412 Mich. 1, 312 N.W.2d 585
In May 1970 Leona Serafin entered Outer Drive Hospital for gynecological treatment where a dilatation and curettage was performed by Dr. Harold Krevsky.1 While hospitalized she was referred to plaintiff Dr. Seymour Friedman for urological consultation; he recommended and performed elective surgery on May 20, 1970 to remove a kidney stone.2 During the operation the patient began to ooze blood uncontrollably, her condition worsened despite consultations with other physicians, and she died five days later.3 An autopsy report identified the cause of death as thrombotic thrombocytopenic purpura.4
On January 11, 1972 attorneys Michael Dozorc and Ronald Golden filed a malpractice action on behalf of Anthony Serafin Jr. individually and as administrator of Leona Serafin's estate against Peoples Community Hospital Authority, Outer Drive Hospital, Dr. Krevsky, Dr. Friedman and another physician.5 The case went to trial in Wayne Circuit Court in December 1974.6 No expert testimony was presented tending to show that any defendant had breached accepted professional standards in deciding to perform the surgery or in its performance.7 At the close of the plaintiff's proofs the trial judge directed a verdict of no cause of action in favor of Dr. Friedman and the other defendants.8 The Court of Appeals affirmed and this Court denied leave to appeal.9
On March 17, 1976 Dr. Friedman commenced the present action in Oakland Circuit Court against attorneys Dozorc and Golden.10 The complaint alleged three theories of recovery: negligence in failing to conduct a reasonable investigation before filing and continuing the malpractice suit; malicious prosecution; and abuse of process.11 It further alleged that as a direct result of the defendants' conduct the plaintiff had incurred the cost of defending the prior action and appeal, an increase in annual malpractice insurance premiums, the loss of two young associates who could no longer afford the premiums, damage to his reputation as a physician and surgeon, and embarrassment and continued mental anguish.12
The defendants moved for summary judgment under GCR 1963, 117.2(1) and (3) and for accelerated judgment under GCR 1963, 116.13 The trial judge granted both motions, concluding that no actionable duty was owed to an adverse party and that the prior trial judge's refusal to award costs under GCR 1963, 111.6 established that the malpractice action had been brought with probable cause.14 The Court of Appeals affirmed the dismissal of the negligence and abuse of process claims but reversed the dismissal of the malicious prosecution claim and remanded that claim to the trial court.15 Both parties applied for leave to appeal and this Court granted leave on both applications.16
Whether an attorney owes a duty of care to an adverse party in litigation such that the adverse party may maintain a negligence action against the attorney?17
An attorney owes no actionable duty of care to an adverse party in litigation.18 Recognition of such a duty would create an unacceptable conflict of interest inconsistent with the adversary system.19 It would also unduly inhibit free access to the courts by discouraging attorneys from bringing close cases.20
No. The established facts show that attorneys Dozorc and Golden represented Anthony Serafin Jr. as adversaries to Dr. Friedman in the prior malpractice action.21 They filed the complaint without presenting expert testimony at trial.22 The complaint in the present action alleged that the attorneys owed Dr. Friedman a duty to conduct a reasonable investigation before filing and continuing the suit.23 The adversarial relationship between the attorneys and Dr. Friedman precludes any duty of care.24
The attorneys' primary obligation runs to their client.25 Any duty to the opponent would force irreconcilable choices in litigation strategy.26 Policy considerations of preserving zealous representation and free access to the courts therefore bar the negligence claim.27
The plaintiff failed to state an actionable claim for negligence.
Related opinions on this issue
Joined by Williams, J.
