Day on Torts
If a health care liability defendant moves to dismiss based on the failure to file a sufficient certificate of good faith, can the plaintiff nonsuit before the trial court rules on the motion? Davis v. Ibach, W2013-02514-COA-R3-CV (Tenn. Ct. App. July 9, 2014) is the latest opinion that says the answer is yes. Based on the various cases in which the question has been raised, it looks like the answer is “yes” in just about any circumstances:
– Where the plaintiff files a certificate of good faith but it is allegedly deficient. (Davis)
– Where the plaintiff fails to file a certificate of good faith at all. (Robles v. Vanderbilt University Medical Center, M2010-01771-COA-R3-CV, 2011 WL 1532069 (Tenn. Ct. App. Apr. 19, 2011))
– Under the 2008 version of Tenn. Code Ann. § 29-26-121, which required a certificate of good faith within 90 days of filing the complaint. (Davis)
– Under the 2009 to present version of Tenn. Code Ann. § 29-26-122, which requires a certificate of good faith at the same time the complaint is filed. (Robles )
– Where the plaintiff files the notice of voluntary dismissal before any hearing on the motion to dismiss. (Robles)
– Where the plaintiff files the notice of voluntary dismissal after the hearing on the motion to dismiss, but before the trial court announces or enters an order on the motion. (Davis)
Moreover, in Stovall v. UHS of Lakeside, LLC, No. W2013-01504-COA-R9-CV, 2014 WL 2155345 (Tenn. Ct. App. Apr. 22, 2014), the Court of Appeals also upheld a trial court’s denial of a motion to dismiss with prejudice. In Stovall, the trial court held a hearing and orally announced a ruling granting the motion to dismiss with prejudice. Before the written order was entered, the plaintiff filed a motion asking for an extension to file a revised certificate of good faith to comply with the statute. The trial court reversed its prior ruling and denied the defendant’s motion to dismiss, while granting the plaintiff’s motion for an extension. The Court of Appeals affirmed that approach as well.