Exonerated Dr. Sues Attorney for malicious prosecution.
THE COURT OF APPEAL OF CALIFORNIA AFFIRMED THE JUDGMENT FOR THE DEFENDANT ATTORNEY. The court held, inter alia, that the plaintiff doctor failed to prove his case. The court rejected Dr. Gillian's contention that liability for medical battery should be limited to cases in which a doctor performs an operation to which the patient had not consented, such as where a clearly unauthorized surgical procedure is performed. The court found that this may not have been such a clear-cut issue in the case at bar; however, that did not mean that no reasonable attorney would have thought the patient's claim untenable. The Supreme Court of California has explained "[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win ..." The court recognized that while it may have been unlikely that the patient would have won her case against Dr. Gillian, the patient's contentions, as presented to her attorney, were arguably correct and sound enough for the attorney to proceed to sue Dr. Gillian in good faith.
PHYSICIANS WHO HAVE SUCCESSFULLY DEFENDED THEMSELVES IN MEDICAL MALPRACTICE CASES SHOULD "LOOK BEFORE THEY LEAP" BEFORE SUING. In order to establish lack of probable cause sufficient to support a suit against the patient's attorney, the burden was on Dr. Gillian to show that no reasonable attorney would have considered the patient's claims against Dr. Gilliam to be tenable. This was a tall order! A dispute over a party's knowledge or belief in the facts on which such a suit is based presents a factual question that is appropriately submitted to a jury. What facts and circumstances amount to "probable cause" is a matter of law. Whether they exist in a particular case is a matter of law. The probable cause element calls on a trial court to make an objective determination of the "reasonableness of the defendant's conduct ... "Editor's Note: The editor has represented physicians, nurses, hospitals, and other health care providers in a career spanning over 40 years. He has also represented victims of medical malpractice. It is his humble opinion that the overwhelming majority of medical malpractice attorneys, so-called, will not initiate suits unless they are convinced that they have a cases which are not only meritorious but can be supported by the testimony of competent expert medical witnesses. Attorneys failing to follow this practice subject themselves to suits. Gillian v. Taylor. No. 46815 (Cal.App. Dist.5 10/16/2006)--CA
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|Title Annotation:||D. Mitchell Taylor vs. Dr. Terry Gillian|
|Author:||Tammelleo, A. David|
|Publication:||Medical Law's Regan Report|
|Date:||Dec 1, 2006|
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