- Email: [email protected]
Malicious prosecution suit upheld
LITIGATION, LEGISLATION, AND ETHICS
Malicious prosecution suit upheld Laurance Jerrold, DDS, JD Massapequa Park, NY
I
t is very common to hear someone who has been unjustly accused of malpractice lament about his inability to countersue the plaintiff for malicious prosecution. These suits are very difficult to maintain because you must prove that (1) the suit was begun or continued against you in bad faith or was instituted solely to delay or prolong the resolution of the litigation; (2) the suit was brought to harass or maliciously injure you; and (3) the action has no basis in law or in fact and cannot be supported by a good-faith argument to extend, modify, or reverse existing law. When you come right down to it, there aren’t many cases that fit this bill. As luck would have it, Miller v Rosenberg, 749 NE 2d 946 (2001), is a good example of 1 that does. The plaintiff filed an action against her periodontist, claiming that, during the 5 years she was being treated, he failed to detect, diagnose, and treat an impacted wisdom tooth, and therefore she suffered permanent paresthesia. His records reflected that during the doctor-patient relationship, he did indeed make recommendations for the patient to consult an oral surgeon to evaluate the offending tooth, but the plaintiff ignored them. In addition, the periodontist offered additional proof that 2 other concurrent treating dentists made the same recommendations, and they too were similarly ignored. After discovery and before trial, the doctor moved for summary judgment. This motion was granted, and the suit was dropped. The plaintiff appealed the trial court’s ruling; the appellate court reversed, stating that the case concerned factual questions that should have been decided by a jury instead of the judge; and the case was remanded for trial. At trial, the periodontist was found not to be liable. He then instituted a malicious prosecution suit against the plaintiff and her attorney. After a lengthy court battle in which the circuit court reversed itself, the issue was decided in the plaintiff’s favor, and the malicious prosecution suit was dismissed. Then it was the periodontist’s turn to appeal. The state supreme court
Program Director, Postgraduate Orthodontics, Saint Barnabas Hospital, Bronx, NY. Am J Orthod Dentofacial Orthop 2002;122:673-5 Copyright © 2002 by the American Association of Orthodontists. 0889-5406/2002/$35.00 ⫹ 0 8/8/130247 doi:10.1067/mod.2002.130247
issued the determination that forms the basis of this article. The malicious prosecution suit claimed that (1) the plaintiff acted without probable cause and with malice because she lied when she said she did not know of the impacted tooth; (2) the plaintiff failed to properly investigate both the facts of the original negligence claim and, if there was negligence, whether it was the proximate cause of the paresthesia; (3) the true basis for filing the suit had nothing to do with malpractice but was a veiled attempt to get back at the periodontist for “perceived incourtesies” against her during their professional relationship; (4) the original suit was just a way to recoup monies paid for services rendered because the plaintiff knew there was no basis for claiming that malpractice had been committed; and (5) because of being charged with malpractice, the defendant suffered “personal and pecuniary injuries, including, but not limited to, mental anguish and increased anxiety,” was forced to incur attorney fees and expend considerable time and energy to defend the underlying action and his professional reputation, and, because of the action filed against him, he now had to pay higher premiums for professional liability insurance. The plaintiff argued that the malicious prosecution suit should be dismissed, claiming that it violated state law because the defendant suffered no injury or damages over and above the ordinary expense and trouble of defending a civil action. The periodontist argued that section 2-109 of the Illinois Code of Civil Procedure created an exception to this law by providing: In all cases alleging malicious prosecution arising out of proceedings which sought damages for injuries . . . by reason of medical . . . or other healing art malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause of action. In all such cases alleging malicious prosecution, no exemplary or punitive damages shall be allowed.
