ACTION
DISMISSED AND REFILED BARRED BY STATUTE
In Thomas v. Gilliland (2002) 02 CDOS 616, an
attorney filed a medical malpractice action against a physician. Evidently
as a result of a conflict in the attorney’s trial schedule, the attorney
dismissed the action without prejudice and immediately re-filed the
action. The physician demurred to the new action because the action was
not filed within one year of the date of injury and was barred by the
statute of limitations.
The court held that the action was barred by the
statute. The court rejected the attorney’s argument that the first lawsuit
was filed in a timely manner and that the statute was tolled while the
first lawsuit was pending.
