Cummings v. Barber
Annotate this Case
In this medical malpractice case, the Supreme Court held that although Nev. Rev. Stat. 41A.100(1) generally applies only to objects left in a patient's body during the at-issue surgery, it can also apply in cases where, as in the instant case, the sole purpose of the at-issue surgery is to remove medical devices and related hardware implanted during a previous surgery.
Plaintiff brought a medical malpractice case alleging that Defendants breached the professional standard of care by overlooking or unintentionally leaving surgical clips in her body following a 2014 surgery. Relying on section 41A.100(1), Plaintiff did not attach a medical expert affidavit to her complaint. Defendant moved for summary judgment, arguing that she intentionally left the surgical clips in Plaintiff's stomach following the at-issue surgery because removal would be too risky. The district court granted summary judgment, concluding that section 41A.100(1)(a) did not apply and, therefore, Plaintiff was required to present an expert affidavit to establish negligence. The Supreme Court reversed, holding that Defendant did not conclusively negate the statutory presumption of negligence and that Plaintiff was not required to provide expert testimony to survive summary judgment.
Sign up for free summaries delivered directly to your inbox. Learn More › You already receive new opinion summaries from Supreme Court of Nevada. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.