In addition, the plaintiff claimed that section 2-109, relied on by the defendant, also violated the Illinois State Constitution in 2 respects: the proscription against special legislation, and the Constitution’s due process and the equal protection clauses. As to the first argument, the plaintiff claimed that the state cannot arbitrarily or irrationally eliminate the “special injury” 673
674 Litigation, legislation, and ethics
requirement for doctors because by doing so, it makes it easier for them, as opposed to nonprofessionals, to file malicious prosecutions suits. The due process and the equal protection arguments were based on the constitutional mandate that the government must treat similarly situated people similarly. When courts review constitutional challenges, 1 of 3 tests is used, depending on the issue to be resolved. The first test is the strict scrutiny test, used when the issue concerns a law that is deemed necessary to achieve a compelling state interest. These laws, for example, deal with fundamental rights issues such as freedom of religion or speech. The second test requires courts to exercise intermediate scrutiny. In this situation, a law is deemed constitutional if it is substantially related to an important governmental interest. An example of this would concern laws affecting members of quasi-protected classes. The lowest level of scrutiny is the rational-basis test that merely requires the law to be rationally related to a legitimate state interest, an example of which is this case. The Illinois Constitution provides that no special or local law can be established when a general law is or can be made applicable. Thus no “special benefit or exclusive privilege [can be conferred] on a person or group of persons to the exclusion of others similarly situated.” The purpose of a statute of this sort is therefore to “prevent arbitrary legislation that discriminates in favor of a select group without a sound, reasonable basis.” The court must base its decision on whether the law is “sufficiently related to the evil to be obviated by the statute.” (cits. omit.) Statute 2-109 was among several passed in the mid-1980s to address the perceived malpractice crisis of the day. Citing another case, the court noted that various laws addressing the issues of periodic payments for certain types of damages, modifications affecting collateral source rules, the elimination of punitive damages in malpractice cases, and the initiation of sliding contingency fee schedules were all upheld. In deciding whether this statute created a special class of persons, the court said that a legitimate state interest is the prevention of groundless malpractice suits, and thus creating a special class of persons to avail themselves of malicious prosecution countersuits meets this interest. The supreme court noted that, by enacting section 2-109, the legislature: eased the burden of bringing a malicious prosecution action for health care professionals with the specific intent of not only discouraging the filing of frivolous medical malpractice lawsuits, but also as a way of punishing those plaintiffs who bring baseless medical malpractice claims. . . . It does so by removing the
American Journal of Orthodontics and Dentofacial Orthopedics December 2002
need to show special injury in order to recover in such cases. It mitigates the effect of this provision by foreclosing the award of exemplary or punitive damages.
Finding that this statute was reasonably related to a legitimate governmental interest—that of remedying a perceived malpractice crisis—the court reversed the circuit court’s ruling and allowed the periodontist’s malicious prosecution case to proceed.
COMMENTARY
The clinical analogy is simple as is the riskmanagement lesson. In orthodontics, we routinely see teeth we want extracted for various reasons. Two common examples are third molars and deciduous canines. Meso-angular third molar impactions can cause numerous types of pathology, and meso-angular ectopic eruption of maxillary permanent canines has been associated with disastrous sequellae to the adjacent anterior teeth. Very often, we order these teeth to be extracted. Very often, our patients refuse to follow our advice. Okay, so along the lines of “you can lead the horse to water, but you can’t make him drink,” now what? When the patient returns and has not followed your advice, what is your office’s risk-management policy? I hope that every clinical recommendation has been in writing and entered properly in the patient’s chart. Better yet, a 3-copy, no-carbon-required form allows 1 copy of the referral to go to the patient, 1 to be placed in your records, and 1 to go to the patient’s general dentist, oral surgeon, or periodontist. When the patient returned, did you refer him or her again; did you emphasize the importance of following through with the referral and the consequences of not doing so; and did you document these efforts in the patient’s record? You should have. What do you do when it is the third or fourth time? You know the seriousness of the situation. You try to explain it in the strongest possible terms, with professional decorum, but the patient insists that he or she will not submit to impaction surgery, exposures, or uprighting. At this point, some of you might say that this never happens to me, while others ask how does he know that these things happen to me? The point is, what do you do? Ultimately, when the case goes south, the prophecy comes to pass, and your patient is looking for someone to blame, guess what—the lawsuit gets filed. Is this a case of malicious prosecution? Can you adequately defend the negligent referral and lack of informed
American Journal of Orthodontics and Dentofacial Orthopedics Volume 122, Number 6
consent claims? If you have documented well, you probably can. If you prevail, should you then initiate a countersuit for malicious prosecution of frivolous claims? Is it all worth it? How do you nip this thorn in the bud? Remember, you can terminate the doctor-patient
Litigation, legislation, and ethics 675
relationship regardless of whether your patient is a passive or an active noncooperator if you follow certain steps. Use your already established office risk-management protocol in these situations. The bottom line is that after you show these patients the water, if they won’t drink, let them be thirsty somewhere else.
Information pertaining to litigation, legislation, and ethics will be reported under this section of the American Journal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, reader’s comments, and reprint requests may be submitted to Laurance Jerrold, DDS, JD, 82 Laurel Dr, Massapequa Park, NY 11762.
