hospital home health nurses in december of two thousand and nine the suit was filed the undergoing surgery was stomach stapling surgery that was performed in december of seven when clarence ward who was a gentleman in his late fort in the popular literature as flesh eating bacteria this was sudden and unexpected he went to the hospital was operated on and unfortunately died he was survived by his adult brothers and sisters no wife no children the suit was originally filed december of two thousand and nine but over the next six years there were nineteen counts filed and of those seventeen were dismissed ultimately on motion by the defendant the original complaint had nine counts of which were dismissed there was a st amended complaint in august two thousand and ten and the nd amended complaint which i think is the critical one for us in this  case nd amendment complaint was filed in november of two thousand and ten it consisted of a responding at survival action against the mh responding at superior wrongful death claim an institutional  negligence survival and wrongful death claim the plaintiff went forward ultimately on the eve of trial in january of two thousand and sixteen took a non suit and at that point the case was dismissed by one terribly three months later may have two thousand and sixteen he refiled the action we filed a motion to dismiss based on the authority of  filing the  the particular issue presented in this case is the meaning of hudson and i'm not sure of the pronunciation is rain or rhine they seem to go together the the th district appellate court has ruled as the court knows recited the language of this court and foxcroft which is that if you file a complaint and you are dismissed and you don't protect yourself by repeating or in some fashion referring to those things that were dismissed that you are barred none of what happened before the circuit court over those six years and those seventeen counts that were dismissed none of those things happened there are no the to in effect they ruled that it was totally irrelevant what happened in those really are motions it was irrelevant whether the court found they were with prejudice or without it was a roll of it whether lee was granted or was not and the court found therefore that the  don i want to give you an opportunity to do you respond to the case richter versus yes times now that seems to be the most recent case from this court you did not refer to it in your opening brief even if it was doesn't rector control this case well the trial court certainly knew about richter and it was argued strongly by my opponent in that case i believe the difference between these cases is that the facts are different but also in richter the plaintiff did not plead over which he did hear it rector i believe the plaintiff was given something like twenty eight or thirty days within which to file an amended complaint they didn't some years went by and he didn't and nothing happened in the essentially so and ultimately then the plaintiff took a non suit the difference is in that case nothing happened in the case nobody pushed it it was dismissed and nothing ever happened to enter a final judgment but that's the question that victor seems to say the key is all of what went before or any of those final judgments can you tell me which of the night team crowns that were before the court which won and any final judgment that right to requires for resurrection well in richter there were no motions like we have in this case in other words the case sat there for a long time and ultimately the plaintiff one was it is a three come complaint one was  doesn't file those things within thirty days then yes it's final because the threshold doesn't exist anymore that would preclude no that's what we're arguing in this case richard you really make it ok ok well well with respect richter this case might be closer to richter if instead of the course it actually took back very early on in this case the court said to the plaintiff ok you have twenty eight dollars days within which to file something and he didn't and the case goes on for three or four years and nobody does anything and he takes a nonsuch then it would be rector exactly it would be the difference is that in this case the plaintiff played over and that was a final judgment because they had they abandon it basically in was a claim they filed and there was a motion to dismiss and it was allowed they did not go on and file their certificate they abandon it they replied and did not protect themselves by referencing it in a footnote or in a separate paragraph or repeating it or appealing it and that's the crux of it i think are you arguing that the the dismissal of the institutional negligence bars  right yes by reason of the application of hudson which is all matters it's true there was never a ruling on the responding at superior claim but the same way it was in hudson in that case basically they never did get to the merits what we're relying on it's true in running hudson i think that there was not an order entered that allowed the filing of an amended complaint i think that's true that there wasn't nevertheless i don't know it's not as clear that some  demanded their complaint no it wouldn't be but by reason of the the the way the case unfolded yes it is that's our position is help me understand that the dismissal was with leave to file a new richter than right and hudson well we don't think so judge and that the difference is that they did plead over and they abandon the previous claim that's what they did so if we had sat there as i mentioned to you earlier if we'd sat there for years and the plate of did nothing further and we did neither this would be richter that would be this case that they abandoned that they played over that they misinterpreted foxcroft i don't i can't account for why they interpreted that the way they did their interpretation is that nothing that happened in those six years with these various counts matters and it doesn't matter what was done in terms of with prejudice without that it's totally without significance in the case so the result is that the court wasted a lot of time the lawyers wasted a lot of time arguing these things and we got to the end and we think the upshot of the court's opinion in the th district is that they can refile anything they want the nd time through and i don't think the rule permits that the there are a couple of other points i would like to make and that before the court on a pleading issue that the previous leadings in the case that have taken place aren't before the court the court get consider those things i wonder if the court believed in this case that somehow those previous foxcroft i believe they felt that the holding of foxcroft is that because of the fact that those things are considered that somehow