The tort of malicious prosecution applies to administrative proceedings, according to Journal of American Physicians and Surgeons
TUCSON, Arizona., July 23, 2021 / PRNewswire / – Malicious prosecution is a criminal offense intended to prevent abuse of the legal system. Initially applied to criminal proceedings, it was later extended to civil proceedings. With the growing role of quasi-judicial administrative procedures, with quasi-penal consequences, it has also been applied there, according to Laurent Hunton, MD, Ph.D.., writing in the summer issue of Journal of American Physicians and Surgeons.
Dr Huntoon has frequently written about the international phenomenon of false peer review: malicious actions taken against a doctor for reasons unrelated to the quality of patient care. A common motive is to eliminate an economic competitor.
“Malicious prosecutions,” he writes, “are also sometimes called a crime in the name of dignity because they violate the human dignity of the victim. This is particularly applicable in the case of a bogus peer review where the reputation, honor and fundamental identity of the physician as a physician are damaged with the 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 concerning the refusal to practice an insurance agent. While malicious prosecution can be considered a “disadvantaged offense”, favorable precedents have been set in several states.
In general, six elements need to be established: (1) the prior filing of an action against the plaintiff, (2) with the help or encouragement of the defendant, which (3) ended in favor of the plaintiff , was (4) brought without probable cause for (5) malicious intent, and (6) caused damage to the plaintiff.
There’s a high bar to meet, but meeting the elements is possible, as a Texas 2020 case presented by Dr. Madhavan Pisharodi, who had been the victim of a peer review at a fictitious hospital.
“The allegation of malicious prosecution is a relatively new option in the tort toolkit for physicians, which can be used to attempt to hold wrongdoers accountable,” concludes Dr. Huntoon. “Considering the horrific lifelong damage caused by the mock peer review, the dignity offense of malicious prosecution seems particularly apt.”
the Journal of American Physicians and Surgeons is published by the Association of American Physicians and Surgeons (AAPS), a national organization representing physicians of all specialties since 1943.
SOURCE Association of American Physicians and Surgeons (AAPS)