Nevada statute NRS 41A.071 requires that a complaint for medical malpractice be accompanied by an affidavit prepared by a medical expert: "If an action for medical malpractice or dental malpractice is filed in the district court, the district court shall dismiss the action, without prejudice, if the action is filed without an affidavit, supporting the allegations contained in the action, submitted by a medical expert who practices or has practiced in an area that is substantially similar to the type of practice engaged in at the time of the alleged malpractice.
Without such an affidavit, the claim is void ab initio and fails.
In Fierle v. Perez, 125 Nev. Adv. Op. No. 54 (November 19, 2009), the Nevada Supreme Court held that NRS 41A.071’s requirement applies to medical malpractice actions filed against a defendant professional medical corporation, as opposed to a defendant physician.
The Court also held that NRS 41A.071 applies to professional negligence actions against providers of health care, including nurses and nurse practitioners.
The Complaint contained claims for res ipsa loquitor, which are an exception to the requirements of 41A.071 and which do not require an affidavit to survive. The Court held that those claims survived.
The Court then tackled the issue of whether the Plaintiff’s amended complaint, containing an affidavit, could relate back to the original complaint and therefore cure the original complaint’s defect. The Nevada Supreme Court had previously held that when a complaint is void ab initio for lack of affidavit, it cannot be cured by an amended complaint. However, the Plaintiffs here argued that the surviving claims saved the entire complaint from dismissal, such that the defective claims could be cured by an amended complaint. The Court rejected this argument, holding that "an amended complaint may not relate back to a complaint that lacked a required medical expert affidavit, but contained some claims that do not require a medical affidavit, thereby making the entire complaint valid."
Steve is the Managing Shareholder of Steven J. Klearman & Associates, a civil litigation law firm located in Reno, Nevada. He practices primarily in the areas of civil litigation and injury law, and has authored one of the definitive guides to Nevada civil law that is widely used by Nevada judges and attorneys, his book entitled Elements of Nevada Legal Theories.