Negligent Hiring, Training, and Supervision Claims Against Health-Care Providers Are “Professional Negligence” When Tied to Treatment, Triggering NRS 41A.071’s Affidavit Requirement

Case: LAS VEGAS SURGICAL ASSOC. v. MADDUX
Court: Supreme Court of Nevada
Date: 2026-04-10
Disposition: Affirmed in part, vacated in part, and remanded

1. Introduction

This appeal and cross-appeal arises from a wrongful death and medical malpractice jury trial stemming from a laparoscopic hernia repair performed by Charles Brian Kim, M.D. Larry Maddux—who, as a Jehovah’s Witness, declined blood transfusions—died after Dr. Kim lacerated his aorta early in surgery. Larry’s widow, Gloria D. Maddux, sued Dr. Kim and his employer, Las Vegas Surgical Associates, LLP (LVSA).

The central legal issue was whether Gloria’s claim against LVSA for negligent hiring, training, and supervision is governed by Nevada’s medical malpractice statutory scheme, NRS Chapter 41A—particularly NRS 41A.071’s expert affidavit requirement—when the alleged hiring/supervision failures are “inextricably tied” to negligent medical treatment occurring during the medical relationship.

Secondary issues included: (1) whether certain “prior misconduct/prior claims” evidence required a new trial for Dr. Kim; and (2) whether Gloria was entitled to attorney fees under NRCP 68 after her offer of judgment.

2. Summary of the Opinion

• LVSA liability: The Supreme Court held that the negligent hiring, training, and supervision claim against LVSA sounds in professional negligence because it stems from negligent medical treatment occurring “during the course of the medical relationship.” Therefore, it is subject to NRS Chapter 41A, including NRS 41A.071. The judgment against LVSA was vacated and the case remanded for the district court to determine the proper remedy (including whether any vicarious liability theory applies and how liability should be apportioned).
• Dr. Kim liability: The Supreme Court affirmed the judgment against Dr. Kim, concluding that admission of challenged evidence did not warrant reversal (and any error was harmless given limiting instructions and substantial evidence of negligence).
• Attorney fees (NRCP 68): The Supreme Court rejected Gloria’s cross-appeal for attorney fees because the judgment remaining after appeal did not satisfy NRCP 68’s requirements, citing In re Est. & Living Tr. of Miller.

