Statute of Limitations -- Savings Statute and Potential to Refile

Civil Procedure--Savings Statute--Statute of Limitations

Short v. Dewald, 598 Ariz. Adv. Rep. 19 (App. Div. I, December 28, 2010) (J. Hall)

MED MAL ACTION FILED OUTSIDE THE STATUTE OF LIMITATIONS PURSUANT TO RELIEF GRANTED UNDER SAVINGS STATUTE IN PRIOR ACTION WHERE DEFENDANT DID NOT APPEAL THE GRANTING OF RELIEF TO REFILE WAS NOT TIME BARRED, REFILING RESTARTED THE TIME FOR SERVICE OF PROCESS

Plaintiff filed a medical malpractice action against over 40 defendants claiming defendants breached the standard of care when they perforated her uterus and rectum while performing a laparoscopic tubal coagulation. This caused an infection requiring numerous follow up surgeries and permanent injury. Plaintiff had trouble getting all the defendants served and determining which defendants to keep in the case and which to dismiss because she didn't have all the medical records. Many attempts to extend the time to serve were filed and granted until finally the trial court ruled it would dismiss plaintiff's complaint but simultaneously grant plaintiff leave to refile the suit under ARS sec. 12-504(A) Arizona's Savings statute. Plaintiff eventually refiled naming only three defendants. Defendants moved the new trial judge to overturn the prior judges ruling based upon the statute of limitations and abatement which was granted.

The Arizona Court of Appeals reversed holding that the defendants failure to appeal the first trial court's order granting relief under the Savings statute rendered that order final and the issues regarding such relief could not be relitigated in a subsequent action. The new action allowed plaintiff's deadlines for service of process to be reset. To allow the defendants to assert procedural defenses such as the statute of limitations, insufficiency of service of process and abatement would defeat the entire purpose of the Savings statute as well as the first trial court's final order and therefore these defenses were not allowed.