Can Savings Statutes Cure the Failure to Attach a Medical Malpractice Affidavit to a Complaint?
By Micah S. Echols

Since the enactment of Nevada Revised Statutes (NRS) Section 41A.071 in 2002, medical malpractice actions must be supported by an affidavit of a medical expert, with very narrow exceptions. The language of this statute provides that the action shall be dismissed without prejudice “if the action is filed without an affidavit, supporting the allegations contained in the action. . . .” The motivating policy behind this statute is to reduce frivolous filings against medical professionals. The Nevada Supreme Court has interpreted the language of this statute very literally and requires a complaint to be dismissed if the medical malpractice affidavit is not physically attached to the complaint. Washoe Med. Ctr. v. Dist. Court, 122 Nev. 1298, 148 P.3d 790 (2006). In fact, an amended complaint or errata to the complaint is insufficient to cure the failure to attach a medical malpractice affidavit.

Although the interpretation of this statute may seem harsh, the express provision requires only dismissal without prejudice. In practice, however, the defendants in a medical malpractice action simply wait until the applicable statute of limitations runs so that the dismissal without prejudice has the effect of a dismissal with prejudice. In this context, the dismissal with prejudice seems to go beyond the underlying policy of deterring frivolous lawsuits against medical professionals. The question arises whether there is any relief from dismissal based upon NRS 41A.071 after the applicable statute of limitations has run.

Section 11.500 of NRS, which is known as a savings statute, may provide some relief for parties that have a complaint dismissed without prejudice for failure to attach a medical malpractice affidavit, but the dismissal is actually treated as one with prejudice. The language of this statute allows an action to be “recommenced” within 90 days after dismissal if the complaint is dismissed for lack of subject matter jurisdiction. Notably, the statute has general application and does not contain limits on the types of complaints that can be recommenced when the complaint was first filed within the applicable statute of limitations. The underlying policy of this savings statute is to allow cases to be decided on their merits. So it appears that the dismissal of a medical malpractice complaint can be refiled according to the terms of NRS 11.500 if done so within 90 days following dismissal. This article discusses and compares the underlying policies of both NRS 41A.071 and NRS 11.500 to provide guidelines on whether the savings statute can cure the failure to attach a medical malpractice affidavit to a complaint.

The interpretation and underlying policies of NRS 41A.071
The plain language of NRS 41A.071 states: “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. . . .” In ruling that NRCP 15 does not permit an amended complaint to cure the failure to attach a medical malpractice affidavit, the Nevada Supreme Court made various observations regarding the purpose and policies underlying NRS 41A.071.

Although not expressly stated in the statute, the supreme court in Washoe Medical Center concluded that a complaint filed without an attached affidavit is void ab initio, meaning that the complaint does not legally exist. This notion of a complaint being void is taken from the former procedure requiring medical malpractice cases to be submitted to a screening panel before filing in the district court. In the former procedure, a complaint filed in the district court prior to being submitted to the screening panel was “subject to dismissal” but not void ab initio. However, the current language of NRS 41A.071 does not contain the phrase “subject to dismissal” but instead uses “shall dismiss.” In reviewing the legislative history of NRS 41A.071, the supreme court also noted that the purpose of abolishing the screening panel and requiring a medical malpractice affidavit was to lower costs, reduce frivolous lawsuits, and ensure that medical malpractice actions are filed in good faith based upon competent expert medical opinion.

At the time Washoe Medical Center was decided, it was not fully embraced by all the members of the Nevada Supreme Court, as four of the seven justices dissented from the majority opinion. The two separate dissenting opinions pointed out that by not reading NRCP 15 to allow a subsequent attachment to a defective complaint would simply exalt form over substance. Additionally, the dissenting opinions claimed that it was simply unfair to deprive meritorious lawsuits from being heard based upon technically deficient complaints. Finally, the dissenting justices also pointed out that nothing in the plain language of the statute requires a defective complaint be treated as void, as opposed to voidable, such that a later affidavit should be allowed.

While the members of the supreme court did not completely agree upon the interpretation of NRS 41A.071, Washoe Medical Center is good law today, even though it has been challenged on a variety of different nuances. Moreover, the application of savings statutes to the medical malpractice affidavit requirement of NRS 41A.017 does not require Washoe Medical Center to be overruled. Instead, NRS 11.500 concedes that dismissal must take place. Since dismissal under NRS 41A.071 was only designed to be without prejudice, NRS 11.500 allows the possibility of a medical malpractice lawsuit to be refiled so that the merits of the case can still be addressed.

