Lyddon v. Shaw
| Decision Date | 23 January 1978 |
| Docket Number | No. 77-268,77-268 |
| Citation | 372 N.E.2d 685,56 Ill.App.3d 815,14 Ill.Dec. 489 |
| Parties | , 14 Ill.Dec. 489 Donald W. LYDDON, Sr., Plaintiff-Appellee, v. Robert J. SHAW and Douglas R. Trembath, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Gilbert, Powers, Mateer & Erickson, Bruce C. Erickson, Rolland J. McFarland, Rockford, for defendants-appellants.
Williams, McCarthy, Kinley, Rudy & Picha, Richard R. Haldeman, Rockford, for plaintiff-appellee.
Is an attorney who files a medical malpractice action against a physician, without attempting to determine whether or not there is any evidence supportive of the claim, liable in turn to the physician for legal malpractice? The case at bar presents this question, and a number of others, which are of first impression.
The case is before us on an interlocutory appeal under Supreme Court Rule 308 (Interlocutory Appeals by Permission) (Ill.Rev.Stat.1975, ch. 110A, par. 308), from the trial court's denial of defendant Robert J. Shaw's motion to dismiss the plaintiff's complaint. The plaintiff, Dr. Donald W. Lyddon, Sr., is a board certified orthopedic surgeon on the staff of Swedish American Hospital. His three count complaint alleged that on January 9, 1974, defendant, Douglas R. Trembath, entered the emergency room of the hospital, complaining that he had twisted his ankle playing basketball. Dr. Lyddon was the attending physician in the emergency room; he examined Trembath and caused two X-rays to be taken. The complaint states that Dr. Lyddon read the X-ray films, "correctly and properly interpreted them as normal except for soft tissue swelling around the right ankle", and diagnosed Trembath's condition as a sprained ankle. According to the complaint, Dr. Lyddon applied an ice pack and an elastic bandage, and instructed Trembath to seek further medical attention, if the symptoms persisted for more than seven to ten days; that was the "first, last, and only occasion" that Dr. Lyddon treated or examined Trembath, and he is alleged to have exercised "at least that degree of skill and care ordinarily possessed by other physicians".
Each of the three counts of the complaint presents a slightly different theory of recovery, based upon these allegations. Count I is premised upon the theory that Shaw and Trembath had "a duty to refrain from wilfully and wantonly bringing suit against him and involving him in litigation without having reasonable cause to believe" that Dr. Lyddon had been guilty of malpractice. Counts II and III are directed solely against attorney Shaw. Count II is based upon the Illinois Barratry Statute, 1 and Count III asserts that attorney Shaw, as an officer of the court, had a duty not only to his client, but also to Dr. Lyddon, to refrain from filing the lawsuit without "any reasonable evidence to support the allegations of medical incompetence", and that by filing such an action without reasonable cause, and "continuing to maintain the litigation", Shaw failed to exercise "that degree of skill or care required by an attorney-at-law * * * to perform his professional duties and obligations in a professional manner". All three counts contained a prayer for unspecified "actual" and punitive damages.
On appeal, attorney Shaw's argument (Trembath has not filed a brief) is, in sum, that the only cause of action recognized by the courts of this State allowing a recovery for the wrongful filing of a lawsuit is that of malicious prosecution, that Dr. Lyddon's complaint fails to state a cause of action for malicious prosecution, and that the trial court therefore erred when it denied Shaw's motion to dismiss the complaint.
Under Illinois law, a complaint for malicious prosecution must allege five distinct elements: (1) institution and prosecution of judicial proceedings by the defendant; (2) lack of probable cause for those proceedings; (3) malice in instituting the proceedings; (4) termination of the prior cause in plaintiff's favor, and (5) suffering by plaintiff of some special injury, beyond the anxiety, loss of time, attorney fees, and necessity for defending one's reputation, which are an unfortunate incident of many (if not most) lawsuits. (E. g., Madda v. Reliance Insurance Co. (1977), 53 Ill.App.3d 67, 70, 11 Ill.Dec. 29, 368 N.E.2d 580.) Here, it is unquestioned that Dr. Lyddon's complaint fails to allege the element of the favorable termination of the prior proceeding. The only allegation of special damages is the allegation that he "has, or will be, required to pay increased premiums for his medical malpractice insurance regardless of the outcome of" the litigation. This allegation, however, is in the nature of a conclusion of the pleader, and no facts are alleged demonstrating a causal connection between the allegedly frivolous lawsuit and any actual or potential increase in Dr. Lyddon's insurance premiums. There has been no allegation whatsoever of malice on the part of Trembath; as to attorney Shaw, the element of malice may reasonably be inferred from the allegation that Shaw knew the action against Dr. Lyddon was without merit, but intended to harass Dr. Lyddon and "force a compromise settlement". In any event, Dr. Lyddon has conceded that the complaint does not state a cause of action for malicious prosecution. 2
Instead, Dr. Lyddon has premised his complaint on a more general, and familiar concept of tort liability: "duty, violation, damage, and proximate cause." In Dr. Lyddon's view, attorney Shaw's duty was established not only by the Barratry Statute, but also by ethical precepts prohibiting an attorney from filing a suit on behalf of a client " * * * when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." (Disciplinary Rule 7-102(A)(1) Illinois Code of Professional Responsibility (1970)). Dr. Lyddon cites no express basis for Trembath's alleged duty to refrain from "wilfully and wantonly" filing a baseless lawsuit against him, apparently attempting to base Trembath's liability upon the general concept of foreseeable harm. Dr. Lyddon goes on to argue that the filing of a malpractice action against him, without reasonable cause, constituted a clear violation of the duty owed him by Shaw and Trembath and was therefore actionable, regardless of whether or not the conduct fell within the comparatively narrow ambit of a cause of action for malicious prosecution, since article I, section 12 of the Constitution of the State of Illinois (1970) provides that: "(e)very person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. * * * ".
We hold at the outset that the failure to plead the outcome of the malpractice action against Dr. Lyddon would constitute a fatal defect in Dr. Lyddon's complaint, even if he were correct in his contention that malicious prosecution is not the sole cause of action available to a party who is put to the expense and vexation of defending a baseless lawsuit. The considerations underlying the requirement that a complaint for malicious prosecution plead the favorable outcome of the prior cause, are, in effect, broader than the rule itself. As the court observed in Babb v. Superior Court of Sonoma County (1971), Cal., 92 Cal.Rptr. 179, 479 P.2d 379, the filing of an action seeking damages for the wrongful filing of a malpractice suit, prior to the termination of the malpractice action, would tend to drive a wedge between the malpractice plaintiff and his attorney; the attorney may be diverted from properly preparing the client's malpractice case by the necessity for readying his own defense to the physician's countersuit, and may, in some cases, even be forced to withdraw from the malpractice action. Further, allowing the physician's "wrongful litigation" suit to be maintained prior to the termination of the malpractice action against the physician, would deprive the court hearing the physician's claim of perhaps the best evidence on the question of whether there was any reasonable basis for the malpractice action, e. g., the transcript of the evidence adduced in support of the malpractice claim. Such a holding would carry with it problems of inconsistent findings and verdicts, and of collateral estoppel, which would be wholly avoided if the physician were required to plead...
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