Friedman v. Dozorc

Decision Date23 November 1981
Docket NumberNo. 2,61547,Docket Nos. 61534,2
Citation412 Mich. 1,312 N.W.2d 585
PartiesSeymour FRIEDMAN, M.D., Plaintiff-Appellant, Plaintiff-Appellee, v. Peter DOZORC and Robert H. Golden, Jointly and Severally, Defendants-Appellees, Defendants-Appellants. Calendar412 Mich. 1, 312 N.W.2d 585
CourtMichigan Supreme Court

Schureman, Frakes, Glass & Wulfmeier by Charles F. Glass, Nederlander, Dodge & McCauley, P.C. by Patrick B. McCauley, Detroit, for plaintiff-appellant.

Lopatin, Miller, Bindes, Freedman & Bluestone by Sheldon L. Miller and Michael Gagleard, Detroit, for defendant Dozorc.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P. C. by Charles T. McGorisk and Christine D. Oldani, Detroit, for defendant Golden.

Ivan E. Barris, David F. DuMouchel, Detroit, for the State Bar of Michigan.

Bodman, Longley & Dahling by Joseph A. Sullivan, David W. Hipp, Detroit, for The Detroit Surgical Society.

Kerr, Russell & Weber by A. Stewart Kerr, John L. Shoemaker, Curtis J. De Roo, Detroit, for The Michigan State Medical Society.

Daniel G. Wyllie, Bowden V. Brown, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, for Herbert D. Schunk, M.D., amicus curiae.

Hillman, Baxter & Hammond by Joel M. Boyden, Grand Rapids, Bushnell, Gage & Reizen by George R. Bushnell, Jr., Southfield, for amicus curiae.

John M. Burkoff, Pittsburgh, Pa., for Michigan Association of Neurological Surgeons, Michigan Orthopedic Society, Michigan Academy of Plastic Surgeons, Michigan Society of Urologists and Michigan Chapter, American College of Surgeons.

LEVIN, Justice.

The plaintiff is a physician who, after successfully defending in a medical malpractice action, brought this action against the attorneys who had represented the plaintiffs in the former action. Dr. Friedman sought under a number of theories to recover damages for being compelled to defend against an allegedly groundless medical malpractice action. The trial court granted the defendants' motions for summary and accelerated judgment.

The Court of Appeals affirmed in part and reversed in part. We granted leave to appeal to consider what remedies may be available to a physician who brings such a "countersuit".

We hold that:

(1) The plaintiff has failed to state an actionable claim on a theory of negligence because an attorney owes no duty of care to an adverse party in litigation;

(2) The plaintiff has failed to state an actionable claim on a theory of abuse of process because there is no allegation that defendants committed an irregular act in the use of the process issued in the prior case;

(3) The plaintiff has failed to state an actionable claim on a theory of malicious prosecution because his complaint did not allege interference with his person or property sufficient to constitute special injury under Michigan law.

We affirm the decision of the Court of Appeals dismissing plaintiff's negligence and abuse of process claims, and reverse its decision to remand plaintiff's malicious prosecution claim to the trial court for further proceedings.


Leona Serafin entered Outer Drive Hospital in May, 1970, for treatment of gynecological problems. A dilatation and curettage was performed by her physician, Dr. Harold Krevsky. While in the hospital, Mrs. Serafin was referred to the present plaintiff, Dr. Friedman, for urological consultation. Dr. Friedman recommended surgical removal of a kidney stone which was too large to pass, and the operation was performed on May 20, 1970. During the surgery, the patient began to ooze blood uncontrollably. Although other physicians were consulted, Mrs. Serafin's condition continued to worsen and she died five days after the surgery. An autopsy was performed the next day; the report identified the cause of death as thrombotic thrombocytopenic purpura, a rare and uniformly fatal blood disease, the cause and cure of which are unknown.

