Dismissals with prejudice

April 9, 2004

A doctor in my group recently had a malpractice suit that was dismissed with prejudice. What does that mean? Must we report this case on applications for malpractice insurance, hospital privileges, or to join an HMO panel?

Q: A doctor in my group recently had a malpractice suit that was dismissed with prejudice. What does that mean? Must we report this case on applications for malpractice insurance, hospital privileges, or to join an HMO panel?

A: Dismissal with prejudice is based on the merits of the case, and the plaintiff is barred from filing another lawsuit on the same claim. There's no possibility of a repeated action within the same jurisdiction based on the same facts. For example, the plaintiff can't sue your associate for a missed diagnosis and then a year later sue you, saying, "When you treated me last time, I also developed migraines from the stress."

If a plaintiff sues a doctor and files the summons after the statute of limitations has expired, the defense can probably have the case dismissed with prejudice so that the plaintiff can't file the lawsuit again.

A dismissal without prejudice, on the other hand, doesn't bar the plaintiff from refiling the lawsuit within the applicable limitations period. If a plaintiff sues a doctor but the summons isn't handed to the doctor in the appropriate manner, for instance, the defense may make a motion to dismiss. The court may very well grant the motion but mark it "without prejudice." This means the plaintiff will have another opportunity to serve the legal papers.

You must report the suit against your colleague on any applications that ask about your malpractice history, but you should note that it was dismissed with prejudice. The good news is that you won't be reported to the National Practitioner Data Bank, which tracks only payments made on behalf of physicians, not pending or dismissed lawsuits.