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June 28, 2006

A doctor gets sued for malpractice.  The plaintiffs engage in no discovery, claiming that they're trying to figure out which of the defendants were the negligent parties.  A year and a half later, the plaintiffs voluntarily dismiss their lawsuit.  They refile a year after that, against all the same defendants, again not engaging in any discovery; after they're ordered to provide expert reports, they voluntarily dismiss once more, thus ending the case.  The doctor's malpractice carrier, however, notifies him that since they had to pay twice for his defense, they're canceling his insurance.  It costs him an additional $60,000 to get insurance with another company.  Does he have a remedy, on a theory of either malicious prosecution or abuse of process?

No, says our court in Pritchard v. Algis Sirvaitis & Assoc.  The court was sympathetic to the doctor's plight, complimenting him on his "eloquent" arguments, but correctly found itself constrained by Supreme Court precedent -- specifically Robb v. Chagrin Lagoons Yacht Club -- to reject those arguments, and uphold the trial court's dismissal of the claims.

This points up one of the greater absurdities of Ohio law.  In order to make a case for malicious prosecution, you have to show not only that the proceedings were initiated without probable cause and terminated in your favor, but that your "person or property" was "seized through judicial process."  An arrest obviously qualifies as a seizure, making malicious prosecution an appropriate claim in a criminal context.  But since prejudgment attachment hardly ever happens in a civil context, the seizure requirement essentially precludes a malicious prosecution claim as a remedy in those cases.

What about abuse of process?  That seems ideally suited for baseless civil suits, except for one thing:  one of the elements of abuse of process is that the original claim was brought "with probable cause."  In short, the essence of a claim for abuse of process is that the initial plaintiffs had a meritorious claim, but brought it for ulterior reasons.

Thus, the doctor was in a bind:  for malicious prosecution, he had to show that his property was seized, and for abuse of process, he had to admit that the suit against him had merit.

This is a pretty goofy result, but that's exactly what Robb held.  The majority decided to keep the seizure requirement of malicious prosecution, fearing abolition would "unleash the floodgates" of litigation by victorious defendants seeking revenge upon their tormentors, and deciding that any remedy should come from the legislature.

I'm not a big fan of doctors, and I think the "malpractice crisis" is overhyped, but I don't think the Robb court's arguments are particularly compelling.  Two Justices dissented, pointing out that the seizure requirement was an out-moded relic.  And relying on the legislature to rewrite the law that the court itself created doesn't have much logic, either.

Of course, the aggrieved defendant always can resort to sanctions under Rule 11 or RC 2323.51.  I'll take a look at how our court has treated those in the next couple of weeks.

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