Saving Statute Does Not Thwart Dismissal

Plaintiffs’ lawyers lose yet another “savings statue” case in Nevada. Malpractice lawyers just file too many cases way too late. This is a dangerous practice in any personal injury case because there are too many things that can go wrong filing a lawsuit at the last minute. But the problem is particularly pronounced in medical malpractice cases.

In Wheble v. Grzeda, the plaintiffs filed a wrongful death medical malpractice lawsuit without attaching an expert affidavit as required by Nevada law (and Maryland). Plaintiffs then filed a new complaint after the statute of limitations had passed reasserting the dismissed claims.

Plaintiff’s fought a motion to dismiss, claiming that Nevada’s “savings statute” allowed them to refile their lawsuit because it allows for a suit that is filed within the applicable limitations period to be refiled within a certain period of time after dismissal. But, the Nevada Supreme Court found that a medical malpractice complaint that is filed without the requisite expert affidavit is void. So essentially, the original lawsuit never happened.

You can read the court’s opinion here.

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