Kelly on Malpractice

In Walls v. Hillside Hosp., Inc., 2008 WL 275968 (Tenn.Ct.App.), Carla Wall was admitted to Hillside Hospital on December 27, 2003, with a diagnosis of acute multiple sclerosis exacerbation, optic neuritis of the right eye, and severe eye pain. On December 28th, Ms. Wall went into respiratory arrest. She was resuscitated and treated. Ms. Wall was released from the hospital on January 1, 2004. Ms. Wall, her husband, and their daughter came to believe that the respiratory arrest was caused by Ms. Wall being given an incorrect dosage of medicine. The Walls brought suit against Hillside Hospital and the physician staff members alleging that an improper dosage of Dilaudid was administered in the hospital — 30 mgs. rather than 3 mgs. Consequently, they claimed Ms. Wall suffered injuries as a result of medical malpractice during her stay in the hospital.

Hillside Hospital filed a motion for summary judgment, followed shortly thereafter by the filing of a motion for summary judgment by the physician Defendants. Defendants contended that Ms. Wall never received an incorrect dosage, because the paperwork error was caught before the drug was administered. They assert the medical records support the contention that the errant dosage was never administered and note that 30 mgs of Dilaudid would have likely killed Ms. Wall. A summary judgment hearing was initially set for Wednesday August 3, 2005. Prior to the August hearing, however, the parties agreed to reset the hearing and “agreed that the Walls would file their response to the summary judgment motion by August 26, 2005.”
Instead of filing a response to the motions for summary judgment, the Walls filed a notice of voluntarily non-suit on the last date to respond to Defendants’ summary judgment motions, August 26, 2005. In response, Defendants collectively filed a motion to enter an order dismissing the matter with prejudice and granting them summary judgment. Defendants argued that under Rule 41.01 of the Tennessee Rules of Civil Procedure, filing a notice of voluntary dismissal is improper while summary judgment motions from adverse parties are pending. Defendants also noted their prior agreement to two continuances and that the most recent agreement included a provision that summary judgment would be granted if the Plaintiffs did not file responsive briefs by August 26, 2005.

The Walls responded by arguing that whether to allow a non-suit during the pendency of a motion for summary judgment is within the court’s discretion. The Walls offered the following explanation for having non-suited the case:
Plaintiff was forced to take a voluntary non-suit due to the non-cooperation of an expert witness. Plaintiff had contacted Michael Byas-Smith, from Emory University in Georgia to be the Plaintiff expert. However, at the last minute, Dr. Byas-Smith became uncooperative and would not agree to continue to be the expert in this case. Due to the unexpected events, Plaintiff was unable to file the required response to Defendants’ Motions for Summary Judgment. Thus, a nonsuit was the only available avenue left to pursue.

In its order entered on September 30, 2005, the circuit court noted that the Defendants had twice agreed to continuances and also stated that parties had reached an agreement that “required Plaintiffs to file responsive briefs on or before Friday, August 26, 2005 and further stated that if briefs were not filed, the Motions for Summary Judgment would be granted.” Furthermore, the court indicated that “[t]here is nothing in this case to litigate. The entire case would rise or fall on the allegations of negligence by the Defendants resulting in the Plaintiff being injected with 30 mgs of Dilaudid which would probably have killed her. This just did not happen.” Lacking a response from the Plaintiffs to the Defendants’ motions for summary judgment, the circuit court concluded that the facts were undisputed and awarded summary judgment to the Defendants.
Rule 41.01(1) restricts the ability of a plaintiff to voluntarily dismiss an action while an adverse party’s summary judgment motion is pending. When a motion for summary judgment is pending, a plaintiff may not take a voluntary nonsuit to dismiss an action without prejudice by simply filing a notice. However, nothing in the rule precludes a plaintiff from filing a motion requesting that it be allowed to take a non-suit or prohibits the trial court from granting or denying that motion. In the present case, the Walls filed a notice of dismissal rather than a motion to be allowed to take voluntary dismissal without prejudice. This was the first mistake. Nonetheless, the Court of Appeals analyzed the case as if the Walls had filed a motion for voluntary dismissal.

