Wray

concurring:

I concur with the result in the per curiam opinion. However, I write separately because I conclude that the Federal Rules of Evidence, rather than Nevada state law, control the admission or exclusion of the screening panel’s findings.

I.

The district court admitted the screening panel’s findings solely on the basis of the Nevada medical malpractice statute, NRS §§ 41A.003-41A.120. Because the district court did not consider the Federal Rules of Evidence, we should do so. See United States v. Breitkreutz, 8 F.3d 688, 692 (9th Cir.1993).

The screening panel’s findings appear to be relevant. 1 However, as shown in the per curiam opinion, the findings did not comply with state law. Therefore, the screening panel’s findings, made in contradiction to statutory mandate and introduced without a possibility of challenge as to their bases or explanation as to their context, are so unduly prejudicial, misleading, and lacking in probative value that they must be excluded under Fed.R.Evid. 403.

II.

The per curiam opinion applies the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938), to hold that NRS § 41A.016(2) controls the admission or…

Per Curiam; Concurrence by District Judge McLAUGHLIN.

The appellant Connie Wray arrived at the emergency room of St. Mary’s Hospital in Reno, Nevada, on March 31, 1985, suffering from severe abdominal pain and low blood pressure. Wray was twenty-eight to twenty-nine weeks pregnant. As she was waiting in the emergency room, she went into shock. *1416 Attending physicians diagnosed abruptio placenta, with severe fetal distress. Wray was immediately prepared for a caesarean section. The appellee, Dr. Paul Gregory, an anesthesiologist, was called from another delivery to administer anesthesia. Dr. Gregory was unable to locate his first choice anesthetic, Ketamine, within the few seconds available to him in this emergency situation, and instead used the anesthetic thiopental. The record indicates that approximately ninety percent of caesarean sections in this country are done under thiopental, but that Ketamine is preferred where the patient is in the initial stages of shock.

Approximately five to eight minutes after the administration of anesthesia, and after baby Jacob was delivered, Wray suffered a cardiac arrest. Although she was revived, she remained in a coma for five weeks.…