Justice Levin's concurrence stresses that groundless litigation constitutes a systemic problem affecting the judicial system as a whole rather than isolated injuries to individual defendants.28 He proposes that this Court adopt a court rule authorizing the judge assigned to a civil action to order payment of the prevailing party's actual expenses, including reasonable attorney fees and limited consequential damages, after a prompt post-termination hearing.29 This internal sanction mechanism would permit consistent judicial supervision, avoid the chilling effect of large jury verdicts in separate tort actions, and preserve free access to the courts for good-faith litigants.30
The approach would resolve factual questions concerning probable cause and improper purpose through judicial findings rather than jury trials.31
Whether a complaint states a cause of action for abuse of process when it alleges that attorneys filed a malpractice action to coerce a settlement but does not allege any irregular act in the use of process after issuance?32
To recover for abuse of process a plaintiff must plead and prove an ulterior purpose and an act in the use of process that is improper in the regular prosecution of the proceeding.33 Mere initiation of a lawsuit for an ulterior purpose such as coercing a settlement is insufficient without an irregular act after process has issued.34
No. The established facts show that the complaint alleged the attorneys utilized the legal process for the improper purpose of coercing a settlement from Dr. Friedman.35 The complaint identified only the filing of the summons and complaint as the act in the use of process.36 Under the rule the summons and complaint are properly employed when used to institute a civil action.37 Therefore they do not constitute an irregular act.38
The absence of any allegation of misuse after issuance defeats the abuse of process claim.39
The plaintiff failed to state a cause of action for abuse of process.
Related opinions on this issue
Joined by Fitzgerald, J.
Chief Justice Coleman concurred in the dismissal of the abuse of process claim.40 She agreed with parts II and III of the majority opinion that held the complaint failed to allege an irregular act in the use of process.41 Her partial dissent addressed only the special injury requirement for malicious prosecution and did not extend to the abuse of process analysis.42
Coleman therefore joined the majority's conclusion that the abuse of process count was properly dismissed for failure to state a claim.43
Whether Michigan law requires a plaintiff in an action for malicious prosecution of a civil proceeding to plead and prove special injury in the nature of interference with person or property?44
Michigan law requires a plaintiff in an action for malicious prosecution of a civil proceeding to plead and prove special injury in the nature of interference with person or property.45 The special injury requirement is retained to limit the circumstances in which such actions may be maintained and to avoid arming all prevailing defendants with a retaliatory weapon that could deter good-faith litigants.46
Yes. The established facts demonstrate that Dr. Friedman's complaint alleged damages consisting of the cost of defending the prior action, increased malpractice insurance premiums, loss of associates, damage to reputation, and mental anguish.47 The complaint did not allege any arrest, seizure of property, or other interference with person or property.48 Michigan precedent recognizes malicious prosecution of civil proceedings only where special injury equivalent to a seizure of property has occurred.49
The complaint therefore fails to state a claim because it lacks the required special injury element.50
Michigan law requires special injury and the plaintiff failed to plead it.
Related opinions on this issue
Joined by Fitzgerald, J.
Chief Justice Coleman dissented from the retention of the special injury requirement.51 She argued that the elements of lack of probable cause and improper motive already provide sufficient protection for bona fide litigants.52 In her view the special injury rule protects both meritorious and frivolous claims alike while leaving most victims of groundless litigation without any remedy.53
Coleman would have affirmed the Court of Appeals decision remanding the malicious prosecution claim for further proceedings.54 She emphasized that the harm caused by wrongful litigation is compensable and that the majority's approach unduly favors free access over redress for injured defendants.55
Justice Moody dissented from the portion of the opinion requiring special injury.56 He contended that the strict requirements of lack of probable cause and malice are more appropriate guardians of free access to the courts than the artificial special injury requirement.57 Moody would have remanded the case for further proceedings on the malicious prosecution claim after clarifying the standards applicable when attorneys are sued.58
He noted that the likelihood of special injury as traditionally defined has been greatly reduced by modern procedural changes abolishing most prejudgment attachments and civil arrests.59 The elements of probable cause and improper purpose, coupled with careful allocation of functions between judge and jury, strike the proper balance between access and redress.60
Whether allegations that attorneys filed and continued a malpractice action without adequate investigation and with knowledge that the claim lacked factual or legal basis are sufficient to state claims for malicious prosecution and conspiracy?61
Allegations that attorneys filed and continued a malpractice action without adequate investigation and with knowledge that the claim lacked factual or legal basis are insufficient to state a claim for malicious prosecution when the complaint fails to allege special injury.62 The conspiracy claim likewise fails because it depends on the underlying tort claims.63
No. The established facts show that the complaint alleged the attorneys acted without probable cause and with knowledge that the claims were false and for the primary purpose of inducing a settlement.64 The complaint did not plead special injury.65 Because special injury is an essential element under Michigan law the allegations are insufficient to state a claim for malicious prosecution.66 The conspiracy count, which incorporates the same allegations, likewise fails to state a cause of action.67
The plaintiff failed to state claims for malicious prosecution and conspiracy.