Malicious Prosecution Tort Applies to Administrative Proceedings, according to the Journal of American Physicians and Surgeons

TUCSON, Ariz., July 23, 2021 /PRNewswire/ -- Malicious prosecution is a tort that has the goal of preventing abuse of the legal system. Originally applied to criminal prosecution, it was later expanded to civil suits. With the escalating role of quasi-judicial administrative proceedings, with penal-like consequences, it has also been applied there, according to Lawrence Huntoon, M.D., Ph.D., writing in the summer issue of the Journal of American Physicians and Surgeons.

Dr. Huntoon has frequently written on the international phenomenon of sham peer review: malicious actions taken against a physician for reasons unrelated to quality of patient care. One common motive is to remove an economic competitor.

"Malicious prosecution," he writes, "is also sometimes referred to as a dignatory tort because it injures the human dignity of the victim. This is particularly applicable in the case of sham peer review where the physician's reputation, honor and core identity as a physician are damaged along with ruin or end of the physician's medical career."

Dr. Huntoon reviews the history of the use of this tort, which dates back to a 1932 case involving the delicensure of an insurance agent. While malicious prosecution may be viewed as a "disfavored tort," favorable precedents have been set in several states.

In general, there are six elements that must be established: (1) the prior institution of an action against the plaintiff, (2) aided or abetted by the defendant, which (3) terminated in the plaintiff's favor, was (4) brought without probable cause for (5) a malicious purpose, and (6) caused damage to the plaintiff.

There is a high bar to meet, but satisfying the elements is possible, as shown in a 2020 Texas case brought by Dr. Madhavan Pisharodi, who had been victimized by a sham hospital peer review.

"The claim of malicious prosecution represents a relatively new option in the tort toolbox for physicians, which can be used in an attempt to hold wrongdoers accountable for their actions," Dr. Huntoon concludes. "Given the horrendous lifetime damage caused by sham peer review, the dignatory tort of malicious prosecution seems particularly appropriate."

The Journal of American Physicians and Surgeons is published by the Association of American Physicians and Surgeons (AAPS), a national organization representing physicians in all specialties since 1943.

SOURCE Association of American Physicians and Surgeons (AAPS)

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