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Berlin v. Nathan





APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


This case involves another of the many retaliatory actions which physicians in Illinois and other States who have been sued for malpractice are filing against both the original plaintiff and the original attorney. In this case the original plaintiff's husband was sued as well. In accord with the other cases in Illinois and elsewhere, we hold that the complaint, which failed to allege either malicious intent or special damages, failed to state a cause of action. We also hold that the court correctly dismissed the physician's claim against the husband for barratry.

The pleadings reveal that on October 1, 1973, Harriet Nathan entered the Skokie Valley Community Hospital complaining of an injury to the little finger of her right hand. An X ray was taken under the supervision of Dr. Berlin, a radiologist on the staff of the hospital. Dr. Berlin read the film as revealing a dislocation of the finger. Dr. Meltzer then applied treatment appropriate for a dislocation. In November, another X ray was taken. This X ray disclosed that there had been a chip fracture of that finger.

On September 11, 1975, about two weeks before the statute of limitations would have run, Harriet Nathan, through her attorneys, Benjamin and Shapiro, filed suit against Dr. Berlin, Dr. Meltzer and the hospital alleging various acts of malpractice in the taking of the X rays and the making of the diagnosis. Dr. Berlin thereupon filed a suit against Mr. Nathan (at whose specific instance and request, he alleged, the malpractice suit was specifically brought), Mrs. Nathan and her attorneys Benjamin and Shapiro. In count I of that suit he alleged that all four defendants owed him a duty to refrain from willfully and wantonly bringing suit against him without having reasonable cause to believe that he had been guilty of malpractice; that the defendants instead, although having no cause whatsoever to believe he had been guilty of malpractice, had instituted suit with reckless disregard as to the truth or falsity of the allegations. Specifically, Dr. Berlin in count I complained that Benjamin and Shapiro had acted willfully and wantonly and without probable cause since they had not, before filing suit, obtained an opinion from another physician as to the quality of the X rays and the correctness of their interpretation thereof; and moreover, that the ad damnum ($125,000), which bore no reasonable relationship to the injuries allegedly sustained, was devised to intimidate Dr. Berlin and might affect his ability to procure malpractice insurance at reasonable rates. Dr. Berlin in count I specifically alleged that Harriet Nathan brought suit willfully and wantonly and without probable cause in that she at no time prior to suit obtained from another physician an opinion as to the quality of the X rays, the correctness of their interpretation or an opinion whether the condition of which she complained resulted from malpractice by either Dr. Berlin or Dr. Meltzer. Dr. Berlin further alleged that the Nathans had been told by another orthopedic surgeon, prior to the institution of the suit, that no malpractice had occurred but that they willfully and wantonly incited and instituted the suit in retribution for real or imagined discourtesies to them by Dr. Meltzer. Finally, Dr. Berlin complained that as a result of these actions his reputation in his profession had been attacked, he had suffered mental anguish, he had been caused to devote much time to the defense of the malpractice suit and, that because of the institution of the suit, he would be required to pay increased premiums for his malpractice insurance coverage. In count II, Dr. Berlin claimed that Gilbert Nathan, knowing the malpractice suit to have no merit but intending to extort money either from Dr. Berlin or his malpractice insurance company, wickedly and willfully caused the suit to be brought and caused Harriet Nathan to prosecute said suit, contrary to the Illinois barratry statute. Ill. Rev. Stat. 1975, ch. 13, par. 21.

In count III, Dr. Berlin alleged that the attorneys, Benjamin and Shapiro, had a duty to the plaintiff not to file the malpractice lawsuit without reasonable evidence to support the allegations therein since, as attorneys, they were particularly aware of the time and expense that litigation causes and could foresee the harm an unfounded lawsuit could cause to the reputation and mental well-being of a physician; that by filing the complaint without reasonable cause, the attorneys fell below the standard of care required of attorneys in the performance of their professional duties in good faith and in a legal manner and were negligent towards Dr. Berlin.

Count II was dismissed by the trial court upon Gilbert Nathan's motion before trial. This suit was consolidated with the original suit for discovery and for trial.

On May 27, 1976, the original malpractice suit was voluntarily dismissed, with prejudice, on the motion of Harriet Nathan. The action on the countersuit then proceeded to trial. At the close of the trial the jury was not instructed as to the elements involved in a suit for malicious prosecution but were solely instructed as follows: as to count I that the plaintiff claimed that the conduct of the defendants was willful and wanton in that a medical malpractice complaint was filed against him when there was no reasonable cause to believe that such a cause of action existed and that the defendant's act was a proximate cause of his damages (all of which the defendants denied); as to count II (originally count III) that the plaintiff claimed that he sustained damages while exercising ordinary care and the defendants Benjamin and Shapiro were negligent in filing and prosecuting a lawsuit without taking proper steps to determine that there was reasonable cause to believe any cause of action existed and that this was a proximate cause of his damage (all of which the defendants denied). The jury was also instructed that in filing a lawsuit an attorney must possess and apply the knowledge, skill, care and regard for potential defendants that is ordinarily used and shown by reasonably well-qualified attorneys in the locality. And finally, the jury was instructed that the defendants had a duty before and at the time of the occurrence to refrain from willful and wanton conduct which would endanger the rights of the plaintiff.

The jury found all four defendants guilty of willful and wanton misconduct proximately causing injury to Dr. Berlin and awarded Dr. Berlin $2,000 in compensatory damages and $6,000 in punitive damages.

All the parties have appealed.


The amicus curiae has argued that the jury verdict should be upheld since the jury properly found defendant guilty of malicious prosecution. We disagree since we find that the plaintiff's complaint was not sufficient to state a claim for malicious prosecution against any of the defendants, and the instructions to the jury certainly did not submit a claim for malicious prosecution.


