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Does dismissal "without prejudice" always permit new suit?


COMMENCINGIN MARCH OF 2001 AND CONTINUING ALL THROUGH 2001, TARA THOMPSON SUBMITTED HERSELF TO THE EXCLUSIVE CARE OF OHIO STATE UNIVERSITY HOSPITAL FOR THE TREATMENT OF MORBID OBESITY. On or about March 26, 2001, she underwent a Roux-en-Y gastric bypass operation and umbilical hernia repair. Surgery was performed at the hospital by Dr. Charles Cook. On or about April 2, 2001, May 2, 2001, May 29, 2001, June 1, 2001, June 28, 2001, and July 10, 2001, Tara was readmitted to the hospital for extreme nausea and vomiting, during which time she was experiencing additional complications and symptoms, including, but not limited, to progressive weakness, decreasing sensation bilaterally in her legs and a decreasing ability to ambulate, which eventually resulted in her becoming a paraplegic. Tara brought suit against the hospital. In February 2006, the patient served a request for production of documents on the hospital and a set of interrogatories. The hospital failed to produce the requested documents. After some discussion between opposing counsel and the attorneys for both the patient and the hospital, there was some suggestion that the case might be dismissed "without prejudice" (i.e. that the ease would be dismissed without any impediment to the plaintiff filing a new suit against the hospital). However, the parties proceeded until the trial judge ordered patient's case dismissed "without prejudice." The patient appealed. The patient asked the appellate court to conclude that the trial court's order dismissing the patient's case "without prejudice" was not a final appealable order, and in that regard, the patient asked the appellate court to allow her to refile her medical malpractice suit against the hospital. Ordinarily, an order of dismissal of a case "operates as an adjudication otherwise than on the merits" with no res judicata bar to refiling the suit. In addition, generally, a dismissal without prejudice is not a final appealable order, so long as a party may refile or amend a complaint. However, under certain circumstances, a party may be precluded from refiling a lawsuit even though the lawsuit had been previously dismissed "without prejudice." The patient was determined to appeal the order of the court dismissing her case because she believed the dismissal was "without prejudice."

THE COURT OF APPEALS OF OHIO AFFIRMED THE JUDGMENT OF THE TRIAL COURT IN FAVOR OF THE HOSPITAL. The court held, inter alia, that the statute of limitations precluded the patient from filing or refiling. This was so in spite of the fact that the order of dismissal was without prejudice. The court decided that it could not interfere with the state's statute of limitations. Further, the court decided that although the trial judge may not have intended such a result, the patient was, in fact, precluded from filing or refiling her suit. The court pointed out that neither the trial court nor the appellate court had the authority to extend the statute of limitations beyond that set forth in state law. Accordingly, the court concluded that the order of dismissal was not subject to reversal since the statute of limitations had run and the court could not ignore the state statute of limitations.

HOWEVER, A STRONG DISSENTING OPINION WAS FILED. The dissenting judge noted that the trial judge clearly did not contemplate barring the patient from refiling her medical malpractice suit when it dismissed her lawsuit "without prejudice." The dissenting judge indicated that, in his opinion, the trial judge was aware of the potential problem. The dissenting judge opined that we were left to speculate about whether the trial judge would have dismissed the lawsuit "without prejudice" in the first place, if he had the slightest thought that the dismissal would result in a final and irreversible outcome of the patient's suit without regard to the merits of the case itself. The dissenting judge noted that "Fairness" was explicitly mentioned by the trial judge as a consideration with respect to the granting of the dismissal of the case. Since the dismissal had the effect of being with prejudice, the dissenting judge concluded that the appellate court had the responsibility to evaluate the case as if the trial court had dismissed the case with prejudice. Given that frame of reference, the dissenting judge stated that he would sustain the patient's assignment of error, noting that the patient had difficulty in acquiring experts but did ultimately acquire the necessary experts to support her claim for medical negligence. The record revealed that the appropriate reports were provided. The dissenting judge concluded that it was an abuse of discretion to dismiss the lawsuit. Thompson v. Ohio State Hospital, 2007 Ohio 4668 -OH

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throught the United States. In addtion to his writings as Editor or Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:medical malpractice
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Geographic Code:1USA
Date:Sep 1, 2007
Previous Article:Limitations starts to run when pt. 'knows' or 'should know'.
Next Article:Summary judgment for intentional infliction of emotional harm.

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