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."

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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