The Renown Overreach: How Nevada's Supreme Court Transformed a Procedural Safeguard into Substantive Law

Introduction

In Renown Regional Medical Center v. Second Judicial District Court, 141 Nev., Adv. Op. 64 (Dec. 11, 2025), the Nevada Supreme Court may have crossed a constitutional line. While applying the "gravamen test" to determine whether claims sound in professional or ordinary negligence, the Court transformed what has historically been a procedural tool into a substantive weapon that eliminates viable claims before trial. This transformation raises serious concerns about separation of powers, the right to trial by jury, and the proper boundaries of judicial authority.

The Historical Purpose of NRS 41A.071: A Procedural Gatekeeping Mechanism

To understand the constitutional problem with Renown, we must first examine what NRS 41A.071 was designed to do—and what it was not.

Legislative Intent: Streamlining Procedure, Not Eliminating Claims

The Nevada Supreme Court has explicitly acknowledged the procedural nature of the expert affidavit requirement:

According to NRS 41A.071's legislative history, the requirement that a complaint be filed with a medical expert affidavit was designed to streamline and expedite medical malpractice cases and lower overall costs, and the Legislature was concerned with strengthening the requirements for expert witnesses.

Limprasert v. PAM Specialty Hospital, 140 Nev., Adv. Op. 45, 550 P.3d 825, 828 (2024).

This legislative intent is unambiguous and entirely procedural. The affidavit requirement serves as a screening mechanism to ensure that professional negligence claims have merit before proceeding to discovery and trial. The 2002 Special Session reforms replaced the burdensome Medical-Legal Screening Panel with a simpler affidavit requirement to "weed out frivolous claims early." Washoe Medical Center v. Second Judicial District Court, 122 Nev. 1298, 1304, 148 P.3d 790, 794 (2006).

Nowhere in the legislative history—or in the KODIN constitutional amendment—is there any suggestion that the affidavit requirement was designed to eliminate substantive claims or force the subsumption of ordinary negligence claims into professional negligence claims.

The Pre-Renown Use of Gravamen Analysis

Before Renown, Nevada courts consistently applied gravamen analysis for procedural purposes only. Courts used this analysis to determine:

1. Whether NRS 41A.071's affidavit requirement applied

2. Whether the medical malpractice statute of limitations governed

3. Other procedural questions related to NRS 41A's framework

This application made sense. Gravamen analysis helped courts decide which procedural rules to apply without usurping the jury's role in finding facts or the Legislature's role in defining substantive rights.

Cases like DeBoer v. Senior Bridges of Sparks Family Hospital, Inc., 128 Nev. 406, 282 P.3d 727 (2012), Szymborski v. Spring Mountain Treatment Center, 133 Nev. 638, 403 P.3d 1280 (2017), and Estate of Curtis v. South Las Vegas Medical Investors, LLC, 466 P.3d 1263 (Nev. 2020), all applied gravamen analysis to resolve procedural questions—not to eliminate substantive causes of action.

The Renown Transformation: From Procedural Tool to Substantive Bar

Renown changes everything. The Court now uses gravamen analysis not merely to determine whether an affidavit is required, but to substantively eliminate ordinary negligence claims through "subsumption"—even when compliant affidavits have been filed.

The Facts Matter

In Renown, the plaintiff filed compliant NRS 41A.071 affidavits addressing her professional negligence claims. The procedural purpose of the statute was fulfilled. Yet the Court still subsumed her ordinary negligence claims (for negligent credentialing, supervision, and discharge policies) into the professional negligence claim.

This outcome cannot be squared with the statute's procedural purpose. If the affidavit requirement exists to screen frivolous claims and ensure expert support, why does subsumption occur after affidavits are filed? The answer is troubling: Renown uses gravamen analysis for a purpose the Legislature never authorized—claim elimination.

Creating Law Without Legislative Authority

The KODIN constitutional amendment said nothing about eliminating ordinary negligence claims or requiring subsumption when conduct occurs during the course of medical care. The voters explicitly addressed certain issues:

• Damage caps (NRS 41A.031)

• Shortened statutes of limitations (NRS 41A.097)

• Expert affidavit requirements (NRS 41A.071)

Had voters intended to prohibit dual claims or require subsumption of ordinary negligence into professional negligence, they would have said so explicitly. They did not. Renown's subsumption rule creates a substantive limitation on claims that appears nowhere in KODIN or the 2002 legislative reforms.

The Constitutional Problems

1. Violation of Separation of Powers

The Nevada Constitution establishes a clear separation between the three branches of government. Article 3, Section 1 provides that the powers of government are divided among the legislative, executive, and judicial departments, and no person charged with the exercise of powers properly belonging to one shall exercise any functions appertaining to either of the others.

