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Rudd v. Merritt2/26/2003
upon these defendants. The Plaintiffs then timely appealed.
II. ISSUES ON APPEAL
A. Do Idaho Code §§ 6-1005 and 6-1006 toll the six-month period for service of the summons and complaint required by Rule 4(a)(2) of the Idaho Rules of Civil Procedure?
B. Did the Plaintiffs show good cause for failing to serve the summons and complaint upon each of the defendants within six months after the filing of the complaint?
C. Is any party entitled to an award of attorney fees on appeal?
III. ANALYSIS
A. Do Idaho Code §§ 6-1005 and 6-1006 Toll the Six-Month Period for Service of the Summons and Complaint Required by Rule 4(a)(2) of the Idaho Rules of Civil Procedure?
In 1976 the Idaho legislature enacted statutes relating to the prelitigation screening of medical malpractice cases. IDAHO CODE §§ 6-1001 et seq. (1998). One of the declared purposes of the legislation was "to encourage nonlitigation resolution of claims against physicians and hospitals by providing for prelitigation screening of such claims by a hearing panel." Ch. 278, § 1, 1976 Idaho Sess. Laws 953. To accomplish that purpose, the legislation provided that prelitigation screening proceedings were "compulsory as a condition precedent to litigation," IDAHO CODE § 6-1001 (1998), and that "the applicable statute of limitations shall be tolled and not be deemed to run during the time that such a claim is pending before such panel and for thirty (30) days thereafter." IDAHO CODE § 6-1005 (1998). The legislation further provided: "During said thirty (30) day period neither party shall commence or prosecute litigation involving the issues submitted to the panel and the district or other courts having jurisdiction of any pending such claims shall stay proceedings in the interest of the conduct of such proceedings before the panel." IDAHO CODE § 6-1006 (1998). Because the statute of limitations is tolled during the period from the commencement of the prelitigation screening proceedings until thirty days after they are concluded, James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986), a party who claims to have been harmed by medical malpractice need not commence a lawsuit while the prelitigation screening proceedings are pending in order to avoid the running of the statute of limitations.
The Plaintiffs in the instant case chose to file their lawsuit on the same day they commenced the prelitigation screening proceedings. In Moss v. Bjornson, 115 Idaho 165, 765 P.2d 676 (1988), this Court held that a party allegedly harmed by medical malpractice could commence a civil lawsuit before filing a request for a prelitigation screening panel. Idaho Code § 6-1001 does not mandate the dismissal of a medical malpractice lawsuit because it is filed before the commencement of the prelitigation screening proceedings. Once the Plaintiffs filed this lawsuit, however, Rule 4(a)(2) required that they serve the summons and complaint upon the Defendants within six months after the complaint was filed. That rule provides:
If a service of the summons and complaint is not made upon a defendant within six (6) months after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with 14 days notice to such party or upon motion.
The Plaintiffs contend that Idaho Code §§ 6-1005 and 6-1006 tolled the running of the six-month period within which the summons and complaint were required to be served.
Idaho Code § 6-1005 simply provides for the tolling of the st
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