Dr. Hazel I. Holst contends that attorney Harry J. Oxman named her as a defendant in a lawsuit brought by Roderick T. Powell arising from a nasal surgery performed in 1970 even though — kind of a big gap in the case — “there was absolutely no record of Dr. Holst ever treating Mr. Powell”. So she sued Oxman for various counts including abuse of process, extortion and racketeering. Now U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania has dismissed her complaint, ruling that 1) Holst could not prove that the case eventuated in a verdict or dismissal in her favor — a prerequisite for an abuse of process claim — because the case had apparently been diverted to alternative dispute resolution and resolved there without a “verdict”; 2) she could not prove racketeering because she made no showing that the lawyer followed a pattern or practice of filing cases of this sort, and — this is my favorite — 3)
that Holst had also failed to allege a valid claim of abuse of process because her extortion claim was limited to an allegation that Oxman had initiated the suit in the hopes of inducing settlement discussions [he had in fact demanded $200,000, per her account].
“This tort requires a ‘perversion of legal process after it has begun in order to achieve a result for which the process was not intended….” [the judge wrote]
(emphasis added). Should we infer that enabling $200,000 demands against doctors under these circumstances is the sort of purpose for which the process was intended? (Shannon P. Duffy, “RICO Suit Against Lawyer Dismissed due to Lack of ‘Enterprise'”, Legal Intelligencer, Mar. 23).
2 Comments
An attorney friend explained matters this way.
“Surrick is a good judge and no nonsense in his approach to most things. The real problem is that the RICO claim against the lawyer was itself almost an abuse of process and a way to try to get this into a federal court. The Eastern District and the Third Circuit are pretty restrictive in their approach to allowing civil RICO cases to proceed. The statute was aimed at organized crime–not to be an alternative to every tort case.
On the other hand, today the certificate of merit requirement seems to have fixed the major problem here, and I know of at least 2 suits pending against lawyers for Wrongful Use of Civil Proceedings, which usually is misnamed abuse of process. The problem with that allegation in the present case is that the doctor’s original lawyer did not paper the disposition of the underlying case properly, and the Court had really nothing before it to show that the doctor satisfied the requirements for this tort. The gist is not that the plaintiff lost the suit, but that there was no probable cause to bring it in the first place. A motion for Summary Judgment was filed by the doctor, and was DENIED. That means that some Court felt there was at least a prima facie case to submit to a jury. That is usually enought to defeat the process case.”
This is the most cogent explanation of this case I have seen. It is also quite instructive to future defendants about lawyer accountability tactics. What my good friend is not saying, is that in Pennsylvania, there is a high hurdle to proving misuse of civil procedure, namely, malice. One must prove that the lawyer knowingly filed a case without merit. This is nearly impossible.
Relevantly to the present if not to the above case, the certificate of merit was mentioned. The latter is required only in medical malpractice, not in other tort claims. A certificate should be easy to get for a few $100’s, and a little expert shopping. It has eradicated even the now remote possibility of filing a complaint or claim for the filing of frivolous lawsuit against a lawyer. Lawyers will use the certificate as
a 100% effective shield. “I am not an expert in
medicine. What do I know to contradict my medical
expert?” This was the reply when I complained to a
member of the Disciplinary Board, they never ever
enforce Rule 3.1, the rule mandating filing only
claims with merit.
One thinks one has won a tort reform battle, one has very effectively immunized the lawyer.
Legislation to permit the discovery of now confidential non-testifying expert opinion would remedy that. If 11 experts could not support the case, but one could, the real standard of care is described by the non-testifying experts.
I am now afraid of what reverse effect the lawyer might come up with.