A Gordon Rees Scully Mansukhani Las Vegas medical malpractice team of Partner Adam Garth, Senior Counsel Najum Anwar, and Associate Megan Cunnington secured an outright victory on behalf of a long-term care facility via a pre-answer motion to dismiss. Upon receipt of the motion, the plaintiffs agreed to dismiss their case against the facility as well as its employees and agents without any opposition.
In direct contravention of established Nevada legal authority, the plaintiffs attempted to pursue an ordinary negligence case against the facility and its employees instead of one grounded in professional negligence. Professional negligence cases in Nevada have caps on non-economic damages, including pain and suffering, grief, and sorrow. The plaintiffs sought to recast the case as one without a cap on such damages, thereby improperly pleading a wrong cause of action. In so doing, they failed to provide the requisite medical declaration or affidavit substantiating the standard-of-care violations alleged in the complaint.
Nevada law requires dismissal of any professional negligence case that lacks the requisite declaration or affidavit without an opportunity to amend. Additionally, the plaintiffs claimed other causes of action, all of which were either subsumed under a professional negligence cause of action or lacked sufficient factual pleading to substantiate them. As this matter involved a decedent, the plaintiffs were obligated to establish an estate on behalf of the decedent to prosecute any of the estate’s claims, separate and apart from those of the heirs. We discovered that no estate had been established, thus eliminating any claims the plaintiffs would be able to pursue, which were all those for any economic damages or punitive damages, which would have made up the majority of those being claimed in the case.
Given the panoply of procedural defects, the GRSM team recognized them all and moved to dismiss the complaint and, alternatively, to dismiss multiple component parts of the case. After recognizing the multiple procedural errors in which their firm engaged, the plaintiffs’ counsel requested that we agree to dismiss the case with prejudice, on the condition that we not seek costs and attorneys’ fees from the plaintiffs.
The aggressive legal strategy devised and executed by the GRSM team resulted in an early dismissal of the matter at minimal cost to the client. The recognition of procedural errors and incorporating aggressive early motion practice not only saved the client significant resources, but also served to demonstrate to opposing counsel that defective pleading will not be allowed to proceed.