Fee, Parker & Lloyd, P. A. v. Sullivan

• Decision Date: 30 January 1980
• Docket Number: No. 77-1499,77-1499
• Citation: 379 So.2d 412
• Court: Florida District Court of Appeals
• Parties: FEE, PARKER & LLOYD, P. A. and Otis R. Parker, Jr., Appellants, v. John B. SULLIVAN, M. D. and James I. Terry et al., Appellees.

Page 412

379 So.2d 412

FEE, PARKER & LLOYD, P. A. and Otis R. Parker, Jr., Appellants, v. John B. SULLIVAN, M. D. and James I. Terry et al., Appellees.

No. 77-1499.

District Court of Appeal of Florida, Fourth District.

Jan. 30, 1980.

Larry Klein and Adams, Sullivan, Coogler, Watson & Smith, and Stephen C. McAliley of Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellants.

Ellis S. Rubin, Miami, for appellee, John B. Sullivan, M. D.

MOORE, Judge.

This is an appeal and cross-appeal from a final judgment entered after a jury verdict in a malicious prosecution action. The action was brought by John Sullivan, a medical doctor, against his former patient, James Terry, and the patient's lawyers, the firm of Fee, Parker and Lloyd, P. A., and Otis Parker, individually. Dr. Sullivan alleged that Terry and Parker had maliciously prosecuted a medical malpractice action against him for his treatment of Terry. That medical malpractice action was voluntarily dismissed prior to trial. The essence of Dr. Sullivan's complaint here was that Terry and Parker did not have probable cause to sue him for medical malpractice.

The jury returned a verdict in favor of Sullivan in the amount of $175,000 against Parker and his law firm and found Terry not liable. After the trial court ordered a remittitur in the amount of $100,000, final judgment was entered for Sullivan for $75,000 plus costs against Parker and his firm. They appeal and Sullivan cross-appeals.

Appellants contend the proof was insufficient to establish the elements of a malicious prosecution action. They argue that Sullivan was required to prove that appellants lacked probable cause for commencing the malpractice action and failed to do so. Agreeing with this contention, we reverse and find it unnecessary to address Sullivan's cross-appeal.

The Florida Constitution provides:

§ 21 Access to Courts The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

Art. I, § 21, Fla.Const.

Our concept of justice and the system which we have created for its administration necessarily dictates a public policy which encourages the settlement of private disputes through access to the courts. Such access, however, is not without limitation. When the court is used to promote an unjustifiable cause, an injustice is perpetrated upon one's adversary whose only recourse is, again, in court through the tort of malicious prosecution. Thus, one who maliciously sues another without probable cause is subjected to answering for his own wrong.

A lawyer must represent his client zealously within the bounds of the law and professional ethics. As an advocate he must accept the facts as he finds them and render his advise consistent with those facts and his knowledge of the law. He is therefore charged with making a reasonable investigation in determining the facts before initiating a suit on his client's behalf. If he then has a reasonable, honest belief that his client has a tenable claim, he enjoys the same freedom of access to the court as does his client. Any more stringent standard would effectively stifle the peaceful resolution of disputes and deny the very justice the courts are intended to administer.

It is well settled in Florida that an action for malicious prosecution lies where there is a concurrence of the following elements: (1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff. Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Tatum Brothers Real Estate and Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Burchell v. Bechert, 356 So.2d 377 (Fla. 4th DCA 1978).

With these principles in mind, we turn now to the facts available to appellants at the time suit was filed against Dr. Sullivan in the malpractice action.

Mr. Terry suffered a Monteggia fracture of the forearm, consisting of a fracture of the ulna and a dislocation of the head of the radius. Terry went to Dr. Sullivan, an orthopedic surgeon, who performed a closed reduction (the manipulation of the bones back into place) and placed a cast on the arm on June 23, 1970. Although X-rays were taken of the arm immediately after this procedure, no subsequent X-rays were taken until August 13, at which time Dr. Sullivan discovered that the closed reduction was unsuccessful. He then performed an open reduction on August 17 and surgically inserted an intramedullary rod into the bone to stabilize the fracture. The patient's wrist was not involved and Dr. Sullivan did not intend to insert the pin into the wrist. The pin insertion was performed without the use of an X-ray machine. X-rays are normally taken prior to closing the incision to insure that the rod does not extend too far. X-rays were taken the day after the surgery and Dr. Sullivan discovered the rod was 11/2 inches too long and extended into the wrist. Despite this discovery, nothing was done for about six weeks. Thereafter, Dr. Sullivan performed a second operation to shorten the rod. After this procedure, and with his arm still in pain and with no apparent healing of the fracture, Terry went to Dr. Stalker, another orthopedic surgeon. After initially consulting with this doctor and being advised that further treatment was necessary, Mr. Terry consulted with Mr. Fee, an associate of Mr. Parker, for advice regarding his will and his medical treatment by Dr. Sullivan.

