Day on Torts
In Hurley v. Pickens, No. E2015-02089-COA-R3-CV (Tenn. Ct. App. Sept. 29, 2016), the Court of Appeals once again held that a plaintiff in a medical malpractice case can take a voluntary nonsuit without prejudice while a motion to dismiss based on an insufficient certificate of good faith is pending.
This opinion was very similar to Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016) and discussed in this Day on Torts post, which came out just two days prior to the instant matter. In Clark, though, plaintiff was pro se and had failed to attach a certificate of good faith to his complaint. Here, plaintiff was represented by counsel and had attached a certificate of good faith, but defendants alleged the certificate was deficient and filed motions to dismiss accordingly.
While the motions to dismiss were pending, plaintiff filed a corrected certificate of good faith, a motion for extension of time to file a corrected certificate of good faith, and a motion for and notice of voluntary dismissal without prejudice. At a hearing on all of the pending motions, and before any argument on the motions to dismiss, plaintiff “announced that he wanted to take a voluntary dismissal pursuant to Tenn. R. Civ. P. 41,” which the trial court allowed. Defendants appealed the dismissal without prejudice, and the Court of Appeals affirmed.
Defendants essentially argued that the Certificate of Good Faith Statute, Tenn. Code Ann. Section 29-26-122, required that a complaint filed with a deficient certificate be dismissed with prejudice. The Court of Appeals disagreed, quoting extensively from prior case law that stated that the Court did not “construe Tenn. Code Ann. Section 29-26-122 as imposing an exception or limitation on the right of plaintiff to voluntarily dismiss an action without prejudice under Rule 41.01.” (internal citation omitted). The Court noted that “[w]hile the requirements to file and prosecute a medical malpractice suit are rigorous, nothing in the legislative history or the statute itself reveals an intent that medical malpractice cases should not proceed in accordance with the rules applicable to all actions, including Tenn. R. Civ. P. 41.” (internal citation omitted). Ultimately, the Court held that “nothing in Tenn. Code Ann. Section 29-26-122 prevented the Plaintiff from taking, and the Trial Court from granting, a voluntary dismissal without prejudice pursuant to Tenn. R. Civ. P. 41.01 while Defendants’ motion to dismiss was pending.”
Like Clark v. Werther, the Court correctly analyzed this case. With all the opinions on this issue, it is now well-established that a motion to dismiss based on an alleged certificate of good faith violation does not affect a plaintiff’s right to nonsuit his or her action