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News/Case Decisions

Medical Malpractice Complaint Affidavit Must be Liberally Construed

In a rare legal victory for the victims of medical malpractice, the Nevada Supreme Court held that the required expert affidavit for medical malpractice complaints need not independently list every fact or defendant medical provider to a lawsuit. The NRS 41A.071 affidavit should be read together with the plaintiff’s complaint, and the trial court should only dismiss claims which are clearly frivolous. This result is more in line with Nevada’s notice-pleading standard and jurisprudence that allegations within complaints should be liberally construed in favor of the non-moving party upon NRCP 12 motion to dismiss.

Part of the reasoning rested on the fact that at the motion to dismiss stage of the proceedings little, if any, formal discovery has occurred and any stricter requirement would disadvantage plaintiffs where medical providers hold all necessary information about negligent actors, such as hospital staff members.

The full opinion of Zoher v. Zbiegien, 130 Nev. Adv. Op. 74 (2014) can be read here:

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