Tarver v. Wills, 69833

• Citation: 330 S.E.2d 896,174 Ga.App. 550
• Decision Date: 11 April 1985
• Docket Number: No. 69833,69833
• Parties: TARVER v. WILLS et al.
• Court: United States Court of Appeals (Georgia)

Page 896

330 S.E.2d 896

174 Ga.App. 550

TARVER v. WILLS et al.

No. 69833.

Court of Appeals of Georgia.

April 11, 1985.

P. Russell Tarver, pro se.

Samuel A. Fowler, Jr., Thomson, John P. Willis, for appellees.

BIRDSONG, Presiding Judge.

We granted interlocutory appeal in this case to determine whether the trial court erred in refusing summary judgment to the appellant attorney in this suit by the appellee doctor for the attorney's having "maliciously" filed a medical malpractice case. The doctor's motion for summary judgment in the medical malpractice suit was met with no objection or response and was granted. This suit followed. The trial court, in denying summary judgment to the appellant attorney, ruled "that at most this action is one for malicious use of process and that a very close issue remains as to whether the plaintiff has sustained some special damage which would entitle him to a recovery." Held:

1. The trial court correctly held that this suit is at most one for malicious use of process, there being no cause of action here for malicious abuse of process or malicious interference with property. Taylor v. Greiner, 247 Ga. 526, 277 S.E.2d 13; Taylor v. Greiner, 156 Ga.App. 663, 275 S.E.2d 737. Nor, even if it had been specifically plead, is there a cause of action against the attorney for negligence in filing the malpractice suit; the overriding public policy guarding free access to the courts and the fact that the attorney's legal duty is to his own client, dictate that the attorney owed no legal duty to the appellee doctor to investigate fully the client's claim prior to filing suit (Schunk v. Zeff, 311 N.W.2d 322, 109 Mich.App. 163), or to avoid filing a suit which he knew or should have known was frivolous (see Spencer v. Burglass, 337 S.2d 596 (La.App. 4th Cir.1976); Fee v. Sullivan, 379 So.2d 412 (Fla. 4th DCA 1980). Such allegations would be addressable in a suit for malicious use of process (see Schunk v. Zeff, supra, 311 N.W.2d p. 324, 109 Mich.App. 163) under an allegation of lack of probable cause.

2. Appellant contends the trial court erred in denying his motion for summary judgment because the appellee doctor did not establish any special damages.

It is well settled in Georgia that an action for malicious use of process must contain essential elements: (1) malice, (2) want of probable cause, and (3) the proceeding complained of must have terminated in favor of the complaining party. Georgia Veneer, etc., Co. v. Florida Nat. Bank, 198 Ga. 591(2), 609, 32 S.E.2d 465; Scott v. Liberty Mut. Ins. Co., 168 Ga.App. 815, 310 S.E.2d 772. A fourth essential element is proof that the complainant was arrested, had property seized, or incurred "special damages." Taylor v. Greiner, supra, 247 Ga. 526, 277 S.E.2d 13; Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 108, 70 S.E.2d 734; Troup County Elec., etc., Corp. v. Traylor, 170 Ga.App. 121, 316 S.E.2d 568; Taylor v. Greiner, supra, 156 Ga.App. 663, 275 S.E.2d 737.

The appellee doctor claims as damages: lost income for time spent in defending the medical malpractice lawsuit; lost income spent in trying to prevent the lawsuit; expenses of paying a secretary to prepare correspondence to prevent and defend the lawsuit; increased medical malpractice premiums; incurrence of higher rating with malpractice insurance carriers; damage to professional reputation in the community; and emotional strain, embarrassment, loss of sleep and anxiety for having been charged with negligence and with having caused the death of a patient. However, we have established that attorney fees and other expenses incurred in defending the lawsuit are not recoverable special damages (Troup County Elec. Corp., supra; Osburn v. Norris, 165 Ga.App. 118, 299 S.E.2d 170; Johnson v. Monumental Properties, 141 Ga.App. 151, 232 S.E.2d 644; Dixie Broadcasting Corp., supra). Emotional strain, embarrassment, loss of sleep, anxiety, humiliation, and damage to reputation or being held up to public scorn and ridicule are not recoverable special damages (Troup County Elec. Corp., supra; Greer v. State Farm Fire etc., Co., 139 Ga.App. 74, 78, 227 S.E.2d 881; Price v. Fidelity Trust Co., 74 Ga.App. 836, 41 S.E.2d 614; Dixie Broadcasting Corp., supra; Pike v. First Nat. Bank, Rome, 99 Ga.App. 598, 606, 109 S.E.2d 620). Likewise, lost income for time spent defending the malpractice suit and trying to prevent the suit are not recoverable as special damages for, like attorney fees and other expenses, loss of time is a factor which necessarily results in all suits prosecuted to recover for like causes of action. Troup County Elec. Corp., supra; Greer, supra; Price, supra.

Actual increase in malpractice insurance premiums because of an unsuccessful malpractice lawsuit, may or may not be "such as necessarily results in all suits prosecuted to recover in like causes of action" (Swain v. American Surety Co., 47 Ga.App. 501, 171 S.E. 217), but it is not recoverable special damage. The Texas Court of Civil Appeals has held, on the same contention, that the alleged increase in insurance premiums "is more analogous to a prepayment for attorney fees and expenses incurred in defending medical malpractice cases which are an incident of defending any civil suit." Moiel v. Sandlin, 571 S.W.2d 567, 571 (Tex.Civ.App.1978). Moreover, the appellee Dr. Wills gave as evidence in this case that his insurance premium had increased as a result of the glut of medical malpractice cases generally; the Texas court in Moiel v. Sandlin, supra, held such an allegation is insufficient since the increase was not necessarily attributable to the particular malpractice suit filed against Moiel. Appellee Wills further testified that he had been given a higher rating by the state doctors' insurance company (Medical Association of Georgia Mutual, "MAG") which would have cost higher premiums than his regular insurer; but no reason had been given him for the higher cost of MAG insurance, although he believed it was because of all the suits that had been filed against him. Thus, there is no evidence that high rate was attributable solely to the malpractice suit involved in this case.

Finally, if what appellee alleges is true, the insurance increase is an unavoidable incident of a medical malpractice case, and to declare it "special damage" would make every such lawsuit problematical. The overriding public policy of maintaining free access to the courts, as a fundamental component of our judicial system, requires that "courts should be open to litigants for the settlement of their rights without fear of p...