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Wilcox v. Orellano

Court of Appeals of Maryland

May 28, 2015

Lydia G. Wilcox, et al.,
Tristan J. Orellano

Argued: April 8, 2015

Circuit Court for Prince George’s County Case No. CAL10-15397

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ.

McDonald, J.

This case concerns the consequences of a voluntary dismissal of a medical malpractice action. The initial complaint filed by the plaintiff failed to comply with a statutory prerequisite for maintaining a medical malpractice action – the attachment of an expert report concerning the alleged malpractice. That defect would result in dismissal of the complaint under the statute governing malpractice actions. The plaintiff voluntarily dismissed the action, corrected the defect, and re-filed the action. In the meantime, the statute of limitations had expired well before the filing of the second action.

A statute specific to medical malpractice actions provides some relief from the statute of limitations when an initial complaint is dismissed for the particular defect that affected the plaintiff's complaint. However, the statutory savings provision does not apply in cases in which a plaintiff has voluntarily dismissed the prior complaint.

The Maryland Rules allow a plaintiff to voluntarily dismiss a complaint by filing a simple notice of dismissal before the defendant has answered the complaint. After an answer has been filed, the plaintiff can accomplish a voluntary dismissal only by obtaining the defendant's assent or the court's permission.

This case turns on whether it makes a difference that the voluntary dismissal in this case was effected by a stipulation of dismissal, necessary because the defendant had already answered the complaint, as opposed to a notice of dismissal. We hold that it does not and that the savings provision does not apply to any case in which there has been a voluntary dismissal.



A. Voluntary Dismissals

For various reasons, a plaintiff in a civil action may choose to dismiss a claim – or an entire complaint – voluntarily. The process that a plaintiff must follow to do so – and the consequences of the dismissal – varies according to the stage of the proceeding and whether the plaintiff has previously dismissed the same claim, as elaborated in Maryland Rule 2-506.[1] That rule, entitled "Voluntary Dismissal, " states in pertinent part:

(a) By notice of dismissal or stipulation. Except as otherwise provided in these rules or by statute, a party who has filed a complaint, counterclaim, cross-claim, or third-party claim may dismiss all or part of the claim without leave of court by filing (1) a notice of dismissal at any time before the adverse party files an answer or (2) a stipulation of dismissal signed by all parties to the claim being dismissed.
(c) By order of court. Except as provided in section (a) of this Rule, a party who has filed a complaint ... may dismiss the claim only by order of court and upon such terms and conditions as the court deems proper ....
(d) Effect. Unless otherwise specified in the notice of dismissal, stipulation, or order of court, a dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a party who has previously dismissed ... an action based on or including the same claim.

According to the plain language of the rule, a plaintiff may voluntarily dismiss a complaint in one of three ways: by a notice of dismissal, by a stipulation of dismissal, or by court order. State ex rel. Lennon v. Strazzella, 331 Md. 270, 275-76, 627 A.2d 1055 (1993). Thus, the concept of voluntary dismissal encompasses a stipulation of dismissal after an answer has been filed. Milburn v. Milburn, 142 Md.App. 518, 533, 790 A.2d 744 (2002). In fact, since the predecessor of Rule 2-506 was adopted in 1956, the Maryland Rules have consistently provided that a plaintiff may accomplish a voluntary dismissal by filing a stipulation of dismissal. See Maryland Rule 541(a)(2) (1956) (a party may voluntarily dismiss an action by "filing a stipulation of dismissal signed by all parties who have appeared in the action").[2] This aspect of Rule 2-506 is modeled after Federal Rule of Civil Procedure 41.[3]

As Rule 2-506 indicates, on the first occasion that a claim is voluntarily dismissed, the dismissal is "without prejudice" – i.e., it is not an adjudication on the merits that would, under the doctrine of res judicata, foreclose a plaintiff from refiling the action. (A second notice of dismissal, however, does operate as an adjudication on the merits and forecloses refiling.) It is well settled under the federal rule that, even though a dismissal is without prejudice, there is ordinarily no tolling of the statute of limitations and a plaintiff may be barred by limitations from re-filing an action that has been voluntarily dismissed "without prejudice." 9 Wright, Miller & Kane, Federal Practice & Procedure, §2367 (3d ed. 2008) ("[I]t seems well settled in the case law that the statute of limitations is not tolled by bringing an action that later is dismissed voluntarily under Rule 41(a)").[4] Thus, even though res judicata may not prevent a plaintiff who has voluntarily dismissed a claim from refiling the claim, the statute of limitations – if it has expired in the meantime – may do so. Although this Court has not had occasion to confirm that the same principle applies with respect to Rule 2-506, as with respect to the federal rule on which it is based, the Court of Special Appeals has characterized that conclusion as "[w]hat would seem to be certain to most"[5] and there is no evident reason to come to a contrary conclusion.

B. Bringing a Claim under the Health Care Malpractice Claims Act

The Health Care Malpractice Claims Act ("HCMCA"), codified at Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §3-2A-01 et seq., establishes procedures for all "claims, suits, and actions ... by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than the limit of the concurrent jurisdiction of the District Court are sought." CJ ยง3-2A-02(a)(1). The HCMCA creates a mandatory arbitration system for all medical malpractice claims alleging damages over a certain limit ...

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