• 1-3 Tort litigants, such as the Nathans, may be held liable for malicious prosecution. (25 Ill. L. & Prac. Malicious Prosecution § 1 et seq. (1956).) However, since the law does not look with favor on such suits (Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Carlyle v. Carlyle (1960), 28 Ill. App.2d 90, 170 N.E.2d 790; Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 372 N.E.2d 685), there are strict limitations on the availability of such suits. Suits for malicious prosecution cannot be maintained in Illinois unless the plaintiff alleges and proves that the plaintiff in the original tort action acted maliciously and without probable cause. (T.E. Hill Co. v. Contractors' Supply & Equipment Co. (1911), 249 Ill. 304, 94 N.E. 544; Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 372 N.E.2d 685); that the prior cause terminated in the plaintiff's favor (Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 372 N.E.2d 685); and that some special injury not necessarily resulting in any and all suits prosecuted to recover for like causes of action was suffered. (Schwartz v. Schwartz (1937), 366 Ill. 247, 8 N.E.2d 668; Lyddon v. Shaw (1978), 56 Ill. App.3d 815, 372 N.E.2d 685; Pantone v. Demos (1978), 59 Ill. App.3d 328, 375 N.E.2d 480.) It is clear that in this case neither of the last two elements was pleaded and, even if we liberally construe the complaint to allege that the suit was brought maliciously and without probable cause by the Nathans, that issue was not submitted to the jury.


• 4 Special damages as defined by the Illinois Supreme Court in Schwartz v. Schwartz are those not necessarily resulting in any and all suits prosecuted to recover for like causes of action. The only damages that Dr. Berlin claimed he suffered are (1) his reputation in his profession has been attacked; (2) he has suffered mental anguish; (3) he has been forced to spend time on the defense; (4) he will be required to pay increased insurance premiums. The first three items of damage claimed are so patently common to all litigation that no discussion is warranted. We agree, moreover, with the Illinois court in Pantone that an increase in insurance premiums, while perhaps not a necessary result of the litigation, is, assuming the allegation is anything more than pure speculation, an item necessarily incident to all malpractice cases and not therefore amounting to damages suffered specially by Dr. Berlin as distinct from other physicians who have been defendants in malpractice suits.

The defendant and amicus curiae both, however, contend that the requirement of special damages is unreasonable and should be abolished. First of all, we have no authority to overrule the Illinois Supreme Court. (Chicago Title & Trust Co. v. Guaranty Bank & Trust Co. (1978), 59 Ill. App.3d 362, 375 N.E.2d 522.) But in any event, we agree with O'Toole v. Franklin (1977), 279 Ore. 513, 569 P.2d 561, and Ammerman v. Newman (D.C. App. 1978), 384 A.2d 637, which rejected precisely the same argument. As the latter court stated (384 A.2d 637, 641):

"Appellant effectively concedes that he has suffered no injury that would not normally occur as a consequence of a malpractice suit, and appears to recognize that the authority in this jurisdiction does not support his claim. He seeks to avoid the application of the rule by arguing that it is inequitable in the context of medical malpractice actions. He contends that the fact that such actions are particularly harmful to the reputations and livelihood of physicians calls for a modification of the rule with respect to them. The purpose of the special injury rule, however, is to strike a balance between allowing free access to the courts> for the vindication of rights without fear of a resulting suit, and the undue exercise of such right. Davis v. Boyle Bros., D.C. Mun. App., 73 A.2d 517, 521 (1950). Appellant's argument, if accepted, would upset that delicate balance. The nature of his profession, given its profound impact on the lives of those with whom he deals, cannot be allowed to insulate him from potential liability. In order to maintain a free access to the courts> by persons with grievances who might otherwise be restrained from seeking redress because of their fear of liability should they fail, the special injury rule has consistently been upheld.

The limitation is sound. When disputes reach the litigious stage, usually some malice is present on both sides. Friendly tort suits are not common. Nor is existence or want of probable cause always easy to determine until the event of the litigation is known. Some margin of safety in asserting rights, though they turn out to be groundless and their assertion accompanied by some degree of ill-will, must be maintained. Otherwise litigation would lead, not to an end of disputing, but to its beginning, and rights violated would go unredressed for fear of the danger of asserting them. [Melvin v. Pence, 76 U.S. App. D.C. 154, 157, 130 F.2d 423, 426 (1942).]"


• 5 The complaint against the Nathans failed to allege that the malpractice action had been terminated in plaintiff's favor, obviously for the simple reason that it had not been terminated when the complaint was filed, although it was terminated before the counterclaim was actually tried. Nevertheless, if we were to permit such an action under these circumstances, we would create the incongruous situation of permitting the filing of a suit before the cause of action existed or the statute of limitations commenced to run. Babb v. Superior Court (1971), 3 Cal.3d 841, 479 P.2d 379, 92 Cal.Rptr. 179.


• 6 Basically, the complaint against the Nathans merely alleges that their conduct was willful and wanton. Willful and wanton conduct does not amount to malice. (Compare Myers v. Krajefska (1956), 8 Ill.2d 322, 134 N.E. 277.) However, a suit brought for an improper motive may be malicious (Carlyle v. Carlyle (1960), 28 Ill. App.2d 90, 170 N.E.2d 790), and Dr. Berlin did allege that the Nathans brought suit solely in retribution for the real or imagined discourtesies of Dr. Meltzer. But, the plaintiff clearly abandoned any attempt at trial to prove a cause of action against the Nathans for malicious prosecution since in the instructions submitted to the jury, the jury was solely instructed as to willful and wanton misconduct and was not instructed as to the elements of a claim for malicious prosecution. The burden was on the plaintiff to submit the issue (35 Ill. L. & Prac. Trial ...

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