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Malicious prosecution refers to
a criminal or civil case that is filed without an adequate basis and for
an improper purpose, such as harassing the defendant, ruining another
person’s reputation, or to knowingly place blame on someone other than
the actual wrongdoer. If a prosecutor files such a case and the charges
are dismissed, the defendant can sue for malicious prosecution and seek
financial damages. The law that allows a malicious prosecution suit is
aimed at preventing and addressing abuse of the legal process.
The roles in a peer review "hearing", deny due process to the
defendant and offers immunity to the "expert witnesses" who can speak
with impunity. Articles mentioned below site some of the sides of
this equation.
Court Says Failure to Drop Case
Puts Lawyer on Hook
Mike McKee
The Recorder
Lawyers who discover they're pressing a meritless suit now have a
stronger reason than ever to pull out while they can.
On Wednesday, a divided panel of Los Angeles' 2nd District Court of
Appeal ruled that attorneys could be liable for malicious prosecution if
they pursue a suit after discovery reveals no viable claim.
The 2-1 ruling directly contradicts an 11-month-old decision by another
panel of the same court that says a lawyer can't be liable for malicious
prosecution so long as there was probable cause to sue based on facts
known to him at the time he filed.
"It makes little sense to hold attorneys accountable for their knowledge
when they file a lawsuit, but not for their knowledge the next day,"
Justice Richard Mosk of Division Five wrote. "There is no logic in
immunizing attorneys from liability for malicious prosecution simply
because the attorneys think there is probable cause when they file the
lawsuits, if shortly thereafter they discover the lawsuits have no merit
but they continue to prosecute them."
Justice Orville Armstrong concurred, but Justice Margaret Grignon
dissented from that part of the ruling, saying she agreed with her
Division Seven colleagues' contrary holding last year in Swat-Fame
Inc. v. Goldstein, 101 Cal.App.4th 613.
In Zamos v. Stroud, 03 C.D.O.S. 5831, Woodland Hills, Calif.,
lawyer Jerome Zamos sued Van Nuys, Calif., attorney James Stroud for
malicious prosecution after a former client, Patricia Brookes, hired the
Stroud & Do partner in a fraud suit against Zamos. Brookes had sued
Zamos in 1997, claiming he had made many misrepresentations in settling
-- for $250,000 -- a suit arising from the foreclosure of her house.
Among Brookes' claims were that Zamos had vowed to continue to represent
her against non-settling defendants, and that he would have her house
returned to her.
Stroud and two others Zamos sued -- Carl Taylor and Nancy Peterson, who
were witnesses to Brookes' claims -- filed an anti-SLAPP motion in which
they argued that Zamos could not show a reasonable probability of
success in the malicious prosecution action. Los Angeles County Superior
Court Judge Stephen Petersen granted the motion.
The appeal court majority, however, found that trial transcripts from
the foreclosure case indicated that Zamos had made none of the promises
claimed by Brookes, and that Stroud knew her statements were false.
"That conduct," Mosk wrote, "could demonstrate 'a subjective intent to
deliberately misuse the legal system' and thus constitutes malice."
Though Mosk said Judge Petersen erred in granting Stroud's anti-SLAPP
motion, he found relief was properly granted for the two witnesses,
Taylor and Petersen.
In disagreeing with their colleagues' in Swat-Fame, the majority
justices relied partly on dictum in the California Supreme Court's 1990
ruling in Pacific Gas & Electric Co. v. Bear Stearns & Co., 50
Cal.3d 1118. In that case, Mosk wrote, the high court cited with
approval, "albeit in dictum," Section 674 of the Restatement Second of
Torts, which says that anyone who "takes an active part in the
initiation, continuation or procurement of civil proceedings against
another is subject to liability."
Zamos couldn't be reached for comment Wednesday, but Stroud expressed
deep disappointment, saying the trial record doesn't support liability
for him or his firm.
"There was evidence in the record that Mr. Zamos had made these
representations," he said, "and the fact that there were transcripts
didn't necessarily contradict that, because these were representations
made outside the court. I had witnesses that said Mr. Zamos wasn't
telling the truth."
Stroud said he will ask the appeal court panel to reconsider its ruling
and if turned down try the Supreme Court.
"You can start a case based on X and Y and Z," he said, "and if X turns
out not to be correct, or Y turns out not to be correct or Z turns out
not to be correct, this court says you have to dump your client or jump
off the ship. And I don't think the Supreme Court means that's what the
law is to be."
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Articles on Expert Witness
Statement on the Physician
Expert Witness
Fox Guarding the Henhouse
Defamation award could
chill peer review
Medical Peer Review and Immunity Under HCQIA After
Poliner
Poliner sought declaratory judgment that the defendants were
not entitled to immunity under HCQIA. Poliner alleged that the
defendants were motivated by something other than a reasonable
belief that their actions would further the care of the hospital’s
patients. He claimed that the animosity toward him and the desire to
eliminate him as an economic competitor resulted in a conspiracy to
eliminate him from practicing at the hospital. He further claimed
that the reviews were less than thorough, that they were biased,
incomplete, filled with errors, and that the defendants did not make
reasonable efforts to obtain the facts. Lastly, Poliner claimed that
he was not afforded adequate notice and hearing procedures.
Osuagwu v. Gila Regional Medical Center
New Mexico federal district
court 2012
PRO-SE DOCTOR WINS SUMMARY JUDGMENT OVERCOMING HCQIA IMMUNITY/
Dr. Osuagwu presented evidence that Gila Regional failed to follow its
own bylaws and failed to provide him due process in permanently
suspending his privileges without meeting the requirements of HCQIA for
immunity. One of the defendants, Dr. Romillard, a non -practicing
gynecologist advised the hospital’s peer review committee as to why Dr.
O’s privileges should be suspended. He also was a member of the “fair
hearing panel” which eventually heard Dr. O’s case. He also served as
the prosecutor bringing the case before the panel and the closest thing
to a medical expert on the case. Non of the practicing OB/GYN doctors
who reviewed the cases were called and Dr. O had no opportunity to cross
examine or confront them. Dr. Romillard also reported Dr. O to the New
Mexico Medical Board, which reviewed the cases submitted to it by Dr.
Romillard and concluded that while the documentation in the cases might
have been improved upon, his care was not careless, bad or unreasonable
in the circumstances.
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