Voluntary Nonsuit Without Prejudice of a Medical Malpractice Action Is Not a “Favorable Termination on the Merits” as Required To Bring a Malicious Prosecution Claim

A patient underwent a medical procedure to implant a port-a-cath. The doctor performing that procedure told her that he discovered a guide wire in her vein, which he speculated had been left during a prior port-a-cath implantation. She sued the doctors who performed the prior port-a-cath implantation and the hospital where it was performed for medical malpractice. She was then informed that another party was responsible for the presence of the guide wire. She voluntarily dismissed the medical malpractice suit pursuant to Tennessee Rule of Civil Procedure 41. The doctors named in the original suit sued the patient for malicious prosecution and abuse of process.


The patient filed a motion for summary judgment arguing that the doctors could not prove that the prior suit had been terminated in their favor. The trial court denied her motion for summary judgment finding that issues of material fact existed with respect to the malicious prosecution claim. The Court of Appeals affirmed the trial court's denial.


The Supreme Court of Tennessee reversed the Court of Appeals and remanded the case to the trial court. The court overruled prior case law and held that a voluntary nonsuit taken pursuant to Tennessee Rule of Civil Procedure 41 is not a favorable termination on the merits for purposes of a malicious prosecution claim. To establish a claim for malicious prosecution, a plaintiff must prove that (1) the original plaintiff, now defendant, initiated a prior suit against the original defendant, now plaintiff, without probable cause; (2) the malicious prosecution defendant brought the prior suit with malice; and (3) the prior suit was terminated in favor of the malicious prosecution plaintiff.


The court held that the malicious prosecution plaintiffs could not prove that the prior lawsuit was terminated in their favor. The court reasoned that a judgment that terminates a lawsuit in favor of one of the parties must address the merits of the lawsuit. Therefore, it cannot terminate the lawsuit on procedural or technical grounds. The rights of the parties are not adjudicated when a voluntary nonsuit is taken. The parties are placed in their original positions prior to the filing of the lawsuit. The case may be refiled subject to the applicable statutes of limitations. A voluntary dismissal is only an adjudication on the merits of the case if (1) the order states that it is an adjudication on the merits or (2) the plaintiff has twice previously voluntarily dismissed actions based on or including the same claim. Here, the voluntary dismissal order did not state that it was an adjudication on the merits, nor did the malicious prosecution defendant twice previously voluntarily dismiss actions related to the same claim.


See: Himmelfarb v. Allain, 2012 WL 3667440 (Tenn., August 28, 2012) (not designated for publication).