they can't they can't be considered by the court but they're not part of the history of the case and they are the critical part of our case here is that all of these things happen the court the plaintiff abandon the claim and therefore the that was a judgment on the merits and that therefore refuted caught as appropriate there are a couple other points i do want to make the plaintiff here and in this case i should point out that the plaintiff in the case in his brief talks about his belief that the court was incompetent to preside over a medical negligence case he attached an exhibit the court previously ruled i believe in hudson that the motive of the plaintiff for taking a non s is not relevant the court shouldn't consider it the other thing that i think the plaintive relies on is that in the dismissal in january of two thousand and sixteen at that point the court used the words without prejudice and somehow that means that he is free to file anything he wants this court also rejected that argument in hudson so our argument is that there was a final judgment  was dismissed that that somehow was a final judgment that prevent us from refiling this case but if you look at richter it color it's right on point because that count was dismissed with leave to refile and that's what richter says if you have leave to refile or if it's dismissed without prejudice either one it's not a final judgment so so we'll leave that that is a basis for claiming it was the final judgment the other thing that dismiss their most was that dismissed that count and i just because there wasn't a basis for it but it was clear that if discovery would have shown that the reason these nurses failed to turn this gentleman and he had a bed sore  was open when he went home that was the porthole for this bacteria that ended his life was because of staffing issues because there weren't enough nurses and i think there would have been some more responsibility but the key issue is it's not a it's not a final judgment they all seem to be making the argument that any one of those counts that we have that were dismissed are enough to be a final judgment but you need look at those if you look at the initial complaint there's one thousand dollars but the factual allegations are the same that when the fence counsel came to me and said you know the caterer home health care is owned by the hospital so you don't really need to sue mall we just said fine we we took them out of the case well those are three counts that disappeared a wrongful death case a survival case a family expense act case all were removed was an involuntary we said ok that's fine that the rest of the administrator in the family came to was there was a lot of time left and we couldn't find one of the brothers he was a strange member of the family so we had to do it by publication so when we filed he was not yet named administrator but it's like it relates back but again we had the right to refile that which we did after he was named the administrator for his brother so this is to show negligence separate and apart from medical negligence we don't you know i do mean it is in terms of the allegations and we cite this court's decision wilson which was another  later than everything else they cite here it says you know those are overlapping allegations if you take those away to still have the nursing negligence it doesn't really affect the critical nature of the case so but the key thing is you know richter says and again records later than any case they cite it's a unanimous decision of this court says it was dismissed without prejudice it's not a final judgement that's how it was dismissed if you leave to refile it's not a final judgment it was dismissed with leave to refile richter exactly and we don't think that's the only reason i mean are the two things i looked at when we had this issue with judge diamond and they did mention in their brief by the way that we did raise i and put them in the complaint to make it match what we found in discovery i called my client to tell him what the options were and i was sure then and i'm sure now that if we filed without prejudice which it was that we got a year to refile any claim i know that's an interesting part of this case but my client when i told him about this and told the options this is what he decided to do we could have got him back again but we want to try the case with our hands tied behind our back i mean ordinarily if you if you don't approve of the court's rulings and you make your record you take it up on appeal if you get an adverse decision in that realm i mean we had other options but none of them seem to be very good but just this one seemed to make the most sense i wonder of volunt dismissal what's the effect of earlier rulings on the on the nd case so in other words that you didn't like the ruling the judge made so you figure you'll dismiss and get another judge maybe a judge will make a different ruling that seems to be saying another complaint which would be the th complaint that were made and the trial judge said something like at this late date i would find the words exactly but he said at this late date this case has been pending for all these years that becomes a question about the entire court system and how long the case taking you know the a b a standard say that a time standard for civil jury cases say that all three cases should be completed in two years what happen well i take the responsibility because i actually asked the judge to help with discovery but i'll just give an example and i i can read you things back again when was the surgeon we scheduled his deposition in about an hour and he said i have to leave well i wrote a letter right after that saying well we want to finish the deposition was over a year before he was presented to get i've letters where counsel for the hospital said we understand the urgency of this and both schedule these nurses depositions they never did i should have gone into court and  pushed to get a faster schedule i you know what i think the timing on this doesn't affect the legal side of it know a lot of times been spent on a ton of issues on this case and everything you can imagine we've been in front of the judge a lot of times in this case to change that rule that's been established and if so what is the landscape like going ok as that's a great question here's my response it's been about forty eight years since dean cribbage addressed my incoming class  i and he said we're going to teach you how to see the big picture and to me when you pass this part of the big picture it would be so much easier for everybody i understood that that statute gives you a year to refile there's no question about it if you want to call  right administrator in the case if both sides knew that during that year a case could be refiled would be limited to