Dismissal of a case with prejudice
When a case is dismissed with prejudice it means that the case cannot be refiled.
Dismissal of a case without prejudice
When a case is dismissed without prejudice it means that the case can be refiled, provided it is refilled before the statute of limitations has run.
The plaintiff may voluntarily dismiss the case to make corrections before refilling.
The plaintiff may voluntarily dismiss the case to refile in a different court (for example dismiss a case from a small claims court to refile in a superior court), refile in a different state, or refile in federal court.
The judge may dismiss the case and this is called involuntary dismissal as it was not plaintiff who dismissed the case.
The judge may dismiss the case if the court does not have power to hear the type of case, ie the court lacks subject matter jurisdiction.
The judge may dismiss the case if the court does not have power over the defendant to make defendant appear in that court, ie the court lacks personal jurisdiction.
The judge may dismiss the case if the location of court chosen by the plaintiff is not proper for the case and it is better for a different court to hear the case, ie the court is an improper venue.
The judge may dismiss the case if the defendant was not properly served with the Summons and a copy of the Complaint or petition ie improper service.
Statute of Limitations
This is the time limit or deadline that a claim or lawsuit must be filed, after which the claim can no longer be filed. This means that the claim can be time-barred if it is not filed within the statute of limitations. The reasons for the statute of limitations is that if the patient has a claim he needs to proceed with the claim with reasonable diligence in a reasonable time. Understandably, memories fade with time, evidence may be destroyed or disappear, witnesses may die, which is the purpose for the statutes of limitations. Some crimes have no statutes of limitations such as murder. In general the statute of limitations depends on the type of claim.
For example in California:
Personal injury the statute of limitations is 2 years from the date of the injury, or if the injury was discovered right away the statute of limitations is 1 year from the date the injury was discovered. This applies to personal injury due to accidents, assault, battery, wrongful death, intentional infliction of emotional distress, negligent infliction of emotional distress, wrongful act, or negligent act.
Medical malpractice suits statutes of limitation is one year from the date the person (plaintiff) knew or should have known about injury or 3 years from the date the injury occurred, whichever date is earlier. In California you must gave a health-care provider 90 days’ notice before filing a claim against the provider.
Breach of a written contract statute of limitations is 4 years from the date the contract was broken.
Breach of oral contract statute of limitations is 2 years from the date the contract was broken.
Property damage claim statute of limitations is 3 years from the date the property damage occurred.
Tolling of the statute of limitations.
There are certain situations in which the statute of limitations is halted or tolled for a period of time before it begins to run again when the particular situation is over, such as if the defendant is in prison, is insane, is minor, or is out of the state. The statute of limitations will begin to run again when the person is out of prison, is no longer insane, has reached the age of majority (age 18 years) or has returned to California.
It is important to note that the dismissal of a case without prejudice does NOT toll the statute of limitations.
What is Personal Injury?
Personal injury (PI) is injury inflicted to a person’s body that is different from injury to personal property or reputation. PI can be due to another person’s negligence, carelessness or recklessness.
PI can create liability for the person who caused your injury and give you the right to be compensated for your injury-related expenses.
Why Hire a Personal injury Lawyer in California?
You can file a Personal injury yourself (also called pro se) but you should know that only a small percentage of people file a case in court without the assistance of a lawyer. While you have a right to represent yourself in court, it is a wise decision to hire an attorney who has the training and experience to represent you in court, rather than you having to face the defendant’s experts and lawyers in court.
Personal injury can be due motor vehicle accident, workplace accident, slip and fall, animal bite, wrongful death, medical malpractice, product liability among others.
The injuries can be physical and or psychological and can include;
Soft tissue injuries such as laceration, torn ligament or tendon, sprain, whip lash, bumps and contusions, open wounds.
Bone injuries can include fractures, dislocation, limb amputation, shortened limb, limping and other gait disturbance.
More severe injuries can include traumatic brain injury and spinal cord trauma leading to memory problems, brain fog, difficulty concentrating, paralysis, muscle weakness, abnormal sensation, dizziness, headaches, difficulty standing or walking, PTSD, anxiety and depression.
While your injuries may be obvious, the legal process can be complex and protracted, taking you away from concentrating on healing and recovering from your injuries.
Medical malpractice include: surgical errors, delay in diagnosis, delay in treatment, laboratory error.
Winning a medical malpractice case can be complicated and involves showing the standard of care that a reasonable doctor would have done, proving that your doctor was negligent and did not follow the standard of care, and this negligence directly caused your injuries or aggravated an existing injury. Medical malpractice cases generally require the testimony of a medical expert.
Your financial recovery can include physical and psychological pain and suffering, medical bills, loss of wages if not able to work while recovering from your injuries and loss of future earnings if the injury is permanent.
Your case may go through the court process or through arbitration or a negotiated settlement, which can all be complex processes and procedures.
This is why you should have an attorney working for you. The best possible scenario is where your lawyer is also a doctor and can make these processes and procedures easier for you to understand and follow, and can fight harder for you.
Ivy-Joan Madu is an attorney licensed in California, and is also a medical doctor. Attorney Madu is objective and will tell you whether you have a valid case or not.
Reach out to Dr. Madu and she will use both her medical experience and legal training to assist you with your claim.
Your no-obligation initial consultation is free and if your claim has merit, we at The Madu Law Firm will protect your rights and interests.
What is Wrongful death
In a civil case for wrongful death, the persons who can file suit are the decedent’s survivors including decedent’s surviving spouse/domestic partner, decedent’s surviving children, surviving grandchildren of any deceased children of the decedent. If none of these survive the decedent, the suit can be brought by anyone entitled by intestate succession to get the property of the decedent, such as the decedent’s parents or siblings and other persons as specified in the California Code of Civil Procedure below.
In a civil case for wrongful death, the recovery or damages is financial or economic compensation as opposed to punitive damages for criminal prosecution for wrongful death.
The statute of limitations for filing civil case for wrongful death is two years, with some exceptions, e.g. 3 years for medical malpractice, 6 months if against a government or public agency.
California Code of Civil Procedure 377.60 CCP statute on Wrongful Death reads as follows:
337.60 A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:
(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.
(b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.
(2) As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.
(d) This section applies to any cause of action arising on or after January 1, 1993.
(e) The addition of this section by Chapter 178 of the Statutes of 1992 was not intended to adversely affect the standing of any party having standing under prior law, and the standing of parties governed by that version of this section as added by Chapter 178 of the Statutes of 1992 shall be the same as specified herein as amended by Chapter 563 of the Statutes of 1996.
(f) (1) For the purpose of this section, “domestic partner” means a person who, at the time of the decedent’s death, was the domestic partner of the decedent in a registered domestic partnership established in accordance with subdivision (b) of Section 297 of the Family Code.
(2) Notwithstanding paragraph (1), for a death occurring prior to January 1, 2002, a person may maintain a cause of action pursuant to this section as a domestic partner of the decedent by establishing the factors listed in paragraphs (1) to (6), inclusive, of subdivision (b) of Section 297 of the Family Code, as it read pursuant to Section 3 of Chapter 893 of the Statutes of 2001, prior to its becoming inoperative on January 1, 2005.
(3) The amendments made to this subdivision during the 2003–04 Regular Session of the Legislature are not intended to revive any cause of action that has been fully and finally adjudicated by the courts, or that has been settled, or as to which the applicable limitations period has run.