During this conference, Terry reiterated the above sequence of events and produced the X-rays and other pertinent records. Although he did not express an interest at that time in bringing a malpractice action against Dr. Sullivan, he did indicate he wanted to recover for the expenses incurred as a result of the hospitalizations and surgical procedures. Fee relayed this information to Parker who examined the X-rays which showed the rod extending into the wrist area, and reviewed the hospital records which indicated that no X-rays of Terry's arm had been taken until the day after the open reduction.

After consulting with his attorney, Mr. Terry returned to Dr. Stalker, who performed a third surgical procedure resulting in a successful bone graft. It was after this surgery that Parker consulted with Dr. Stalker regarding Sullivan's prior treatment of Terry. The statements made at this conference are in conflict. Stalker denied at trial that he expressly told Parker that Sullivan's treatment fell below the standard of care for the community; however, as a result of the conference and all other evidence, Parker was clearly of that opinion. When asked if Dr. Stalker told him Dr. Sullivan had done something wrong, Parker responded, "I'm sure he did." Mr. Fee, a witness to the conference, testified that when Parker told Stalker that Terry felt the treatment he received from Sullivan was below standard, Stalker replied, "I tend to agree."

In his trial testimony, Dr. Stalker admitted he told Parker it was unusual for a rod to protrude into the wrist area, although he did not specifically mention the word "malpractice". He also admitted he informed Parker that a physician should X-ray the patient's arm before closing the incision when inserting a rod to stabilize the fracture. Stalker further stated that the performing of a closed reduction on June 23 with no X-ray from that date (except for the one immediately after the reduction) until August 13, 1970, would fall below the normal standard of care. The recommended procedure when such a closed reduction is performed is to take serial X-rays after the reduction in order to see if the fracture remains stabilized.

After conferring with Dr. Stalker, Mr. Parker researched the law which correctly indicated to him that expert medical testimony is not always required to establish medical malpractice.

Mr. Parker then advised Dr. Sullivan by correspondence of his client's claim. Parker received no answer from Dr. Sullivan, but his correspondence prompted settlement negotiations with representatives of Dr. Sullivan's malpractice insurance carrier. The insurance carrier felt the claim had merit, but could not settle it without Dr. Sullivan's permission, which was refused.

Thereafter, on Mr. Terry's approval, suit was instituted on July 8, 1971. The case was never tried. At Terry's request, it was voluntarily dismissed immediately prior to trial. Dr. Sullivan subsequently filed the present malicious prosecution action.

Obviously, Mr. Parker did not know what Dr. Sullivan's trial testimony would be at the time the malpractice suit was filed, but that testimony confirms the information which was within the knowledge of Mr. Parker and Mr. Terry when suit was instituted. This testimony also bears directly on the overall insufficiency of plaintiff's evidence as presented in the plaintiff's case. See Pickard v. Maritime Holdings Corporation, 161 So.2d 239 (Fla. 3rd DCA 1964).

With respect to inserting the rod into the wrist area, Dr. Sullivan testified on direct examination as follows:

QUESTION: Getting into 1970, and Mr. Terry, did you put the rod in too long?

ANSWER: Yes, I did.

QUESTION: Why?

ANSWER: Because at that point in time there was no X-ray available to take and check the length of that rod, which was my usual practice; . . .

QUESTION: Doctor, is there any reason why you didn't take an X-ray, if you say that that was your usual procedure?

ANSWER: I would have been happy to take an X-ray if the machine was there; I wouldn't be here today.

QUESTION: Why wasn't the machine there?

ANSWER: The hospital "goofed".

QUESTION: How?

ANSWER: They didn't have the machine there; that was their responsibility.

QUESTION: Is it standard practice to...