3. Analysis

A. Precedents Cited (and How They Drove the Result)

• Washoe Med. Cir. v. Second Jud. Dist. Ct.
  Cited for the rule that a professional negligence complaint filed without a required NRS 41A.071 affidavit is “void ab initio” and must be dismissed. The opinion also quotes Limprasert to reinforce that such a complaint “does not legally exist and cannot be amended.”
• Estate of Curtis v. South Las Vegas Medical Investors, LLC (overruled in part)
  The district court relied on the “common knowledge exception” language in Estate of Curtis to keep LVSA in the case without Chapter 41A constraints. The Supreme Court responds in two steps:
  • First, it reads Estate of Curtis itself as warning that negligent hiring/training/supervision cannot be used to circumvent Chapter 41A “when the allegations supporting the claims sound in professional negligence.”
  • Second, it emphasizes that Estate of Curtis has been “overruled in part by Limprasert v. PAM Specialty Hospital of Las Vegas LLC,” and the Court applies the modern framing.
• Limprasert v. PAM Specialty Hospital of Las Vegas LLC (en banc)
  Supplies two key propositions adopted here:
  • The “sole inquiry” is whether the claim involves a health-care provider rendering services in a way that causes injury—not whether expert evidence is necessary for jurors to understand the allegations.
  • A missing required affidavit renders the complaint void ab initio and not amendable.
  The Court also rejects the attempt to avoid applying Limprasert due to timing (trial predating the decision), applying the normal rule that new judicial rules apply to similar cases pending on review.
• Renown Reg'l Med. Ctr. v. Second Jud. Dist. Ct.
  This is the opinion’s operational test: if the negligent action occurs “during the course of the medical relationship,” any claim stemming from it sounds in professional negligence, not ordinary negligence. The Court uses Renown to classify Gloria’s negligent hiring/training/supervision claim as professional negligence because it is “inextricably tied” to the surgical injury and death.
• Szymborski v. Spring Mountain Treatment Ctr.
  Provides the conceptual divider: ordinary negligence does not involve medical judgment, treatment, or diagnosis. The Court invokes this to confirm that the relevant “gravamen” analysis focuses on whether the allegations are linked to medical services and the medical relationship.
• Breithaupt v. USAA Property and Casualty Insurance Company and Nevada Yellow Cab Corporation v. Kighth Judicial District Court
  Gloria argued Breithaupt supported nonretroactivity. The Court limits that argument by citing Nevada Yellow Cab, which confined Breithaupt largely to legislative amendments (prospective application absent legislative directive), not to the retroactivity of judicial decisions.
• Deutsche Bank Nat'l Tr. Co. v. Collegium Fund LLC Series 16
  Anchors the Court’s retroactivity stance: when an appellate court announces a new rule, it ordinarily applies to all similar cases pending on review where preserved. This supports applying Limprasert/Renown to this appeal.
• Warren v. Reno Orthopaedic Clinic, Ltd.
  Cited as an example of Limprasert being applied in other pending appeals, reinforcing uniform application and rejecting selective retroactivity.
• Zhang v. Barnes
  Plays two roles:
  • Remedy/remand: where apportionment and vicarious liability theories are unclear or inadequately developed, remand is appropriate.
  • Coextensive liability: where negligent hiring/training/supervision is based on underlying negligent medical treatment, liability is “coextensive,” which also informs the Court’s NRCP 68 analysis.
• Rives v. Farris (evidentiary issue)
  Dr. Kim and LVSA relied on Rives to challenge evidence of prior malpractice claims and alleged intoxication. The Court distinguishes Rives because that case barred such evidence to prove a doctor fell below the standard of care, while here the evidence was admitted for a limited purpose (LVSA’s hiring/supervision) with a limiting instruction directing the jury not to use it against Dr. Kim on the professional negligence claim.
• Richmond v. State, Taylor v. Brill, Boyd v. Pernicano, Peterson v. Pittsburg Silver Peak Gold Mining Co., Morrison v. Atr Cal., Krause Inc. v. Little, and Albert H. Wohlers & Co. v. Bartgis
  These cases collectively supply the standards for (1) preserving evidentiary issues (motions in limine), (2) abuse-of-discretion review, (3) harmless error, (4) burden to show prejudice, and (5) presumptions that juries follow instructions and draw reasonable inferences for the prevailing party.
• In re Est. & Living Tr. of Miller
  Controls the NRCP 68 question: the “relevant judgment amount” is what remains after appeal. With LVSA’s judgment vacated and Dr. Kim’s affirmed judgment being less than the offer, NRCP 68 fees are unavailable.

B. Legal Reasoning

1. Classifying the LVSA claim: “ordinary negligence” vs. “professional negligence”

The Court applies the modern Chapter 41A classification rule: it asks whether the “gravamen” of the claim is a breach involving medical judgment, diagnosis, or treatment, and—critically—whether the claim stems from negligent action occurring during the medical relationship. If so, it is professional negligence even if the plaintiff frames it as “negligent hiring/training/supervision.”

The Court holds Gloria’s claim against LVSA is professional negligence because it is “inextricably tied” to Larry’s injury and death during surgery; without the operative negligence, there would be no claim against LVSA. Thus, NRS Chapter 41A applies, and LVSA qualifies as a “provider of health care” under NRS 41A.017.

2. Consequence of Chapter 41A classification: NRS 41A.071 and “void ab initio”

Because the claim is professional negligence, it is subject to NRS 41A.071. Under Washoe Med. Cir. v. Second Jud. Dist. Ct. and Limprasert v. PAM Specialty Hospital of Las Vegas LLC, failure to attach the required expert affidavit renders the complaint “void ab initio” as to that defendant/claim—meaning it is treated as legally nonexistent, not merely defective.

3. Retroactivity: applying post-trial decisions to cases on appeal

Gloria argued Breithaupt v. USAA Property and Casualty Insurance Company counseled against retroactive application of Limprasert. The Court rejects this, relying on Nevada Yellow Cab Corporation v. Kighth Judicial District Court to limit Breithaupt to statutory amendments and citing Deutsche Bank Nat'l Tr. Co. v. Collegium Fund LLC Series 16 for the general rule that new judicial rules apply to similarly situated cases pending on review where preserved. The Court also emphasizes uniformity: Limprasert has already been applied in other pending appeals (e.g., Warren v. Reno Orthopaedic Clinic, Ltd.), so selective nonapplication would be inappropriate.

4. Remedy: vacatur and remand rather than affirmance on a different theory

Although Gloria urged the Court to preserve LVSA’s liability via vicarious liability for Dr. Kim’s acts, the Court finds the record and briefing inadequate to resolve that issue “in the first instance.” Following Zhang v. Barnes, it vacates the LVSA judgment and remands for the district court to determine the proper remedy, including apportionment and any viable theory consistent with Chapter 41A.

