Washington v. Nelson

This is an action for wrongful death based on medical malpractice. (Code Civ. Proc., §§ 377, 340.5.) It was commenced by Noella Griffith, the widow of the decedent Robert Griffith, who alleged in her complaint that she was the sole surviving heir. (Code Civ. Proc., § 377.) Subsequently, the court permitted a first amended complaint to be filed, naming appellant Dwayne K. Washington, a minor, as an additional heir and party plaintiff. However, the court then "granted defendants’ motion that the cause be dismissed as to appellant Washington pursuant to Code of Civil Procedure section 581a, subdivision (a), for failure to serve the summons on the complaint within three years of the commencement of the action. Washington appeals from the order of dismissal.

The decedent died on July 19, 1973, following a period of treatment and medication given by defendants. The widow filed this action for wrongful death on July 15, 1974, and there is no question that she timely filed and served the complaint. An at-issue memorandum was filed August 3, 1976.

On April 20, 1977, plaintiff moved for leave to file a first amended complaint naming appellant Washington as an additional heir and…