Procedure is the Court's province; substantive law is the province of the Legislature. Lyft, Inc. v. Eighth Judicial District Court, 137 Nev. 832, 835, 501 P.3d 994, 999 (2021) (holding NRS 52.380 unconstitutional because it attempts to abrogate an existing rule of procedure that the Court prescribed under its inherent authority).

In Renown, the opposite problem occurred—but it's still unconstitutional. The Court took a procedural statute (NRS 41A.071) and transformed it into a substantive rule that eliminates causes of action. This is judicial legislation, plain and simple.

The Legislature could write a substantive law requiring subsumption if it wished. It has not done so. The Court cannot do the Legislature's job.

2. Violation of the Right to Trial by Jury

Article 1, Section 3 of the Nevada Constitution guarantees the right to trial by jury. This right includes "the right to have factual issues determined by a jury." Drummond v. Mid-West Growers Cooperative Corp., 91 Nev. 698, 711, 542 P.2d 198, 207 (1975).

Whether a healthcare provider was "rendering services" within the meaning of NRS 41A.015 is quintessentially a factual question. It requires examining:

• What the defendant was actually doing

• Whether the conduct involved medical judgment, diagnosis, or treatment

• Whether the conduct was independent of the professional relationship

• The timing and context of the alleged negligence

These are fact questions, not legal conclusions. As the Nevada Supreme Court has repeatedly held: "In Nevada, issues of negligence and proximate cause are considered issues of fact and not of law, and thus they are for the jury to resolve." Nehls v. Leonard, 97 Nev. 325, 328, 630 P.2d 258, 260 (1981).

By allowing—indeed, requiring—district courts to make substantive determinations about whether conduct constitutes "rendering services" at the motion to dismiss stage, Renown transfers the fact-finding function from juries to judges. This makes the constitutional right to trial by jury "practically unavailable" in violation of Barrett v. Baird, 111 Nev. 1496, 1502, 908 P.2d 689, 694 (1995), and Tam v. Eighth Judicial District Court, 131 Nev. 792, 796-97, 358 P.3d 234, 238 (2015).

3. Conflict with Buzz Stew Standards

Nevada's motion to dismiss standard, established in Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008), requires courts to accept the plaintiff's factual allegations as true and construe all inferences in the plaintiff's favor. A complaint should be dismissed "only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief."

Renown appears to create an exception to Buzz Stew for medical negligence cases. Under Renown, regardless of what the complaint alleges and what the expert affidavits say, district courts can now determine the facts—without discovery and as a matter of law—that a hospital or doctor's negligence related to medical diagnosis, judgment, or treatment.

This is fundamentally incompatible with Buzz Stew's requirement that courts accept plaintiff's allegations as true at the pleading stage.

The Definitional Problem: "In Rendering Services"

NRS 41A.015 defines professional 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."

The phrase "in rendering services" has been critical to Nevada law for decades—well before KODIN existed. Fernandez v. Admirand, 108 Nev. 963, 968-69, 843 P.2d 354, 358 (1992). This phrase allows for ordinary negligence claims against healthcare providers when the conduct is not "in rendering services."

Consider a simple example: A doctor causes a rear-end car accident. If "in rendering services" were not part of the statute, one could argue (and surely would) that NRS 41A applies to any claim against a healthcare provider, requiring expert affidavits and imposing damage caps even for automobile negligence. The phrase "in rendering services" prevents this absurd result.

Whether conduct constitutes "rendering services" is a factual determination that requires examining what actually happened. Renown removes this determination from juries and assigns it to judges at the pleading stage—before discovery, before witnesses are heard, before the full factual record develops.

The Discovery Problem

The Nevada Supreme Court has previously recognized that determining gravamen for NRS 41A.071 procedural purposes may require discovery. In Yafchak v. South Las Vegas Medical Investors, LLC, 519 P.3d 37, 40 (Nev. 2022), the Court acknowledged that based on the plaintiff's complaint alone, it was sometimes unclear whether claims related to professional negligence or other causes of action.

If gravamen can be unclear for procedural purposes even after reviewing the complaint, how can courts make substantive determinations about subsumption without any discovery? This illogic underscores the fundamental problem: Renown asks courts to do something—make definitive factual findings—that they cannot properly do at the motion to dismiss stage.

Practical Implications and Perverse Incentives

Renown's approach creates perverse incentives and practical problems:

1. The Vagueness Strategy

Plaintiffs' attorneys now have an incentive to draft complaints as vaguely as possible. If specific allegations can be used against plaintiffs in subsumption analysis, the safest strategy is to be as generic and conclusory as possible—precisely the opposite of what notice pleading should encourage.