Under a proper set of circumstances, the trial court has the authority to permit a voluntary dismissal, notwithstanding the pendency of a motion for summary judgment. Stewart v. University of Tennessee, 519 S.W.2d 591, 593 (Tenn.1974). It is within the discretion of the trial court to grant or deny a motion for voluntary dismissal, depending upon the circumstances. As a general rule, when the determination is within the court’s discretion, a motion seeking a voluntary dismissal without prejudice should be granted absent legal prejudice to the defendant. The possibility of being subject to a second lawsuit alone is insufficient legal prejudice to bar a voluntary dismissal without prejudice. Courts, however, are not automatically required to permit a plaintiff to voluntarily dismiss his or her case without prejudice. Rather, the question addressed by a court in determining whether to allow a voluntarily dismissal without prejudice is whether the case presents the “proper set of circumstances” for allowing such a dismissal despite a pending summary judgment motion. Stewart v. University of Tennessee, 519 S.W.2d at 593.

The Walls argued on appeal that the trial court abused its discretion by not allowing them to voluntarily dismiss their action without prejudice. A review of the circumstances surrounding the court’s determination led the Court of Appeals to conclude that the trial court did not abuse its discretion. First, the parties had entered into an agreement providing that if the plaintiffs failed to file responsive briefs on or before August 26, 2005, the motions for summary judgment would be granted. The plaintiffs did not file a response to the summary judgment motion by the stated date, and the affidavits and other factual evidence in the record support the Defendants’ motion. The trial court relied on the prior agreement, stating that the Defendants had twice agreed to continuances and that the parties had reached an agreement which “required Plaintiffs to file responsive briefs on or before Friday, August 26, 2005.” The denial of the Walls’ request to voluntarily dismiss their complaint without prejudice was consistent with the prior agreement of the parties and order of the court.

The Walls asserted that the circuit court abused its discretion because their reason for attempting to dismiss their action was their need to find a new expert witness after their previous expert became uncooperative. Tennessee appellate courts have been disinclined to find an abuse of discretion for this reason. See Wishon v. Ear, Nose, & Throat Associates, PC, 2001 WL 1523355 (Tenn.Ct.App.) (concluding that the trial court did not abuse its discretion when the plaintiffs “gave no plausible reason for their need to non-suit, other than obtaining their medical expert and taking testimony”); Lewis v. Brooks, 66 S.W.3d 883, 887 (Tenn.Ct.App.2001) (concluding that the trial court did not abuse its discretion where it denied permission to dismiss without prejudice even though the court had excluded the plaintiff’s expert witness). Simply stated, where a plaintiff has failed to produce an expert to testify in a medical malpractice case and then been denied permission to voluntarily dismiss without prejudice, appellate courts have been disinclined to find an abuse of discretion.

It is significant to note that Walls made no showing that they were likely to find a qualified expert who would provide evidence contradicting the documentary and testimonial evidence. The Walls simply sought leave to search for an expert. The Court of Appeals stated in dicta, “Where plaintiffs fail to make any showing that they are likely to secure expert testimony and the hopes of finding such an expert are merely speculative, a discretionary voluntary dismissal without prejudice may be improper.” It was simply not enough to offer the hope that the Walls would eventually be able to find an expert witness to replace Dr. Byas-Smith. The Walls never explained how they would be able to obtain expert testimony that would be sufficient to raise a dispute of material fact. In summary, the Court of Appeals concluded that the trial court appropriately exercised its discretion in denying the plaintiffs a dismissal without prejudice in light of all the circumstances.

What are the lessons from Walls? First of all, treat a motion for summary judgment with the utmost care and respect as if you were handling a deadly snake. Never file a Notice of Nonsuit in response to a motion for summary judgment. The rule requires a Rule 41.01(1) motion seeking a nonsuit without prejudice. Second, be prepared in advance for the “uncooperative expert” who could bail out on you at the last minute. It is always prudent to retain a second expert even if that expert ultimately does not testify in the case. It only takes one expert in most cases to ward off a motion for summary judgment. Finally, it is prudent to file a Rule 56.07 motion to postpone the summary judgment until discovery is completed. See Conger v. Gowder, 2001 WL 301155 (Tenn.Ct.App.)(reversing the trial for not allowing the plaintiff to take depositions in a medical malpractice action before the motion for summary judgment hearing). This motion requires an affidavit from plaintiff’s counsel. Tactically, this motion makes sense because there is no reason to disclose your expert’s affidavit until you know what the defendants said in their depositions.

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