anything that had been filed before and as an appellate court pointed out even if pressure with prejudice you've got to refile it or you waive it so anything that you've raised before you can raise during that year and and that brief makes a good point that there's absolutely no prejudice that the defendant they haven't seen they're not seeing anything they didn't see in the prior case but particularly interesting in this case is i position is there's only on this one cause of action it's a claim that the nurse is failing to meet the standard of care resulted in the death of mr ward it's very straightforward that we never alleged anything against a physician there was no need to to do that there was some confusion because i'm not sure the circuit court judgment and it was the night and that's still the only cause of action they're seeing in war two so how can they claim that they were in any way prefaced by this and that would so yeah i mean we think that hudson was decided incorrectly i mean the defendant was not facing anything they had seen before there was no new allegations there was no hell no place letting me there's no claim spitting splitting in this case him could be done in this case right because hudson was following the other press that's why i'm just asking you if we agree with you is this an opportunity to take the  the international case that says the same thing so all those things are in line with having you here to file a new claim that can raise any allegation you've raised before ther was dismissed with or without prejudice that would be great everybody would know exactly what's going on and and the nightmare of hudson and replace that lawyer the lawyers would be over and people would be trying to find a way to use it or get around it but yeah we sets of facts as a right and they let it go and they appealed a couple counts and then came back later and that constitutes claim splitting we don't have any of that in our case it didn't have any of that in the hudson case so i think you know in talking to people about and but that's separate from this case because in that case it was dismissed without prejudice and the other distinction is there was no way to bring it back i mean that in these clear there was no way to bring that part of the case back we don't have any of that great if some of this could be clarified because you know all the litigation has come you know subsequent to this and and so it was a good time to do that  i do one of the things that i did that i wrote about when i started responding to these motions is that we always thought we only had one cause of action nursing negligence no claim splitting no no have record that says if it's dismissed without prejudice or of us dismissed with leave to appeal it's not a final judgment we've got the issue that this but there's no place looking because this was one cause of action that's all it's ever been never filed suit against a doctor and we have just issue it being inequitable to apply in this case regardless of everything else because of why this came about i mean i i don't know what your response is to those rulings eight days before trial but i mean we you couldn't believe it and judge little said the same thing as soon as he took over the nd case i don't understand the reason for not letting nurses you haven't testify or i don't understand why the rebuttal witness can't testify i don't understand i mean we're we're supposed to amend a complaint to make it consistent with what's been discovered during discovery i mean all the way through trial we were supposed to do that that wasn't open asking a favor and it wasn't really changing it was still based on her saying that we just he was supposed to be turned every couple hours he wasn't he went home with a bed sore that was fourteen centimeters by sixteen centimeters that was open in the records he was unlucky in getting a bacteria that was deadly but that's the portal we have an affection disease change but the counts are always the same cause of action also raise just briefly that issue if you know is it really an involuntary dismissal when the senate tells me that home health care is owned by the hospital we say fine and we dismiss home health care because there's no need to have both those defendants in there and i don't have the stretch to say that was involuntary those the counts three and four that were dismissed by agreement well i mean why would i fight that i hospitals already defended so that's why one of the seventeen counts were dismissed their best argument is that institutional negligence because you could argue that that's a separate cause of action than the nursing negligence we don't think it is and case and you can not only real less anything you've already alleged but you have to otherwise you wait so that's our position thank you several points briefly judge history to tional negligence is absolutely a separate claim from responding at superior nursing doctor negligence has different elements and they sued in institutional but they didn't it's counsel seem to suggest they didn't have a claim for that is right they didn't they tried to plead it and it just wasn't there and they didn't get a certificate because i'm sure they couldn't find one so it is a totally different theory i think that ryan and hudson and foxcroft roll well decided i think those are the law i think this court can do anything it wants as far as those previous cases i hope the court follows ryan and hudson and  foxcroft i hope the court does not let that decision of the th district stand because to me it's a logical it's not supported by the foxcroft case i think it misses the holding all together like effect whether line richter  moved in the trial court or in order making all of these orders final and you did not do that judge i've never seen that done i've never done that because the effect of dismissing says and they didn't so there is no necessity once a court dismisses that count and they plead over it's gone it can't be resurrected in that case the other thing is there's a suggestion look the issue was not home health care home health care is a d b a name doing business physician negligence this case did not go on for six years because a plane of had a hard time getting a deposition of a doctor it did and it went on for a very long time because there were numerous counts filed that were improper and it went on for a long time because frankly i think inattention is what i think i would hope the court would reverse it whatever it was with this case i would hope it reverses the th district appellate decision because i do think it's of the council did mention diluent to me is the case that basically says that to six to two is a threshold requirement that absent that the claim cannot go forward and it is a final judgment thank you thank you