Texas SC: Sanctions in med-mal cases can't be avoided by nonsuiting

Steve Korris Apr. 24, 2008, 4:48am

Dale Wainwright

AUSTIN – Attorneys who file flimsy medical malpractice suits can't dodge sanctions by nonsuiting their claims, the Texas Supreme Court decided April 18.

The justices unanimously remanded three cases to appellate judges who had declined jurisdiction over district court orders denying sanctions.

Justice Dale Wainwright delivered the court's opinion in one case, and the court quoted him in two opinions without signatures.

"It would be odd to suggest that parties who follow the instruction of Rule 33.1 of the Texas Rules of Appellate Procedure and obtain a ruling to preserve an appeal are then precluded from an appeal by a nonsuit because they obtained that ruling," he wrote.

In all three cases health care providers moved for sanctions under the Medical Liability Insurance Improvement Act, or MLIIA.

"Allowing defendants to seek sanctions under the MLIIA for attorney's fees and dismissal with prejudice deters claimants from filing meritless suits," Wainwright wrote.

"Removing a defendant's ability to appeal a denial of a motion for sanctions after a nonsuit frustrates this purpose; a claimant could simply nonsuit a meritless claim and later re-file the claim with impunity," he wrote.

The justices sent two cases back to the 13th District appellate court in Corpus Christi.

In the case Wainwright spotlighted, Adela Trejo sued Juan Mario Villafani and others in Cameron County over an abdominal surgery.

Villafani moved for sanctions and dismissal, claiming Trejo filed an inadequate expert report. The trial judge denied the motion.

Trejo then filed a notice of nonsuit without prejudice as to the claim against Villafani. The judge severed the claim and dismissed it.

Villafani petitioned the 13th District to reverse the order denying sanctions.

He lost there, but he appealed to the Supreme Court and won there.

Wainwright wrote, "Although a plaintiff decides which of its claims to pursue or abandon, that decision does not control the fate of a non-moving party's independent claims for affirmative relief."
Whether a sanction is considered a claim for affirmative relief depends on the purpose of the sanction, he wrote.

If a court imposes a discovery sanction to ensure a fair trial, he wrote, a nonsuit obviates the reason for the sanction and the sanction does not survive.

"Monetary sanctions, on the other hand, may serve compensatory and punitive purposes beyond the specific proceeding and, therefore, survive a nonsuit and can be the subject of an appeal," he wrote.
Villafani's motion survived the nonsuit, Wainwright wrote.

"Villafani had the right to seek appellate review of the trial court's denial of his motion," he concluded.

In the other 13th District case, Isela Rico and Manuel Rico sued Ricardo Barrera in Hidalgo County.

In the third case, from the Fourth District in San Antonio, Barbara Hargrave and Vernon Lloyd Pierce sued Regent Care Center of San Antonio in Bexar County.

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