dissenting:
I disagree with the majority’s conclusion that a complaint in a medical malpractice action is void when filed without an expert affidavit. I believe that the majority’s interpretation disregards NRCP 15(a) and also exalts form over substance.
The majority concludes that a complaint that does not comply with NRS 41A.071 is void, and therefore, NRCP 15(a) is inapplicable. I do not interpret NRS 41A.071 in such a manner. Although the Legislature was within its power to enact NRS 41A.071, it must still ensure that its laws do not conflict with our preexisting procedural rules.1 NRS 41A.071 is a statute that governs procedure in medical malpractice cases, and it was enacted after NRCP 15(a), which is a court rule that governs civil procedure. NRS 41A.071 requires dismissal when a plaintiff files an action without a medical expert’s affidavit, while NRCP 15(a) allows that plaintiff to amend her complaint once as a matter of course before a responsive pleading is filed.
Unlike the majority, I interpret NRS 41A.071 and NRCP 15(a) as being in direct conflict, and under our rules of construction, NRCP 15(a) supersedes NRS 41A.071 and controls.2 Accordingly, I conclude that a plaintiff in a medical malpractice case may amend her complaint once as a matter of course before a responsive pleading is filed to comply with NRS 41A.071’s medical expert affidavit requirement.3
I also disagree with the majority’s conclusion because it results in the disposition of cases without a determination on their merits and point out that New Jersey courts have also been concerned *1307with technically rejecting valid claims and have discussed the “draconian results of an inflexible application” of New Jersey’s medical malpractice statutes.4 Those courts conclude that the medical malpractice statutes’ goals of reducing frivolous lawsuits are not advanced by dismissing a meritorious, but technically defective, complaint.5
Additionally, Illinois courts have concluded that, while Illinois’ medical malpractice statutes were enacted to reduce frivolous lawsuits, they were not designed to “burden the plaintiff with insurmountable hurdles prior to filing.”6 Therefore, Illinois courts liberally construe the medical malpractice statutes so that cases will be decided on the merits, and “in a medical malpractice case, a plaintiff should be afforded every reasonable opportunity to establish his case.”7 Thus, the Illinois courts conclude that, although the district court has discretion to dismiss a complaint for failure to include an expert affidavit, permitting the plaintiff to amend her complaint better furthers the statutes’ purpose than would dismissal.8
I conclude that the majority has incorrectly interpreted NRS 41A.071 and not given equal recognition to our own rules of procedure, specifically NRCP 15(a). For this reason, I dissent.
See State v. Dist. Ct., 116 Nev. 953, 959-60, 11 P.3d 1209, 1213 (2000).
Id.
However, I agree with Borger v. District Court, 120 Nev. 1021, 102 P.3d 600 (2004), that a plaintiff may not be granted leave to amend to comply with this requirement because leave to amend is discretionary with the district court, while amendment as a matter of course is not.
Ferreira v. Rancocas Orthopedic, 836 A.2d 779, 783 (N.J. 2003).
Id. at 783-84.
Apa v. Rotman, 680 N.E.2d 801, 804 (Ill. App. Ct. 1997).
Id. The court further stated, “[T]he technical requirements of the statute should not be mechanically applied to deprive a plaintiff of his substantive rights.” Id.
Id. at 804; Common v. West Suburban Hosp. Med. Center, 704 N.E.2d 731, 739 (Ill. App. Ct. 1998).