5. Evidentiary challenge: why Dr. Kim does not get a new trial

The Court reviews admission of evidence for abuse of discretion and applies harmless-error principles (NRCP 61; Boyd v. Pernicano). It distinguishes Rives v. Farris because the evidence here (alleged alcohol odor letter; references to prior malpractice claims/lawsuits) was admitted for the limited purpose of LVSA’s negligent hiring/training/supervision claim, and the jury was instructed not to use it in deciding the professional negligence claim against Dr. Kim.

The Court stresses two additional points supporting harmlessness: (1) juries are presumed to follow limiting instructions (Krause Inc. v. Little; Albert H. Wohlers & Co. v. Bartgis), and (2) the record contained substantial, largely undisputed evidence of operative negligence and delayed remedial response. Thus, no showing was made that the evidence “substantially affected” Dr. Kim’s rights under Peterson v. Pittsburg Silver Peak Gold Mining Co..

6. NRCP 68 attorney fees: “judgment after appeal” controls

The Court applies NRCP 68(f)(1) and In re Est. & Living Tr. of Miller: the operative judgment is the one that remains after appeal. With LVSA’s judgment vacated and Dr. Kim’s capped judgment below the $500,000 offer, Gloria cannot recover NRCP 68 attorney fees. The Court adds that even if LVSA were later liable vicariously, Zhang v. Barnes indicates the liability would be “coextensive,” limiting any judgment beyond Dr. Kim’s amount.

C. Impact

• Reinforces a broad Chapter 41A reach for institutional negligence claims: Claims styled as negligent hiring, training, supervision, or “corporate negligence” will be treated as professional negligence whenever they are tethered to injuries arising from medical treatment during the medical relationship. Plaintiffs cannot avoid Chapter 41A by relabeling the theory.
• Affidavit practice becomes case-dispositive: The decision underscores that NRS 41A.071 is not a technical pleading rule but a gatekeeping mechanism with “void ab initio” consequences; strategic pleading against entities (group practices, surgery centers) must anticipate affidavit requirements directed to institutional duties, not merely the treating physician.
• Uniform retroactivity for pending appeals: The opinion aligns retroactivity of judicial decisions with administrative fairness—similarly situated litigants on appeal receive the same rule set—reducing incentives to forum-shop timing and encouraging consistent appellate outcomes.
• Trial-management lesson on “other acts” evidence: The Court’s approval (and harmlessness analysis) signals that limiting instructions can successfully cabin potentially prejudicial “prior claims/misconduct” evidence to the claims for which it is genuinely relevant—though parties should expect close scrutiny under relevance and prejudice principles.
• NRCP 68 reality check: Offers of judgment must be evaluated against post-appeal outcomes; vacatur/remand risk can defeat fee-shifting even after a plaintiff’s trial victory.

4. Complex Concepts Simplified

• “Professional negligence” vs. “ordinary negligence”: Professional negligence concerns failures tied to medical services (judgment, diagnosis, treatment) within the medical relationship. Ordinary negligence is independent of medical care (e.g., a nonmedical premises hazard not requiring medical-service evaluation).
• NRS 41A.071 expert affidavit: Nevada requires a supporting medical expert affidavit when filing a professional negligence complaint. If required and missing, the complaint is treated as never having legally existed (“void ab initio”).
• “Void ab initio”: A legal nullity from the start—not a correctable defect. Under the cited cases, it cannot be cured by later amendment.
• “Limiting instruction”: A direction from the judge telling jurors they may consider certain evidence only for a specific purpose (here, LVSA’s hiring/supervision) and not for another (Dr. Kim’s standard of care). Appellate courts generally presume jurors follow these instructions.
• Harmless error: Even if a judge made an evidentiary mistake, an appellate court will not reverse unless the mistake likely affected the outcome—i.e., it substantially affected the appellant’s rights.

5. Conclusion

LAS VEGAS SURGICAL ASSOC. v. MADDUX cements that negligent hiring, training, and supervision claims against a health-care entity are governed by NRS Chapter 41A when the alleged institutional failures are tied to negligent medical treatment occurring during the medical relationship. That classification carries the high-stakes consequence of NRS 41A.071: absent a required expert affidavit, the claim is void ab initio.

The Court simultaneously affirms a pragmatic trial-error approach: evidence potentially prejudicial to a physician may remain admissible for an institutional-liability theory when properly limited, and reversal requires a concrete showing of prejudice. Finally, the decision reiterates that NRCP 68 fee entitlement turns on the judgment that survives appeal—not the pre-appeal verdict.