Malicious prosecution suit upheld Laurance Jerrold, DDS, JD Massapequa Park, NY
I
t is very common to hear someone who has been unjustly accused of malpractice lament about his inability to countersue the plaintiff for malicious prosecution. These suits are very difficult to maintain because you must prove that (1) the suit was begun or continued against you in bad faith or was instituted solely to delay or prolong the resolution of the litigation; (2) the suit was brought to harass or maliciously injure you; and (3) the action has no basis in law or in fact and cannot be supported by a good-faith argument to extend, modify, or reverse existing law. When you come right down to it, there aren’t many cases that fit this bill. As luck would have it, Miller v Rosenberg, 749 NE 2d 946 (2001), is a good example of 1 that does. The plaintiff filed an action against her periodontist, claiming that, during the 5 years she was being treated, he failed to detect, diagnose, and treat an impacted wisdom tooth, and therefore she suffered permanent paresthesia. His records reflected that during the doctor-patient relationship, he did indeed make recommendations for the patient to consult an oral surgeon to evaluate the offending tooth, but the plaintiff ignored them. In addition, the periodontist offered additional proof that 2 other concurrent treating dentists made the same recommendations, and they too were similarly ignored. After discovery and before trial, the doctor moved for summary judgment. This motion was granted, and the suit was dropped. The plaintiff appealed the trial court’s ruling; the appellate court reversed, stating that the case concerned factual questions that should have been decided by a jury instead of the judge; and the case was remanded for trial. At trial, the periodontist was found not to be liable. He then instituted a malicious prosecution suit against the plaintiff and her attorney. After a lengthy court battle in which the circuit court reversed itself, the issue was decided in the plaintiff’s favor, and the malicious prosecution suit was dismissed. Then it was the periodontist’s turn to appeal. The state supreme court
Program Director, Postgraduate Orthodontics, Saint Barnabas Hospital, Bronx, NY. Am J Orthod Dentofacial Orthop 2002;122:673-5 Copyright © 2002 by the American Association of Orthodontists. 0889-5406/2002/$35.00 ⫹ 0 8/8/130247 doi:10.1067/mod.2002.130247
issued the determination that forms the basis of this article. The malicious prosecution suit claimed that (1) the plaintiff acted without probable cause and with malice because she lied when she said she did not know of the impacted tooth; (2) the plaintiff failed to properly investigate both the facts of the original negligence claim and, if there was negligence, whether it was the proximate cause of the paresthesia; (3) the true basis for filing the suit had nothing to do with malpractice but was a veiled attempt to get back at the periodontist for “perceived incourtesies” against her during their professional relationship; (4) the original suit was just a way to recoup monies paid for services rendered because the plaintiff knew there was no basis for claiming that malpractice had been committed; and (5) because of being charged with malpractice, the defendant suffered “personal and pecuniary injuries, including, but not limited to, mental anguish and increased anxiety,” was forced to incur attorney fees and expend considerable time and energy to defend the underlying action and his professional reputation, and, because of the action filed against him, he now had to pay higher premiums for professional liability insurance. The plaintiff argued that the malicious prosecution suit should be dismissed, claiming that it violated state law because the defendant suffered no injury or damages over and above the ordinary expense and trouble of defending a civil action. The periodontist argued that section 2-109 of the Illinois Code of Civil Procedure created an exception to this law by providing: In all cases alleging malicious prosecution arising out of proceedings which sought damages for injuries . . . by reason of medical . . . or other healing art malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause of action. In all such cases alleging malicious prosecution, no exemplary or punitive damages shall be allowed.