2. The Prophylactic Affidavit

Even when counsel believes a claim sounds purely in ordinary negligence, the prudent approach now requires filing an NRS 41A.071 affidavit prophylactically—just in case a court later decides the claim should be subsumed. This defeats the efficiency goals of the 2002 reforms.

3. The Procedural Void

Renown speaks of "subsumption," but Nevada has no procedural mechanism for subsumption. The Rules of Civil Procedure provide for motions to dismiss under NRCP 12(b)(5), but there is no "Motion to Subsume."

How should courts analyze these motions? Under what standard? Buzz Stew addresses dismissal, not subsumption. The procedural framework simply doesn't exist for what Renown requires.

4. Alternative Pleading Eliminated

Nevada's rules permit alternative and inconsistent pleading. NRCP 8(e)(2) allows parties to "state as many separate claims or defenses as the party has regardless of consistency."

Renown's subsumption doctrine eliminates this right in the medical negligence context. Plaintiffs cannot plead in the alternative that conduct was either ordinary or professional negligence and let the jury decide which characterization fits the facts. The court decides at the outset, based on the pleadings alone.

Distinguishing Procedural from Substantive Use of Gravamen Analysis

To be clear: gravamen analysis is not inherently problematic. When used for its intended procedural purpose, it serves an important function.

Appropriate Uses of Gravamen Analysis:

1. Determining affidavit requirements: Does this claim require an NRS 41A.071 affidavit?

2. Statute of limitations questions: Does the one-year or three-year limitations period apply?

3. Procedural compliance: Has the plaintiff satisfied procedural prerequisites?

Inappropriate Uses of Gravamen Analysis:

1. Eliminating viable causes of action: Subsumption of claims that are factually distinct from professional negligence

2. Making substantive factual findings: Determining what a defendant was actually doing without discovery or trial

3. Preventing jury determinations: Deciding as a matter of law questions that should go to the jury

The line is clear: gravamen analysis may determine which procedural rules apply, but it should not determine whether a substantive claim can proceed to trial.

A Better Approach

Nevada courts should return to the pre-Renown understanding: gravamen analysis is a procedural tool, nothing more.

For Affidavit Requirements

If there is any reasonable argument that a claim sounds in professional negligence, require an affidavit. This protects against dismissal and serves the statute's screening function. But once a compliant affidavit is filed, allow both claims to proceed.

For Factual Determinations

Whether conduct was "in rendering services" should be determined by the jury after considering the full evidentiary record. At the motion to dismiss stage, courts should apply Buzz Stew: if the plaintiff alleges facts that, if true, would establish ordinary negligence independent of professional obligations, the claim survives.

For Close Cases

When it's unclear whether conduct involves medical judgment or administrative/clerical functions, allow discovery to develop the record. As Yafchak acknowledged, sometimes you cannot tell from the complaint alone.

Conclusion

The Nevada Supreme Court's approach in Renown represents a fundamental departure from the proper role of gravamen analysis. What was designed as a procedural screening mechanism has become a substantive barrier to relief—one that transfers fact-finding from juries to judges, creates law where the Legislature has been silent, and makes constitutional rights "practically unavailable."

The procedural/substantive distinction matters. Courts have inherent authority over procedure. They do not have authority to create substantive law. By using gravamen analysis to eliminate claims rather than merely to determine which procedural rules apply, Renown crosses the constitutional line separating judicial and legislative powers.

The Legislature could address these issues if it chose. It could explicitly require subsumption. It could expand NRS 41A's definition of professional negligence to encompass all conduct by healthcare providers, regardless of whether it involves medical judgment. It could eliminate ordinary negligence claims against healthcare providers entirely.

But the Legislature has not done these things. Until it does, courts should respect the boundaries of their authority. Gravamen analysis should remain what it was designed to be: a procedural tool for determining which rules apply, not a substantive weapon for eliminating claims before trial.

The solution is straightforward: Return gravamen analysis to its procedural roots. Use it to determine affidavit requirements and statutes of limitations. But let juries decide the facts, let plaintiffs plead alternative theories, and let the substantive law develop through the legislative process as the Constitution requires.

Murdock & Associates operates on a selective caseload model, allowing the firm to devote extensive resources and personalized attention to each client. The firm's philosophy centers on thorough case preparation and relentless pursuit of justice for those who have suffered devastating losses. With a practice built on decades of experience, strategic litigation, and a track record of significant verdicts and settlements, Robert E. Murdock continues to fight for accountability and compensation for Nevada's most seriously injured victims. We can be reached at 702-685-6111 or rem@murdockassociates.com.