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Can a medical malpractice case be reopened that was dismissed by the plantiff without prejudice?

Long Beach, CA |
Filed under: Litigation

The case was dismissed 2 years ago. It is a wrongful death suit. It was filed by my father regarding the death of his brother. My father dismissed it due to health problems.

Attorney Answers 5

Posted

As a California plaintiff's attorney representing families in wrongful death caused by alleged medical malpractice/medical negligence, I strongly advise you to contact an attorney ASAP!!! As other attorneys have posted here, if the case was dismissed without prejudice, a new case can be filed against the defendant physician/medical facility. However, there might be very real problems with that newly filed case--regardless of the substantive facts/wrongdoing of the defendants--if the statute of limitations has already expired. California's statute of limitations for medical malpractice/medical negligence is different than the statute of limitations for other personal injury actions. But even if the usual one-year period of time has elapsed, there very well may be legitimate and lawful reasons (for example, due to concealment of the wrongful actions) that the statute of limitations might have been tolled for some period of time., which could save your opportunity to at least have the case heard on the merits. All of these factors, and many more, need to be very carefully evaluated ASAP by a skilled, knowledgeable medical malpractice attorney. Every day that passes without that evaluation makes it more difficult for you to succeed, so I can't stress it enough: get in contact with an attorney right away!

No attorney-client relationship exists based on the interchange of information provided. Please note: An attorney-client relationship cannot exist with Mr. Zamoyski and his law firm unless there is a fully-executed written retainer agreement by attorney and client. Information provided here is not intended to constitute legal advice, but is informational only.

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Peter A. Zamoyski

Peter A. Zamoyski

Posted

As I commented above, California's statute of limitations for medical malpractice suits (Code of Civil Procedure § 340.5) is one year "after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury" or up to three years "after the date of injury," whichever occurs first. Cases cannot be filed more than three years after the date of injury unless "(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person." The rule is different for minors and also depends on the minor's age at the time of the alleged medical malpractice.

Posted

I believe the statute of limitations for a medical malpractice claim in CA is three years, and is two years for a wrongful death claim (I leave it to my CA colleagues to advise if I am correct). The statute of limitations starts to run as of the date of the act of malpractice, with some other circumstances which may affect that computation. Even though dismissed without prejudice, if the applicable statute of limitations has already run, you could be time barred from commencing the action anew. You should meet with a medmal lawyer in your area to go over the specific details of the medmal/wrongful death claims to see where you stand. Good luck.

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Posted

It depends what you mean by "reopened". In the event that a case was dismissed "without prejudice", it may be re-filed at anytime. You simply file a new complaint. However, the statute of limitations (the time you have within which to bring a lawsuit) would be governed by the filing date of the 2nd complaint, not the first. Therefore, if there were a two year statute of limitations that was applicable to the case, whether or not you filed within that period of time would be based upon the date of the filing of the 2nd complaint. If the statute of limitations has run, then your father would need to investigate the possibility of having the dismissal set aside. However, that would be extremely hard or impossible unless he could point to some type of excusable neglect that led him to dismiss the case in the first place. I don't know all of the facts, but proving excusable neglect, or some other basis for having the dismissal set aside would be extremely difficult. I hope that answers your question.

THIS RESPONSE IS NOT LEGAL ADVICE. IT HAS BEEN PROVIDED FOR EDUCATION AND INFORMATION ONLY. Mr. Mann is licensed to practice in the State of California. There is no implied or actual attorney-client relationship arising from this educational exchange. Moreover, the facts provided by you were not sufficient to allow Mr. Mann to advise you specifically regarding what you should or should not do. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Mann is under no obligation to answer subsequent emails or phone calls related to this matter, or to take any action whatsoever.

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Peter A. Zamoyski

Peter A. Zamoyski

Posted

California's statute of limitations for medical malpractice suits (Code of Civil Procedure § 340.5) is one year "after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury" or up to three years "after the date of injury," whichever occurs first. Cases cannot be filed more than three years after the date of injury unless "(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person." The rule is different for minors and also depends on the minor's age at the time of the alleged medical malpractice.

Posted

Check your local statute of limitations. You may be precluded from bringing suit again if the limitations period has expired.

DISCLAIMER: Brandy A. Peeples is licensed to practice law in the State of Maryland. This answer is being provided for informational purposes only and the laws of your jurisdiction may differ. This answer based on general legal principles and is not intended for the purpose of providing specific legal advice or opinions. Under no circumstances does this answer constitute the establishment of an attorney-client relationship. For legal advice relating to your specific situation, I strongly urge you to consult with an attorney in your area. NO COMMUNICATIONS WITH ME ARE TO BE CONSTRUED AS ARISING FROM AN ATTORNEY-CLIENT RELATIONSHIP AND NO ATTORNEY-CLIENT RELATIONSHIP WILL BE ESTABLISHED WITH ME UNLESS I HAVE EXPRESSLY AGREED TO UNDERTAKE YOUR REPRESENTATION, WHICH INCLUDES THE EXECUTION OF A WRITTEN AGREEMENT OF RETAINER.

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Posted

See a local malpractice atty immediately. The suit could be refilled, but there is an issue with the statute of limitations. It may have expired.

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