Court Refuses to Strike a Discontinuance Entered in a Medical Malpractice Case

In the case of Eubank v. Ing, Nov. Term, 2023, No. 0926 (C.P. Phila. Co. Feb. 7, 2025 Bright, J.), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s denial of a Plaintiff’s Motion to Strike a Discontinuance that was filed in a medical malpractice action.

According to the Opinion, the Plaintiff alleged that his former attorney acted without the Plaintiff’s understanding or consent when the attorney filed the Discontinuance.

However, evidence was produced from the former attorney that specifically confirmed that the Plaintiff gave authorization to the former attorney to discontinue the matter.

Accordingly, the trial court concluded that the Discontinuance was not filed without the Plaintiff’s consent. The court also found that there were no grounds to support any finding of any confusion or misunderstanding by the Plaintiff about what was taken place relative to the filing of the Discontinuance.

The court ruled that, where a party fails to show that the entry of a Discontinuance with the result of fraud, imposition, or mistake, it is not an abuse of discretion by the trial court to deny a Petition to Strike a Discontinuance.

Moreover, the trial court noted that the Plaintiff commenced the lawsuit within the two (2) year statute of limitations but then discontinued the matter. It was noted that the Plaintiff’s Petition to Strike the Discontinuance was not filed until after the expiration of statute of limitations. The court found this to be an additional reason for the Superior Court to find that there was no abuse of discretion by the trial court to deny the Plaintiff’s request to reopen the matter.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer Common Pleas Case Alert,” www.Law.com (June 11, 2025).

Source of image:  Photo by Wesley Tingey on www.unsplash.com.