The interpretation and underlying policies of NRS 11.500
Section 11.500 of NRS states that if an action is commenced within the applicable period of limitations, a dismissal for lack of subject matter jurisdiction can be recommenced within the applicable period of limitations or 90 days after the action is dismissed, whichever is later. Unfortunately, since the time this statute was enacted in 2003, the Nevada Supreme Court has not yet had an opportunity to apply it to a particular set of facts.

In California, courts have upheld the validity of similar savings statutes when the merits of the case have not yet been addressed. See, e.g., Schneider v. Schimmels, 256 Cal. App. 2d 366, 64 Cal. Rptr. 273 (1967); Bollinger v. Nat’l Fire Ins. Co., 25 Cal.2d 399, 154 P.2d 399 (1944). The important component from these cases that is also reflected in NRS 11.500 is that a case must be dismissed for some procedural defect amounting to a lack of subject matter jurisdiction. Otherwise, a plaintiff could refile a substantively-defective complaint a second time after already being heard on the merits. The plain language of NRS 11.500 also permits only one refiling of a complaint so as to not abuse the savings statute. The underlying policy of NRS 11.500 focuses upon the concerns of the justices who dissented in Washoe Medical Center—that a meritorious lawsuit should not be dismissed based upon a curable technical deficiency before even having a chance to be heard. Because NRS 41A.071 was enacted to prevent frivolous filings against medical professionals, NRS 11.500 does not operate to save all improper filings. Instead, the saving nature of NRS 11.500 focuses only upon those meritorious cases in which expert medical testimony actually supports the complaint for medical malpractice, but the affidavit was inadvertently not physically attached to the complaint. That way, by applying this savings statute, the underlying policies of NRS 41A.071 would not be offended. Yet, the NRS 41A.071 requirement of a dismissal without prejudice would not become unfairly overbroad by imposing a dismissal with prejudice in a large number of cases. Section 41A.071 of NRS serves an important policy of streamlining complaints against medical professionals. However, because of the requirement to attach a medical malpractice affidavit to these types of complaints, some meritorious cases are dismissed with prejudice based upon the timing and placement of the supporting affidavit, even though the statute only calls for dismissal without prejudice.

Section 11.500 of NRS also serves an important policy to allow technically-deficient complaints to be refiled within 90 days under a given set of circumstances. By applying this savings statute to medical malpractice cases that are meritorious, there may be relief in the harshness of dismissal with prejudice for only failing to attach a medical malpractice affidavit to the complaint.

Micah S. Echols is an attorney at Marquis & Aurbach in Las Vegas and can be reached at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or (702) 207-6087. Mr. Echols focuses his practice on commercial litigation and civil appeals.

With certain amendments to the Medicare Secondary Payer Statute (MSP) going into effect on October 1, 2010, settlements involving Medicare beneficiaries will be more difficult to navigate. On December 29, 2007, President George W. Bush signed into law the Medicare, Medicaid and SCHIP Extension Act of 2007, Public Law No. 110-173 (MMSEA), adding additional enforcement options to the MSP. The MSP authorizes the Medicare program, under certain instances, to make a conditional payment for the beneficiary’s medical care when payment by a liability insurance, no-fault insurance, or worker’s compensation plan does not occur “promptly.” However, those payments are then subject to reimbursement once it has been demonstrated that the primary plan has or had responsibility for the payment. The United States may initiate recovery of Medicare conditional payments when it learns the payment “had been or could be made.” 42 C.F.R. § 411.24(b). Section 111 of the 2007 amendments added mandatory reporting requirements with respect to Medicare beneficiaries who receive a settlement, judgment, award, or other type of payment from these plans.

With these changes, legal counsel handling claims involving Medicare beneficiaries now have a heightened obligation to assist their clients or carriers in determining the Medicare enrollment status of plaintiffs/claimants and to handle settlements or payments to Medicare beneficiaries appropriately. Private business and insurance providers are now routinely placing their legal counsel on notice of the mandatory reporting requirements and demanding specific language or protocols in settlement agreements in liability cases that serves as a precondition to settlement payment. For example, certain business and insurer clients are demanding that settlement agreements include language comparable to the following:

This settlement is based upon a good faith determination of the parties to resolve a disputed claim. The parties have not shifted responsibility of medical treatment to Medicare in contravention of 42 U.S.C. § 1395y(b). The parties resolved this matter in compliance with both state and federal law. A careful and thorough analysis of the legislation, the applicable section 111 mandatory reporting user guide, and accompanying reporting requirements is essential to avoid downstream risk arising from non-reported or non-compliant settlements and payments. Legal counsel must be familiar with the reporting requirements of section 111 of the MMSEA, as well as the reimbursement requirements, and take affirmative steps to properly report and document settlements and payments involving Medicare beneficiaries. However, the following provides a broad overview of the issues that counsel now face.

