Friedman v. Dozorc
312 N.W.2d 585 (1981)
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Rule of Law:
An attorney owes no duty of care to an adverse party in litigation, and a claim for malicious prosecution of a civil proceeding requires the plaintiff to plead and prove a special injury, defined as an interference with their person or property beyond the ordinary costs and annoyances of a lawsuit.
Facts:
- Leona Serafín entered a hospital for gynecological problems under the care of Dr. Krevsky.
- Dr. Friedman, a urologist, was consulted and subsequently performed surgery to remove a kidney stone from Mrs. Serafín on May 20, 1970.
- During the surgery, Mrs. Serafín began to bleed uncontrollably.
- Five days after the surgery, Mrs. Serafín died.
- An autopsy identified the cause of death as thrombotic thrombocytopenic purpura, a rare and uniformly fatal blood disease.
- Attorneys Dozorc and Golden, on behalf of Mrs. Serafín's estate, filed a medical malpractice action against Dr. Friedman and others.
- In the malpractice trial, the plaintiff's attorneys presented no expert testimony showing that Dr. Friedman had breached any professional standards of care.
Procedural Posture:
- Attorneys Dozorc and Golden, representing the estate of Leona Serafín, sued Dr. Friedman for medical malpractice in Wayne Circuit Court, a trial court.
- The trial court judge entered a directed verdict of no cause of action in favor of Dr. Friedman.
- The Michigan Court of Appeals, an intermediate appellate court, affirmed the directed verdict.
- The Michigan Supreme Court, the state's highest court, denied leave to appeal in the malpractice case.
- Dr. Friedman then sued attorneys Dozorc and Golden in Oakland Circuit Court, a trial court, alleging negligence, abuse of process, and malicious prosecution.
- The trial court granted summary judgment for the defendant attorneys, dismissing all of Dr. Friedman's claims.
- Dr. Friedman, as appellant, appealed to the Michigan Court of Appeals.
- The Court of Appeals affirmed the dismissal of the negligence and abuse of process claims but reversed the dismissal of the malicious prosecution claim, remanding it for further proceedings.
- Both parties were granted leave to appeal to the Michigan Supreme Court.
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Issue:
Does a claim for malicious prosecution of a civil proceeding require the plaintiff to plead and prove a special injury, such as an interference with their person or property?
Opinions:
Majority - Levin, J.
Yes, a claim for malicious prosecution of a civil proceeding requires the plaintiff to plead and prove a special injury. Michigan law adheres to the 'English rule,' which limits such actions to cases involving an arrest, seizure of property, or other special damage not typically incurred in defending a lawsuit. The court declined to recognize a negligence claim against an opposing party's attorney, reasoning that creating such a duty would cause an unacceptable conflict of interest and undermine the adversary system by chilling zealous advocacy and free access to the courts. The court also rejected the abuse of process claim because merely initiating a lawsuit does not constitute an improper use of process. The public policy of encouraging free access to the courts and avoiding a cascade of retaliatory litigation outweighs the need to provide a tort remedy for every wrongfully filed suit.
Concurrence - Levin, J.
This opinion proposes an alternative remedy to a separate tort action for groundless litigation. Instead of a new lawsuit, the court could adopt a rule allowing the judge in the original proceeding to hold a post-termination hearing. In this hearing, the judge could order the losing party or their attorney to pay the prevailing party's actual expenses, including reasonable attorney's fees and limited consequential damages, if it is found the action was wrongfully initiated or defended without probable cause and for an improper purpose. This approach would be more efficient, consistent, and less likely to intimidate good-faith litigants than a separate tort action for malicious prosecution.
Concurring-in-part-and-dissenting-in-part - Coleman, C.J.
No, a claim for malicious prosecution should not require a special injury. The special injury requirement is an arbitrary filter that protects frivolous claims just as much as meritorious ones when no such injury is present. The focus should be on compensating the harm from wrongful litigation, and the elements of lack of probable cause and improper motive are sufficient safeguards to protect bona fide litigants. The majority's fear of 'more litigation' ignores the real harm caused by groundless lawsuits and fails to provide a remedy for those who suffer reputational and financial damage that does not meet the narrow definition of special injury.
Dissent - Moody, Jr., J.
No, a claim for malicious prosecution should not require a special injury. The 'English rule' and its special injury requirement are anachronistic, as legal procedures like civil arrest and pre-judgment attachment that cause such injuries are now rare. Harm to a person's reputation or business from a vexatious lawsuit is a real injury that deserves a remedy. The 'American rule,' which allows a malicious prosecution claim without special injury, should be adopted because the strict requirements of proving lack of probable cause and malice are sufficient to protect attorneys and litigants' free access to the courts.
Analysis:
This decision solidifies Michigan's adherence to the restrictive 'English rule' for malicious prosecution, making successful countersuits by defendants in civil cases exceptionally difficult. By rejecting a negligence cause of action against an opposing attorney, the court strongly affirmed the principles of the adversary system, prioritizing an attorney's undivided loyalty to their client and the public policy of ensuring free access to courts. The ruling effectively channels all claims for wrongful litigation into the narrow tort of malicious prosecution, which, with the special injury requirement, shields attorneys from liability for all but the most egregious cases involving direct interference with a person or property.
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