Appellants, heirs of the late Roman Fernandez, Sr. ("Roman"), have appealed from summary judgment entered below on grounds that their wrongful death claim was untimely filed. The district court ruled that the claims filed against respondents Dr. Mark Kozar and Washoe Medical Center as substituted Doe defendants in a second amended complaint filed on August 18, 1989, were not within the purview of NRCP 10(a)
Summary judgment is proper only "when the moving party is entitled to judgment as a matter of law, and no genuine issue of material fact remains for trial." Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989); Morrow v. Barger, 103 Nev. 247, 250, 737 P.2d 1153, 1154 (1987). NRCP 56(c). The sole issue before us is one of law, as there are no disputed material facts relevant to the resolution of this appeal.
Roman died on October 17, 1986. His heirs argue that he died an early death due to medical malpractice. However, the merits of the underlying action are not at issue in the instant appeal. We are here concerned only with discerning the appropriate statute of limitations in a wrongful death cause of action.
The evidence of record reveals that the original complaint was filed before all defendants were known, before Roman had died, and before all the causes of action had fully accrued.
Following Roman's death, his heirs successfully substituted themselves as plaintiffs
The district court's reasoning was flawed in that it failed to take into meaningful consideration the fact that at the time of the filing of the original complaint Roman was still alive. The heirs' claim for wrongful death was nonexistent at that point.
Our previous decisions have made clear that "in an action for wrongful death, the injury contemplated by NRS 41A.097 is the death of the malpractice victim and the two-year period of limitation begins to run from the time of death or the discovery thereof." Gilloon v. Humana, Inc., 100 Nev. 518, 519-20, 687 P.2d 80, 81 (1984). "[T]he very earliest that the statute of limitations could begin to run for a wrongful death action would be at death, and not before." Pope v. Gray, 104 Nev. 358, 363 n. 6, 760 P.2d 763, 766 n. 6 (1988).
Although the heirs were aware of the medical problems besetting Roman during the course of his treatment, the heirs had no basis for a claim for wrongful death until Roman's demise, and "death was the final element necessary to trigger the two year statute of limitations." Pope v. Gray, 104 Nev. 358, 363 n. 6, 760 P.2d 763, 766 n. 6. (1988). The statute of limitations for wrongful death began to run in the instant case upon Roman's death, and absent a period of tolling, would have expired two years later, that is, on October 17, 1988. However, the cause of action was statutorily tolled for ten months and seven days while the claim was under consideration by the Nevada Medical Legal Screening Panel. NRS 41A.097(2)(b).
A wrongful death statute "makes no account of the wrong done to the deceased; it is only concerned with the loss to the relatives." Perry v. Tonopah Mining Co., 13 F.2d 865, 870 (D.Nev. 1915). The cause of action has "no existence before the death of the decedent has occurred." Gilloon v. Humana, Inc., 100 Nev. 518, 520, 687 P.2d 80, 81 (1984). "[A] wrongful death action ... creates an independent right in designated survivors for damages they sustain by reason of the decedent's death." Fisher v. Missoula White Pine Sash Co., 164 Mont. 41, 518 P.2d 795, 797 (1974). NRS 41A.097(1) gives the heirs such a cause of action against a "provider of health care." It is thus clear that a wrongful death claim is an entirely new cause of action created in the heirs. At the time the heirs were
For the reasons stated above, the order granting summary judgment in favor of respondents was erroneously granted. We therefore reverse and remand for further proceedings.