the 

patient consent at all?"); Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995) 

("[T]he tort of battery is properly limited in the medical/dental setting to 

those circumstances in which a health care provider performs a procedure 

to which the patient has not consented."); Mole v. Jutton, 846 A.2d 1035, 

1042 (Md. 2004) ("[A] claim under the informed consent doctrine must be 

pled as a tort action for negligence, rather than as one for battery or 

assault."). 

The distinction between informed consent and battery claims 

is based on the concept that a doctor may show, in informed consent cases, 

"that the disclosure he omitted to make was not required within his 

medical community. However, expert opinion as to [the] standard [of care] 

is not required in a battery count, in which the patient must merely prove 

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failure to give informed consent and a mere touching absent consent." 

Cobbs, 502 P.2d at 8; see also Bronneke, 120 Nev. at 238, 89 P.3d at 45-46 

(stating that expert opinions are necessary in informed consent and 

medical malpractice cases because juries, "as general laypersons, would 

not know the customary practice in the profession"). Thus, when consent 

is so lacking that a trier of fact may find that "the requisite element of 

deliberate intent [for battery] . . . is present," id., the justification for an 

affidavit is diminished because an expert's opinion setting forth the 

standard of care and a good-faith basis for the action is unnecessary. 

Zohar, 130 Nev., Adv. Op. 74, 334 P.3d at 405 ("NRS 41A.071's affidavit 

requirement was implemented to lower costs, reduce frivolous lawsuits, 

and ensure that medical malpractice actions are filed in good faith based 

upon competent expert medical opinion " (internal quotations omitted)). 

Accordingly, where a plaintiff claims not to have consented at 

all to the treatment or procedure performed by a physician or hospital, we 

conclude that such an allegation constitutes a battery claim and thus does 

not invoke NRS 41A.017A's medical expert affidavit requirement. 

However, consistent with conclusively obtaining a patient's consent under 

NRS 41A.110, where general consent is provided for a particular 

treatment or procedure, and a question arises regarding whether the scope 

of that consent was exceeded, an expert medical affidavit is necessary. See 

Cobbs, 502 P.2d at 8. 

Barrett's complaint 

Barrett's complaint does not allege that the IUD procedure 

completely lacked her consent Instead, she alleges in her battery claim 

that she generally consented to the procedure but not to an IUD that 

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lacked FDA approval. See Brzoska, 668 A.2d at 1366 ("A patient's consent 

is not vitiated, however, when the patient is touched in exactly the way he 

or she consented."). As a result, her battery allegation presents a question 

that requires an expert's opinion regarding the standard of care and the 

scope of consent with respect to the use of an IUD device supplied by the 

same manufacturer but shipped in a way that lacked FDA approval. 

Accordingly, we conclude that Barrett's battery claim is actually a medical 

malpractice claim governed by Chapter 41A. Therefore, the district court 

erred by denying Humboldt's and Dr. McIntyre's motion to dismiss 

Barrett's battery claim because a medical expert affidavit was not filed 

with the claim. See Washoe Med. Ctr., 122 Nev. at 1306, 148 P.3d at 795. 

CONCLUSION 

For the reasons set forth above, we grant Humboldt's and Dr. 

McIntyre's petition for extraordinary relief as to Barrett's battery claim 

and direct the clerk of this court to issue a writ of mandamus instructing 

the district court to set aside its earlier order, and grant Humboldt's and 

Dr. McIntyre's motion to dismiss in its entirety. 

Hardesty 

We concur: 

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