My name is ***** ***** I would be happy to provide general information regarding your question.
First and foremost, when it comes to a dismissal of a case, the Courts are not concerned with the provisions of the dismissal. They only care that the case is being resolved (one way or the other) and it is being dismissed.
However, the attorneys (and the parties) to the suit give great weight to the stipulations contained in an agreement to dismiss a matter. In this case, the attorney for the doctor will most likely request, as a part of the settlement, that the med-mal cases be dismissed WITH prejudice as opposed to without prejudice.
There are numerous reasons for this. First, the attorney is trying to protect the doctor's interest in total. This means that the attorney would want ALL matters against the doctor dismissed and not just the breach of contract.
Second, there are the expenses involved. The attorney will not want to stipulate to a dismissal without prejudice regarding the med mal cases only to have the matters re-filed at some future date. This means the attorney will have to start over with the defense and the doctor/insurance carrier will have to pay the attorney for doing the same work he did prior to any reinstatement of the case.
Third, there may not be much leverage on your side. You haven't mentioned in great detail the med-mal cases, but you have mentioned that it has not worked to well for you (med-mal cases are very difficult cases even for experienced attorneys). What this means is that if the attorney is demanding a dismissal with prejudice of the med mal cases and you refuse to agree to that stipulation, the attorney will have no problem pushing forward with the med mal cases and (possibly, from what you have mentioned) succeeding in the defense of those cases.
So, to answer your question as to is this the right procedure, the answer would be "yes." This is because there is no set procedure when it comes to dismissing a case. It really depends on the agreement that is reached between the parties.
As to whether or not I think the attorney will agree to dismiss the med mal cases without prejudice while resolving the breach of contract action, I think the answer would be "no" based on the above reasoning. I believe that the attorney may be more inclined to resolve the breach of contract claim through settlement if the med mal cases were also dismissed with prejudice.
Any questions based on this? If so, please ask!