On July 9, 2014, the Court of Appeals of Tennessee issued a written opinion in which it upheld the right of the medical malpractice plaintiff to dismiss without prejudice a defective malpractice case and then re-file the Tennessee medical malpractice case with corrections necessary to comply with the Tennessee Medical Malpractice Act.
The medical malpractice plaintiff was the surviving husband of a woman who allegedly died as a result of medical malpractice. The husband filed his medical malpractice wrongful death action and thereafter filed the required certificate of good faith. However, the certificate of good faith failed to include a statement that the executing party had “zero” violations of the statute.
Just days short of four years after the medical malpractice lawsuit was filed, the medical malpractice Defendants filed motions to dismiss based on the Plaintiff’s failure to comply with Section 29-26-122.5 of the Tennessee Medical Malpractice Act (“In any health care liability action in which expert testimony is required by § 29-26-115, the plaintiff or plaintiff’s counsel shall file a certificate of good faith with the complaint … (d)(4) A certificate of good faith shall disclose the number of prior violations of this section by the executing party”). The Defendants argued that the Plaintiff’s certificate of good faith did not comply with the statute because it did not list the number of prior violations of the statute by the Plaintiff’s counsel (which was “zero”) as required by the version of subsection (d)(4) in effect at that time, and therefore the Plaintiff’s medical malpractice case had to be dismissed.
In response to the Defendants’ motions to dismiss, the Plaintiff filed a notice of voluntary nonsuit without prejudice. The defendants objected to a dismissal without prejudice because, they argued, the trial court must dismiss the case with prejudice if the certificate of good faith does not strictly comply with the statute. The trial court granted the voluntary nonsuit without prejudice, from which the defendants appealed to the Court of Appeals of Tennessee.
In a prior Court of Appeals of Tennessee decision, the plaintiffs did not file a certificate of good faith at all and the defendants filed a motion to dismiss on that basis. Before the motion to dismiss was decided, the plaintiffs filed a notice of voluntary nonsuit and the trial court entered a judgment dismissing the case without prejudice. The defendants argued that, because the dismissal for noncompliance of the statute had to be with prejudice, allowing the plaintiffs to voluntarily dismiss the action without prejudice is contrary to the statutory mandate. The Court of Appeals of Tennessee held in that case that dismissal of the action “with prejudice” based on the language of Section 29-26-122 “is not automatic,” reasoning, “Nothing in the statute operates to prevent a plaintiff from exercising the right to voluntarily dismiss the action without prejudice.”
In the present case, the Court of Appeals of Tennessee held, “nothing in the statute governing certificates of good faith precludes a plaintiff from exercising the “free and unrestricted” right to dismiss an action without prejudice … we find no error in the trial court’s decision to permit the Plaintiff to voluntarily dismiss the case without prejudice under these circumstances.”
Timothy Davis, as Surviving Spouse and Next of Kin of Katherine Michelle Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D., W2013-02514-COA-R3-CV. Click here to read the Court of Appeals of Tennessee opinion.
If you or a loved one were injured as a result of medical malpractice in Tennessee or in another U.S. state, you should promptly seek the legal advice of a Tennessee medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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