Before Justices Douglas, Hardesty and Paraguirre. Per Curiam.
In this petition for writ of mandamus, the Court addresses the issue of whether NRS 11.500 (Nevada’s “savings statute”) can apply to save otherwise time-barred medical malpractice claims that have been previously dismissed for failure to comply with the affidavit requirements of NRS 41A.071. The Court reviews the history of the case, in which the original complaint, filed before the expiration of the statute of limitations, was filed without attaching the expert affidavit required under NRS 41A.071. The plaintiffs subsequently submitted an errata to the complaint attaching the expert affidavit. After a first round of writ practice before the Nevada Supreme Court, the district court dismissed the plaintiffs’ medical malpractice claims without prejudice due to the failure to attach the expert affidavit. See Saxena v. District Court, Docket 54775 (Order Granting in Part Petition for Writ of Mandamus, January 8, 2010). After the dismissal, the plaintiffs filed a new complaint on January 21, 2010, reasserting the dismissed medical malpractice claims. Some defendants filed a motion to dismiss, arguing that the statute of limitations had passed before plaintiffs filed the complaint with the appropriate affidavit. The district court denied the motion, and a subsequent motion for summary judgment, holding that the savings statute at NRS 11.500 allowed plaintiffs an additional 90 days after dismissal of the original action to re-file their claims. NRS 11.500 specifically provides that if an action “that is commenced within the applicable period of limitations is dismissed” for lack of subject matter jurisdiction, the action may be recommenced within the later of: (1) the applicable period of limitations, or (2) 90 days after the action is dismissed. The Nevada Supreme Court granted defendants’ writ petition, holding that the original action was never “commenced” because a failure to comply with the affidavit requirement of NRS 41A.071 renders a complaint void ab initio and means that the complaint never legally existed. Thus, the Court held that because the previously dismissed action was never actually “commenced,” NRS 11.500 does not apply. The Court then directed the district court to dismiss plaintiffs’ medical malpractice claims from the January 21, 2010 complaint because the statute of limitations for those claims had expired. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
