ATLANTA – NOVEMBER 29, 2021 – Civil litigation defense firm, Wicker Smith O’Hara McCoy & Ford P.A., is celebrating a case dismissal secured by Atlanta associate Jonathan Silverman after an owner of an assisted living facility filed several causes of action against a hospital.
In this case, the Plaintiff filed a lawsuit against a regional hospital for fraud, alleging the hospital materially altered medical records to reflect that a patient was discharged from the Plaintiff’s assisted living facility two days later than the actual discharge date. The Plaintiff was later investigated by the Office of the Attorney General of Florida and was charged with felony neglect of an elderly person and the assisted living facility was shut down by the State of Florida as a result of its treatment of this patient. The Plaintiff later alleged his damages for the purported Fraud perpetrated by the Hospital included his criminal conviction and the shutting down of his assisted living facility, resulting in hundreds of thousands of dollars in lost income.
The Plaintiff previously filed and dismissed two identical causes of action, the last one being filed while the Court was pending a ruling on the hospital’s Motion for Summary Judgment. After the Plaintiff filed a third cause of action, Wicker Smith’s attorneys moved for dismissal with prejudice arguing the instant action violated the two dismissal rule under Fla. R. Civ. P. 1.420 and the statute of limitations for Fraud. It was also argued to have failed to state a cause of action for which relief could be granted.
The Court quickly agreed, finding the Plaintiff’s two previous voluntary dismissals to operate as an adjudication on the merits, barring the instant action. Despite alleging in his complaint that he did not learn of the purported fraud until 2017, in an effort to skirt the applicable four-year statute of limitations, the Court found that Plaintiff, through the exercise of due diligence, should have learned of the facts related to the purported fraud well before then. As a result, the case in its entirety was dismissed with prejudice.