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Joint Dismissal Renders §5-119(b) “Savings Provision” Unavailable
Wilcox v. Orellano
In Wilcox v. Orellano, the Court of Special Appeals of Maryland held that a joint stipulation of dismissal signed by both parties in a medical malpractice case amounted to “a voluntary dismissal ... by the party who commenced the action or claim” under § 5-119(a) of the Maryland Courts and Judicial Proceedings Article. The Court of Special Appeals affirmed the ruling of the Circuit Court for Prince George's County that the plaintiff, having “voluntarily dismissed” her action, was not entitled to re-file her claim as that claim was now barred by the relevant statute of limitations. Judge Krauser wrote the opinion, in which Judges Wright and White joined.
By way of factual background, after undergoing a lumpectomy performed by Dr. Tristan Orellano, Lydia Wilcox developed an infection at the site of the surgery which eventually required the surgical removal of her right breast. Ms. Wilcox filed a medical malpractice claim with the Health Care Alternative Dispute Resolution Office against Dr. Orellano, together with a certificate of a qualified expert. Unfortunately, Ms. Wilcox failed to attach a report of an attesting expert to the certificate, as required by § 3–2A–04(b) of Maryland’s Health Care Malpractice Claims Statute, and never sought to correct that mistake. Subsequently, Ms. Wilcox waived arbitration of her claim and filed a complaint in the Circuit Court for Howard County, alleging negligence, breach of contract, and loss of consortium. Dr. Orellano moved to strike Ms. Wilcox’s certificate of qualified expert and to dismiss Ms. Wilcox’s complaint. Before a hearing could be held on Dr. Orellano’s motion to dismiss, a stipulation of dismissal was signed by the attorneys for both sides and filed. The stipulation of dismissal simply stated: “The parties, by and through their respective attorneys, pursuant to Md. Rule 2-506(a), hereby stipulate and agree to the dismissal without prejudice of this action in its entirety against [Dr. Orellano].”
Less than two weeks later, Ms. Wilcox filed another claim with the Health Care Alternative Dispute Resolution Office against Dr. Orellano. With that claim Ms. Wilcox filed both a certificate of a qualified expert and the report from that expert, as she was required to do by § 3–2A–04(b). After waiving arbitration again, Ms. Wilcox filed a complaint in the Circuit Court for Prince George’s County, again alleging negligence, breach of contract, and loss of consortium. Dr. Orellano, once again, moved to dismiss, but this time on the grounds that Ms. Wilcox’s claim was now barred by the applicable statute of limitations. After a hearing, the Circuit Court for Prince George’s County granted Dr. Orellano’s motion to dismiss, concluding that Ms. Wilcox, having in effect “voluntarily dismissed” her action, was not entitled to re-file her claim under § 5-119, and that her claim was now barred by the relevant statute of limitations. Ms. Wilcox appealed.
Section 5–119(b) of the Courts and Judicial Proceedings Article permits a party, whose medical malpractice “action or claim” has been “dismissed once ... without prejudice,” because of that party's failure to attach a report of an attesting expert to the certificate of a qualified expert, to re-file that “action or claim,” so long as it is filed within 60 days from the date of dismissal, regardless of whether the statute of limitations has run. This “savings provision,” however, does not apply, under § 5–119(a), the so called “preclusion provision,” when the dismissal of the claim or action is a “voluntary dismissal of a civil action or claim by the party who commenced the action or claim.”
On appeal, Ms. Wilcox argued that the limitation imposed by the preclusion provision (§ 5–119(a)) on the savings provision (§ 5–119(b)), applied only to a unilateral voluntary dismissal, and not a bilateral dismissal, such as a voluntary stipulation. Dr. Orellano responded that the language of the preclusion provision (§ 5–119(a)) clearly covered a voluntary dismissal by stipulation, and that there was no reason to distinguish unilateral and bilateral voluntary dismissals.
The Court of Special Appeals noted that it was not entirely clear from the plain language of the statute alone whether a stipulation of dismissal signed by both parties to the controversy constituted a voluntary dismissal “by the party who commenced the action.” The Court found that any ambiguity disappeared, however, when the preclusion provision (§ 5–119(a)) was read in conjunction with Maryland Rule 2-506. Rule 2-506 states that a party, who has filed a claim, may voluntarily dismiss that claim in one of two ways: “unilaterally” by dismissing her claim before the adverse party files an answer or “bilaterally by filing a stipulation of dismissal signed by all parties to the claim being dismissed. Thus, a voluntary dismissal by stipulation, under Rule 2-506(a), is a voluntary dismissal by a “party who has filed a complaint.” To the Court, when § 5–119 was read in combination with Rule 2-506, it was clear that § 5–119 encompassed both unilateral and bilateral voluntary dismissals. Thus, because nothing in the legislative history of § 5–119 suggested a contrary conclusion, the Circuit Court of Prince George’s County correctly ruled that the voluntary dismissal of Ms. Wilcox's first claim by stipulation precluded a renewal of her claim, as the statute of limitations governing that claim had run. Accordingly, the Court affirmed the ruling of the Prince George’s County Circuit Court.
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