Court of Appeals Addresses Nonsuits in Healthcare Liability Actions (Again—-and Again!)
This fall, two opinions, issued two days apart and from different sections of the Tennessee Court of Appeals, have explored the same essential question: should a plaintiff in a health care liability action be permitted to voluntarily dismiss his lawsuit without prejudice in the face of a motion to dismiss arising from an inadequate certificate of good faith?
Since the advent of the complex procedural and administrative burdens that must be met before an injured person can file suit for medical malpractice, it seems like many otherwise meritorious cases have been shut out of the courts because of technicalities. The doctors and hospitals have also adopted the position that injured persons suing under the healthcare liability laws should, in addition to the administrative burdens provided by statute, be denied the ability to dismiss a pending suit and refile, a right to which other litigants in the state are entitled.
In 2011, the Tennessee Court of Appeals determined that the injured persons should not be denied the same rights that other persons in a lawsuit have, and, in the case of Robles v. Vanderbilt University Medical Center, upheld a medmal plaintiff’s right to nonsuit in the face of a motion to dismiss. With the Courts’ recent decisions, this right has been reaffirmed.
In the case of Clark v. Werther, the pro se plaintiff filed a health care liability action against fourteen various defendants without attaching a certificate of good faith. Several of the defendants filed motions to dismiss. Plaintiff then filed a notice of voluntary nonsuit. Some defendants objected to the voluntary dismissal arguing that the complaint should be dismissed with prejudice. For those objecting defendants, the trial court dismissed the complaint with prejudice. As to the defendants who had not registered objections, the trial court dismissed the complaint without prejudice. Plaintiff appealed.
In Hurley v. Pickens, plaintiff filed a health care liability action, but failed to fully comply with Tenn. Code Ann. § 29-26-122 regarding the certificate of good faith requirement. Defendants filed motions to dismiss. At the hearing on these motions, plaintiff announced he wanted to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41. The trial court heard argument as to whether the dismissal should be with or without prejudice and ultimately entered the voluntary dismissal without prejudice. Defendants appealed.
In both cases, the defendants argued that the certificate of good faith statute mandated a dismissal with prejudice. In particular, defendants pointed to the section of Tenn. Code Ann. § 29-26-122 providing that the “failure of a plaintiff to file a certificate of good faith in compliance with this section shall, upon motion, make the action subject to dismissal with prejudice.”
The different sections of the Court of Appeals came to the same conclusion in favor of the plaintiffs: that the voluntary dismissal without prejudice should be entered. The analysis in both cases was similar.
The Courts focused on the interpretation of Tenn. R. Civ. P. 41.01. Reading the rule and examining relevant case law, both courts observed that the right of a plaintiff to nonsuit his or her case is an absolute right, limited only by very few circumscribed exceptions. Those exceptions as to when a voluntary nonsuit will not be entered include (1) in a shareholder’s derivative action; (2) in a case where a receiver has been appointed; (3) when an opposing party’s motion for summary judgment is pending; and (4) in instances when a nonsuit would deprive the defendant of some vested right. Both Courts concluded that none of these exceptions applied.
In addition, the Court took the opportunity to observe that nothing in the health care liability statute precluded entry of a nonsuit when the certificate of good faith did not comply with Tenn. Code Ann. § 29-26-122. Therefore, both courts concluded that the plaintiffs’ nonsuits should be entered.
In the Clark case, the dismissals with prejudice were reversed. And, in the Hurley case, the order granting plaintiff’s voluntary dismissal was affirmed.
While Robles, Clark, and Hurley are encouraging insofar as they emphasize a plaintiff’s absolute right to nonsuit, caution should abound when nonsuiting a healthcare liability action. Though a plaintiff can dismiss the suit and then theoretically refile a health care liability lawsuit, the plaintiff has numerous other exacting considerations upon refiling, including the statute of limitations, statute of repose, and the pre-suit notice requirements. In other words, your nonsuit dismissal without prejudice may still result in your being unable to refile your case on the merits. It is a better approach for sure to try to get the lawsuit off on the right foot from the very beginning.