Professional Negligence Law Reporter

A Nevada appellate court held that a trial court had erred in dismissing a medical negligence case in which factual disputes remained regarding the relevant accrual date for the plaintiff’s claims.

Keith Boman experienced radiating pain from his spine. Despite epidural injections, his condition did not improve. He consulted physician Michael Elkanich, who reviewed Boman’s films and diagnosed severe lumbar spinal stenosis. A month later, in October 2020, Elkanich performed a laminectomy on Boman at a hospital. When Boman awoke from surgery, he had no feeling or movement in his left leg. Elkanich told him that his spinal cord dura was apparently “nicked” and then repaired during the procedure. Elkanich also told Boman that the issues he was experiencing with his left leg can occur and should improve over time.

Boman did not regain feeling or movement in his leg despite bed rest. He was transferred to a rehabilitation facility and underwent an MRI, which showed a hematoma that was crowding the nerve roots around his lumbar and sacral region. Another surgery improved his back pain but did not lead to a return of sensation in his left leg. Boman went to physical therapy for five months and met with Elkanich, who allegedly downplayed his continued post-surgery complications. In June 2021, another physician diagnosed Boman as having cauda equina syndrome.

In June 2022, Boman sued Elkanich and Bone & Joint Specialists, alleging professional negligence and other claims. The defense moved to dismiss on limitations grounds, asserting that Boman had been placed on inquiry notice of his potential claims against Elkanich in 2020, when he learned of the nicked dura and hematoma and experienced neurological symptoms.

The trial court granted the motion, finding that Boman was on inquiry notice of his legal injury in 2020, when Elkanich stated that the dura had been nicked, or, at the latest, when an MRI showed the presence of a hematoma requiring surgery. Thus, the court determined, the plaintiff filed his complaint well beyond the applicable one-year limitations statute.

Reversing, the appellate court noted that under Nev. Rev. Stat. §41A.097(2), an action for injury against a health care provider may not be commenced more than three years after the date of injury or one year after the plaintiff discovers—or through reasonable diligence should have discovered—the injury. Citing case law, the court added that a plaintiff discovers an injury when they know, or through the use of reasonable diligence should have known, of facts that would put a reasonable person on inquiry notice of a cause of action. An accrual date is generally a fact question to be decided by a jury, but a court may determine the accrual date as a matter of law when the evidence is irrefutable, the court said.

Applying these principles here, the court concluded that the trial court erred in finding, as a matter of law, that Boman was on inquiry notice of his legal injury by October 2020 at the latest. Although Elkanich informed Boman that his dura had been nicked and repaired during surgery and he surgically addressed the hematoma, Elkanich also advised Boman that his issues could occur following surgery and should improve over time. Moreover, because Boman was under Elkanich’s continued care, he was fully entitled to rely on the physician’s skill and judgment.

Accordingly, the court concluded that Boman had not been aware of Elkanich’s alleged negligence until he sought a second opinion in June 2021 and was diagnosed as having cauda equina syndrome. The court therefore held that there was no irrefutable evidence that the limitations statute had expired when Boman filed his complaint, and factual disputes remained regarding the accrual date of the limitations statute for Boman’s claims.

Therefore, the court remanded.

Citation: Boman v. Elkanich, 548 P.3d 1232 (Nev. Ct. App. 2024).

Plaintiff counsel: Ariana Caruso, Henry Hymanson, and Philip Hymanson, all of Las Vegas.