Nonsuit OK When Motion to Dismiss is Pending – Even in Medical Malpractice Cases

In Clark v. Werther, No. M2014-00844-COA-R3-CV (Tenn. Ct. App. Sept. 27, 2016), the Tennessee Court of Appeals held that nothing about the Health Care Liability Act (HCLA)  certificate of good faith requirement prohibited a plaintiff from taking a TRCP Rule 41 voluntary nonsuit while a motion to dismiss was pending.

Here, a pro se plaintiff filed a health care liability suit against fourteen healthcare providers. When filing his complaint, however, he failed to attach a certificate of good faith as required by Tenn. Code Ann. § 29-26-122. Several of the defendants filed motions to dismiss on this basis. In response, and before any hearing on the motions to dismiss, plaintiff filed a notice of voluntary nonsuit and proposed order. Some of the defendants “opposed [plaintiff’s] notice of nonsuit on the ground that his complaint should be dismissed with prejudice because of the missing certificate of good faith,” as that is the appropriate penalty under the statute. After a hearing, the trial court dismissed without prejudice the claims against the non-objecting defendants, but dismissed with prejudice the claims against the defendants who objected to the nonsuit.

On appeal, the Court noted that Tenn. R. Civ. P. 41.01 governs voluntary nonsuits and precludes a nonsuit in certain situations, including “in a class action case, in a shareholder derivative action, in a case in which a receiver has been appointed, or while an opposing party’s motion for summary judgment is pending,” or “when it would deprive the defendant of some vested right.” (citation omitted). Otherwise, a plaintiff’s ability to take a voluntary nonsuit is “free and unrestricted…before the jury retires.” (citation omitted).

Defendants argued that plaintiff’s “failure to file a certificate preclude[d] his right to a voluntary nonsuit,” but the Court rejected this assertion. The Court pointed out that “[a]lthough compliance with the good faith certificate statute is mandatory, dismissal with prejudice is not automatic.” The Court held that nothing is the statute precludes a plaintiff from taking advantage of the voluntary nonsuit rule, as the “statute does not expressly preclude a plaintiff from taking a voluntary nonsuit and, by its terms, allows a court the discretion to excuse noncompliance under certain circumstances[.]” Accordingly, the Court overturned the dismissals that were entered with prejudice, ruling that all of the dismissals should have been without prejudice.

The Court clearly got this one right. Nothing in the certificate of good faith statute mentions nonsuits, and the statute should thus not be read to impede on this well-established litigation tool.

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