Motion to Dismiss Granted

HPM&B recently obtained pre-answer dismissal, with prejudice, as to a hospital and teaching institution. Plaintiff commenced the medical malpractice action against several defendants as a Proposed Administrator. In her complaint, plaintiff asserted causes of action against our clients for negligence, medical malpractice, exemplary/punitive damages, informed consent, and negligence – right to know. In our motion, we argued that the entire complaint should be dismissed as a legal nullity because plaintiff lacked capacity to sue when she filed the complaint. We also argued that the claims were for medical malpractice, not negligence, and that the applicable statute of limitations was two and a half years making plaintiff’s claims as to the hospital and teaching institution untimely by approximately one month. Therefore, we argued that the dismissal as to these defendants should be with prejudice and plaintiff should not be allowed to re-file the action against them once proper letters of administration are issued. Plaintiff opposed the motion and cross-moved for a stay until letters of administration are granted. The court granted our motion in its entirety and denied plaintiff’s cross-motion.