Friedman v. Dozorc Sup. Ct. Mich.,

412 Mich. 1, 312 N.W.2d 585 (1981)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Leona Serafin was treated for gynecological problems. A dilatation and curettage was performed by her physician, Dr. Harold Krevsky. She was referred to Dr. Friedman, (P) for urological consultation. P 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. Mrs. Serafin's condition continued to worsen, and she died five days after the surgery. The cause of death as thrombotic thrombocytopenic purpura, a rare and uniformly fatal blood disease, the cause and cure of which are unknown. Attorneys Dozorc and Golden (Ds) filed a malpractice action. Ds presented no expert testimony. The judge entered a directed verdict of no cause of action in favor of D, and the judge subsequently denied a motion for costs brought by codefendant Peoples Community Hospital. The Court of Appeals affirmed and this Court denied leave to appeal. D commenced the present action on March 17, 1976, in Oakland Circuit Court for negligence, malicious prosecution and abuse of process Ds. For damages P alleged the cost of defending the lawsuit, 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.' Ds moved for summary judgment. The judge granted the motion. It reasoned that P had failed to state a cause of action for negligence because there was 'no relationship other than that of adversaries' between Ds and P and hence there was 'no duty owing'; and the refusal of the trial judge in the prior action to find that the claims advanced by Ds 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. 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. Ds appealed.