Mass. Supreme Court overturns dismissal in doctor's malicious prosecution case

John O'Brien Jan. 5, 2007, 6:02am

SPRINGFIELD, Mass. - In an order issued the day after Christmas, the Massachusetts Supreme Judicial Court overturned the dismissal of a malicious prosecution claim brought by a neurologist against an insurance company.

Dr. Paul Chervin, of Woburn, now will have his case against Travelers Insurance Company heard in Superior Court. He says the company had no right bring a medical malpractice claim, which was dismissed, against him.

"If the summarized evidence is accepted by a jury, they could reasonably find that the defendant filed its subrogation action with an improper purpose," the Court wrote.

Edward Mosher and Travelers agreed to a lump-sum settlement of $775,000 on a Workers' Compensation claim in 1999 after Mosher had been treated by Chervin.

Mosher was in a vehicle accident after he had apparently mixed medication prescribed by Chervin and alcohol. Another neurologist said that Mosher was a heavy alcohol user with seizures related to his alcohol use, and his accident occurred on his first day of work after a week of heavy drinking while on vacation.

Eventually, Travelers filed a medical malpractice claim against Chervin, saying that the doctor did not adequately warn Mosher not to mix alcohol and medication.

Mosher repeatedly denied complying with Travelers' suit.

The Court's order cites a statement from Ellen Emory of Travelers' major case unit from Feb. 2, 2001, that says, "Agree that successful pursuit of medical malpractice claim is iffy at best and non-cooperation of (Mosher) rules out likelihood of successful recovery. Subrogation should be closed."

The suit was filed anyway, and Chervin claims the company only was trying to force a settlement.

A Superior Court judge said Travelers had enough reason to file the claim because one of its lawyers had consulted with an unidentified expert.

The Supreme Court overturned that ruling, and the matter now appears headed for a jury.

Chervin says he was damaged because he experienced a loss of referrals from other doctors and his reputation was damaged. Also, he was required to disclose the suit, which caused a delay in connection with obtaining his Vermont medical license. His attorneys fees were in excess of $6,700.

He filed his suit against Travelers on Aug. 27, 2001.

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