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Monday, October 14, 2019

Tenn. SC: Doctors can't pursue malicious prosecution claim

By Jessica M. Karmasek | Aug 29, 2012


NASHVILLE, Tenn. (Legal Newsline) - The Tennessee Supreme Court this week sided with a patient in a lawsuit filed by two doctors alleging malicious prosecution.

In April 2005, Tracy Allain was admitted to Vanderbilt University Medical Center, or VUMC, for a procedure.

After the procedure, the VUMC physician informed her that a guide wire had been left in her body during a previous procedure performed at Williamson Medical Center in 2004.

Allain subsequently filed a complaint in the Williamson County Circuit Court against Williamson Medical Center, Dr. Elliot Himmelfarb and Dr. Douglas York, alleging that the hospital was negligent in leaving the guide wire in her vein.

Both Himmelfarb and York answered the complaint denying liability.

Then, more than a year later, in June 2006, a VUMC physician informed Allain that VUMC was actually responsible for the presence of the wire.

A month later, Allain filed a notice of voluntary dismissal of the complaint against Williamson County Medical Center, Himmelfarb and York.

The trial court dismissed Allain's case without prejudice.

A year later, in 2007, Himmelfarb and York filed a complaint against Allain alleging that her prior lawsuit against them constituted "malicious prosecution" and abuse of process.

Allain denied the allegations and filed a motion for summary judgment, claiming the doctors could not prove the essential elements of their malicious prosecution claim.

The trial court denied Allain's motion and the state Court of Appeals affirmed.

In a unanimous opinion Tuesday, the state's high court ruled that a voluntary dismissal is not a favorable termination on the merits for purposes of a malicious prosecution claim.

"Ms. Allain's voluntary nonsuit was the first such voluntary nonsuit in this case, and the trial court's July 17, 2006 order of dismissal reflects that the dismissal is without prejudice to Ms. Allain," Justice Janice M. Holder explained.

"The trial court's order neither addressed the merits of Ms. Allain's case, nor the liability of Drs. Himmelfarb and York. Ms. Allain's suit therefore was not a dismissal on the merits."

Because the Court concluded that a voluntary nonsuit is not a favorable termination on the merits, Himmelfarb and York cannot prove an essential element of their malicious prosecution claim.

"As such, summary judgment in favor of Ms. Allain is appropriate on the malicious prosecution claim," Holder wrote in the Court's seven-page ruling.

The case was remanded to the trial court for entry of judgment in favor of Allain on the malicious prosecution claim and for a final determination on the abuse of process claim.

From Legal Newsline: Reach Jessica Karmasek by email at

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