Friedman v. Dozorc

Brief Fact Summary. The Court of Appeals of Michigan dismissed a doctor’s causes of action for negligence and abuse of process in connection with the litigation of a medical malpractice action against him. The doctor appealed.

Synopsis of Rule of Law. An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.

Facts. The Plaintiff, Doctor Friedman (Plaintiff), performed surgery on a Mrs. Serafin and in the course of surgery she began to hemorrhage uncontrollably. She died five days later and the Defendant attorneys, Dozorc and Golden (Defendants), acting on behalf of Anthony Serafin, Jr., brought suit against the doctor for wrongful death. No evidence was submitted at trial establishing professional negligence and the trial judge directed a verdict in the Plaintiff’s favor. The Plaintiff then brought suit against the Defendants alleging malicious prosecution, negligence and abuse of process. The trial court dismissed the actions and the court of appeals affirmed, but reversed with regards to the action for malicious prosecution. In this action, the Plaintiff argued that the Defendants owed him a duty to reasonably investigate and examine facts to establish that their client had an actionable claim.

Issue. Do attorneys have a duty to adequately investigate claims in order to protect the opposition from a frivolous lawsuit and, if failing to do so, open themselves up to a malicious prosecution claim?

Held. No. The court concluded that imposing a duty on an attorney to protect an opposition plaintiff from frivolous lawsuit by extending his duty to adequately investigate claims would present a conflict of interests and would be detrimental to free access to the courts.

Dissent. The dissent takes the view that the majority does not go far enough in safeguarding access to the courts, and takes particular issue with its attention to the special injury issue: “[T]his Court’s concern should be for preserving free access to the courts for meritorious claims. The majority, by protecting meritorious and frivolous claims alike, has denied free access to the courts for all those who have suffered harm but no “special injury” from wrongful litigation.”

Discussion. Breach of duty is the defendant’s failure to act as a reasonable person would have under the same or similar circumstances. More simply, breach is unreasonable conduct by the defendant. The threshold issue in any negligence case is whether the defendant owed a duty to the plaintiff in the first place. The Friedman court begins with a standard analysis concerning this issue: “In a negligence action the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides after assessing the competing policy considerations for and against recognizing the asserted duty.” Following from this premise, “Only if the law recognizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to liability for negligent conduct.” This delineation of duty takes on a different patina within the context of litigation, and the court noted, “Assuming that an attorney has an obligation to his client t
o conduct a reasonable investigation prior to bringing an action, that obligation is not the functional equivalent of a duty of care owed to the client’s adversary. Such a duty would be inconsistent with basic precepts of the adversary system.” Further, and more specifically, the element of reliance is the converse of duty, and in this context, the court explained, “The absence of reliance distinguishes a third party’s relationship with a member of the legal profession who represents that party’s adversary from a third party’s relationship with a member of another profession whose negligent conduct may affect him.”
The court then notes the usual requirement for malicious prosecution is special injury – and notes in passing “No decision of the Court holds that an action for malicious prosecution of civil proceedings can be maintained absent special injury, whatever the precise boundaries of that concept.” But as plaintiff may make no such allegation, the court focuses on the responsibility of an attorney in vigorously advocating for his/her client: “The attorney’s obligation is to represent his client honorably and ethically, and he may, without being guilty of malicious prosecution, vigorously pursue litigation in which he is unsure of whether his client or the client’s adversary is truthful, so long as that issue is genuinely in doubt.” Along these same lines, the court observes, ” An attorney’s evaluation of the client’s case should not be inhibited by the knowledge that perseverance may place the attorney personally at risk; the next fact or the next medical opinion may be the one that makes
the case, and such developments may occur even on the eve of trial.” Thus, the court concludes, “An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not liable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim.” Accordingly, the court affirmed the judgment of the court of appeals, but reversed their remand of the malicious prosecution action, and dismissed all claims against the Defendants.