On January 11, 1972, attorneys Dozorc and Golden, the defendants in this action, filed a malpractice action on behalf of Anthony Serafin, Jr., for himself and as administrator of the estate of Leona Serafin, against Peoples Community Hospital Authority, Outer Drive Hospital, Dr. Krevsky and Dr. Friedman, as well as another physician who was dismissed as a defendant before trial. In December, 1974, the case went to trial in Wayne Circuit Court. No expert testimony tending to show that any of the defendants had breached accepted professional standards in making the decision to perform the elective surgery or in the manner of its performance was presented as part of the plaintiff's case. The judge entered a directed verdict of no cause of action in favor of Dr. Friedman and the other defendants at the close of the plaintiff's proofs. The judge subsequently denied a motion for costs brought by codefendant Peoples Community Hospital Authority, pursuant to GCR 1963, 111.6. The Court of Appeals affirmed 1 and this Court denied leave to appeal. 2

Dr. Friedman commenced the present action on March 17, 1976 in Oakland Circuit Court. The following excerpt from his complaint summarizes his theories of recovery and the injuries he allegedly sustained as a result of the initiation and prosecution of the malpractice action:

"13. That as a direct and proximate result of the negligence, malicious prosecution and abuse of process of these Defendants, the Plaintiff, SEYMOUR FRIEDMAN, M.D., has endured grievous damages, including, but not limited to, the following: the cost of defending the aforesaid cause and the appeal, an increase in his annual malpractice insurance premiums for so long as he practices medicine, the loss of two young associates from his office who could no longer afford to pay the increased malpractice insurance premiums thereby requiring him to work excessive hours without relief, damages to his reputation as a physician and surgeon, embarrassment and continued mental anguish."

The defendants moved for summary judgment under GCR 1963, 117.2, subds. (1) and (3), and for accelerated judgment under GCR 1963, 116. The judge granted both motions in November, 1976, concluding that (1) plaintiff had failed to state a cause of action for negligence because there was "no relationship other than that of adversaries" between the defendants and plaintiff and hence there was "no duty owing"; and (2) the refusal of the trial judge in the prior action to find that the claims advanced by the defendants on behalf of their client were unreasonable and should render them responsible under GCR 1963, 111.6 for litigation expenses of their opponents established that the prior action was brought with probable cause and therefore precluded a subsequent action for malicious prosecution or abuse of process.

The Court of Appeals affirmed the dismissal insofar as it was based on failure to state a claim on the theories of negligence and abuse of process. 3 However, it reversed the dismissal of the cause of action sounding in malicious prosecution and remanded this cause to the trial court, declaring that an adverse ruling on a defendant's motion under GCR 111.6 did not bar a subsequent malicious prosecution action and that the facts surrounding the filing and continuation of the prior action were in dispute.

This Court granted leave to appeal on both the plaintiff's application from that portion of the Court of Appeals decision affirming the dismissal of the causes of action sounding in negligence and abuse of process and on the defendants' application to cross-appeal from that portion of the decision reversing the dismissal of the cause of action for malicious prosecution. 4


Plaintiff and amici in support urge this Court to hold that an attorney owes a present or prospective adverse party a duty of care, breach of which will give rise to a cause of action for negligence. We agree with the circuit judge and the Court of Appeals that an attorney owes no actionable duty to an adverse party.

Plaintiff and amici argue that an attorney who initiates a civil action owes a duty to his client's adversary and all other foreseeable third parties who may be affected by such an action to conduct a reasonable investigation and re-examination of the facts and law so that the attorney will have an adequate basis for a good-faith belief that the client has a tenable claim. 5 Plaintiff contends that this duty is created by the Code of Professional Responsibility and by the Michigan General Court Rules. 6

Plaintiff further argues that an attorney's separate duty under the Code of Professional Responsibility to zealously represent a client is limited by the requirement that the attorney perform within the bounds of the law. 7 Acting within the bounds of the law is said to encompass refraining from asserting frivolous claims; this charge upon the profession imposes upon counsel a duty to the public, the courts and the adverse party to conduct a reasonable investigation. Plaintiff contends that since the duty to investigate already arises from the attorney-client relationship under the code and court rules, recognition of a cause of action for negligence will impose no new obligation on the attorney.

Defendants counter that an attorney cannot be liable to third parties for acts that result from client representation in the absence of fraud or collusion. An attorney's only actionable legal duty is owed to his or her client. An attorney cannot owe a duty to the client's legal opponent because of the very duty that is owed to the client. An attorney owing one duty to a client and another duty to the client's adversary, each of whom have adverse interests, would be faced with an irreconcilable conflict of interest.


In a negligence action the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides after assessing the competing policy considerations for and against recognizing the asserted duty. 8 Dean Prosser has said that " 'duty' is a...

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