Obtaining conditional payment information
If Medicare makes conditional payments on behalf of a party to a claim or litigation, information about that conditional payment will be critical in evaluating or reaching any settlement or payments. For instance, a case that is valued at $10,000 may look very different if Medicare has made a conditional payment of $20,000 and there is a possibility that it may seek to recover that entire amount. Legal counsel may obtain conditional payment information under a six step process: Is your plaintiff/claimant a Medicare beneficiary? Typically, a plaintiff/claimant who is 65 years of age or over will be a Medicare beneficiary. However, a Medicare beneficiary can also be someone who has certain disabilities or end stage renal disease. You can also obtain plaintiff/claimant’s health information claim number. If you have the plaintiff/claimant’s social security number, a call can be made to Medicare’s Coordination of Benefits Contractor (COBC) at 1 (800) 999-1118. Notify the COBC of the claim, which may be made by phone or in writing, and coordinate with other parties in doing so. You must provide the plaintiff/claimant’s full name, Medicare number and/or social security number, date of accident, description of injury and ICD-9 code(s), name/addresses of the primary payer, and plaintiff/claimant’s legal representative. The COBC will then notify the Medicare Secondary Payer Recovery Contractor (MSPRC) of the claim.

MSPRC will issue a rights and responsibilities letter to the Medicare beneficiary. Within 65 days of the date of the rights and responsibilities letter, MSPRC will issue a conditional payment letter to the Medicare beneficiary and any authorized parties. Because MSPRC only issues the letter to authorized parties, you must ensure that the appropriate authorization form has been submitted (i.e., “proof of representation” or “consent to release”). This is an interim conditional payment demand, and should contain a detailed list of the claims that had been paid by Medicare. Once the conditional payment letter has been issued, counsel for plaintiff/claimant will typically negotiate which payments are related to the injuries in the case in an effort to adjust or reduce the claims of injuries and/or the amount of the lien. Counsel should review the listing of the claim services for accuracy (i.e., check for double billing, correct service dates, consistency between type of injury and claim, or other possible grounds to challenge Medicare’s claimed services). Medical reports and independent medical examination letter reports detailing pre-existing conditions may be useful in negotiating the lien amount.

The final executed settlement agreement must be sent to the MSPRC before final conditional payments are made. MSPRC will issue a “final demand,” which requires payment within 60 days. If payment is not tendered within 60 days, interest may be assessed from the date of the final demand letter, and the matter may be subject to an official collection action if no payment is received within 120 days.

Mandatory reporting requirements
The mandatory reporting requirements under section 111 of MMSEA will ensure that Medicare is made aware of all settlements and payments to Medicare beneficiaries so that it can seek reimbursement for any conditional payments. The mandatory reporting requirements fall on a variety of potential parties. An entity is generally considered a responsible reporting entity (RRE) if it funds and pays for a settlement, judgment, award, or payment to a Medicare beneficiary. RREs that are required to comply include liability insurance plans, self-insured entities, no-fault insurance plans, and workers compensation plans. The reporting requirements include providing information relating to the Medicare beneficiary, all claimants who are non-Medicare beneficiaries, legal representatives of the beneficiaries and claimants, and ongoing responsibilities for medicals, as well as the amount of the settlement, judgment, award, or other payment or total payment obligation to the claimant. At the moment, there are interim reporting thresholds for certain RREs and certain types of payments. Counsel working with liability insurance plans, self-insured entities, no-fault insurance plans, and workers compensation plans should review the applicable section 111 mandatory reporting user guide to determine whether any of the interim thresholds apply and whether the settlement or payment in their case is exempt from reporting at this time.

Penalties for non-compliance
The penalties for non-compliance with the section 111 reporting requirements or the reimbursement requirements are severe. On the reporting front, the statute provides for a civil penalty of $1,000 for each day of non-compliance. On the reimbursement front, there are civil enforcement actions and the possibility of double damages.

Each of the steps outlined above requires a careful review and analysis of the published regulations, statutes, and user guides. Such an analysis is outside of the scope of this article. For the purposes of counsel involved in litigation or claims negotiation/resolution with eligible parties, the critical obligation is to consider the parties to the claims and suits and exercise due diligence when counsel suspects that Medicare payments may be involved. The consequences of failing to comply with these regulations could result in a true settlement hangover to both counsel and clients.

Nicholas M. Wieczorek is a partner in the Las Vegas office of Morris Polich & Purdy, LLP and represents clients in diverse practice areas including professional liability, medical device products liability, and civil litigation. Eugenia L. Liu is a partner in the firm’s Los Angeles office and emphasizes her practice in the long-term care area.