In addition, the plaintiff claimed that section 2-109, relied on by the defendant, also violated the Illinois State Constitution in 2 respects: the proscription against special legislation, and the Constitution’s due process and the equal protection clauses. As to the first argument, the plaintiff claimed that the state cannot arbitrarily or irrationally eliminate the “special injury” 673
674 Litigation, legislation, and ethics
requirement for doctors because by doing so, it makes it easier for them, as opposed to nonprofessionals, to file malicious prosecutions suits. The due process and the equal protection arguments were based on the constitutional mandate that the government must treat similarly situated people similarly. When courts review constitutional challenges, 1 of 3 tests is used, depending on the issue to be resolved. The first test is the strict scrutiny test, used when the issue concerns a law that is deemed necessary to achieve a compelling state interest. These laws, for example, deal with fundamental rights issues such as freedom of religion or speech. The second test requires courts to exercise intermediate scrutiny. In this situation, a law is deemed constitutional if it is substantially related to an important governmental interest. An example of this would concern laws affecting members of quasi-protected classes. The lowest level of scrutiny is the rational-basis test that merely requires the law to be rationally related to a legitimate state interest, an example of which is this case. The Illinois Constitution provides that no special or local law can be established when a general law is or can be made applicable. Thus no “special benefit or exclusive privilege [can be conferred] on a person or group of persons to the exclusion of others similarly situated.” The purpose of a statute of this sort is therefore to “prevent arbitrary legislation that discriminates in favor of a select group without a sound, reasonable basis.” The court must base its decision on whether the law is “sufficiently related to the evil to be obviated by the statute.” (cits. omit.) Statute 2-109 was among several passed in the mid-1980s to address the perceived malpractice crisis of the day. Citing another case, the court noted that various laws addressing the issues of periodic payments for certain types of damages, modifications affecting collateral source rules, the elimination of punitive damages in malpractice cases, and the initiation of sliding contingency fee schedules were all upheld. In deciding whether this statute created a special class of persons, the court said that a legitimate state interest is the prevention of groundless malpractice suits, and thus creating a special class of persons to avail themselves of malicious prosecution countersuits meets this interest. The supreme court noted that, by enacting section 2-109, the legislature: eased the burden of bringing a malicious prosecution action for health care professionals with the specific intent of not only discouraging the filing of frivolous medical malpractice lawsuits, but also as a way of punishing those plaintiffs who bring baseless medical malpractice claims. . . . It does so by removing the
American Journal of Orthodontics and Dentofacial Orthopedics December 2002
need to show special injury in order to recover in such cases. It mitigates the effect of this provision by foreclosing the award of exemplary or punitive damages.
Finding that this statute was reasonably related to a legitimate governmental interest—that of remedying a perceived malpractice crisis—the court reversed the circuit court’s ruling and allowed the periodontist’s malicious prosecution case to proceed.
COMMENTARY
The clinical analogy is simple as is the riskmanagement lesson. In orthodontics, we routinely see teeth we want extracted for various reasons. Two common examples are third molars and deciduous canines. Meso-angular third molar impactions can cause numerous types of pathology, and meso-angular ectopic eruption of maxillary permanent canines has been associated with disastrous sequellae to the adjacent anterior teeth. Very often, we order these teeth to be extracted. Very often, our patients refuse to follow our advice. Okay, so along the lines of “you can lead the horse to water, but you can’t make him drink,” now what? When the patient returns and has not followed your advice, what is your office’s risk-management policy? I hope that every clinical recommendation has been in writing and entered properly in the patient’s chart. Better yet, a 3-copy, no-carbon-required form allows 1 copy of the referral to go to the patient, 1 to be placed in your records, and 1 to go to the patient’s general dentist, oral surgeon, or periodontist. When the patient returned, did you refer him or her again; did you emphasize the importance of following through with the referral and the consequences of not doing so; and did you document these efforts in the patient’s record? You should have. What do you do when it is the third or fourth time? You know the seriousness of the situation. You try to explain it in the strongest possible terms, with professional decorum, but the patient insists that he or she will not submit to impaction surgery, exposures, or uprighting. At this point, some of you might say that this never happens to me, while others ask how does he know that these things happen to me? The point is, what do you do? Ultimately, when the case goes south, the prophecy comes to pass, and your patient is looking for someone to blame, guess what—the lawsuit gets filed. Is this a case of malicious prosecution? Can you adequately defend the negligent referral and lack of informed
American Journal of Orthodontics and Dentofacial Orthopedics Volume 122, Number 6
consent claims? If you have documented well, you probably can. If you prevail, should you then initiate a countersuit for malicious prosecution of frivolous claims? Is it all worth it? How do you nip this thorn in the bud? Remember, you can terminate the doctor-patient
Litigation, legislation, and ethics 675
relationship regardless of whether your patient is a passive or an active noncooperator if you follow certain steps. Use your already established office risk-management protocol in these situations. The bottom line is that after you show these patients the water, if they won’t drink, let them be thirsty somewhere else.
Information pertaining to litigation, legislation, and ethics will be reported under this section of the American Journal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, reader’s comments, and reprint requests may be submitted to Laurance Jerrold, DDS, JD, 82 Laurel Dr, Massapequa Park, NY 11762.