On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Before Judges King, Havey and A.m. Stein.
The opinion of the court was delivered by
Plaintiff, Narni R. Giri, M.D., a neurosurgeon, appeals from a judgment of dismissal in his malicious civil prosecution action against Rutgers Casualty Insurance Company (Rutgers), an automobile liability insurance carrier. Dr. Giri's suit was based on Rutgers' unsuccessful medical malpractice suit against him purportedly brought on behalf of its insured, Jean Ann Affrunti. The malpractice action, according to Dr. Giri, caused him to lose his
malpractice insurance temporarily and required him to close his practice for a period of time.
At the Conclusion of Dr. Giri's case, the Judge ruled as a matter of law that his alleged damages -- lapsed malpractice insurance, interruption of his surgical practice, and consequent loss of income -- did not constitute a "special grievance," a key element of his cause of action. We conclude that the Judge erred and reverse.
On August 5, 1985 Affrunti injured her lower back in an automobile accident. On September 4, 1985 Dr. Giri performed surgery on her. Affrunti called on Rutgers to pay Dr. Giri's fee ($2,900) per the Personal Injury Protection (PIP) feature of her auto policy. Rutgers refused and also refused to pay the $10,000 hospital bill.
On May 28, 1986 Affrunti filed a complaint against Rutgers to recover her PIP benefits for Dr. Giri's surgery. On July 23, 1986 Rutgers filed an answer and a third-party complaint against Dr. Giri. In its answer Rutgers claimed an obligation to pay only "reasonable and necessary" medical expenses. Rutgers claimed, in its action against Dr. Giri, that he operated for a herniated disc at the level below the actual herniated disc. Rutgers' complaint accused Dr. Giri of "negligence, carelessness and/or recklessness" in allegedly operating at the wrong level and demanded damages for "contribution and indemnity." Rutgers also claimed that Affrunti might "in the future have to undergo surgery again to properly repair the herniated disc that was not properly operated on originally."
Nonetheless, the patient's complaints cleared up quickly postoperatively and no new surgery was required. She had no postoperative complaints or disability according to her testimony at this malicious prosecution trial in July 1992. Dr. Giri's brief on appeal tells us:
The operation which Dr. Giri performed was a left L5-S1 hemilaminectomy and foraminotomy. That operation was a complete success and all of the very serious symptoms which Ms. Affrunti was experiencing prior to the surgery disappeared.
Due to the fact that Ms. Affrunti had a rare congenital condition whereby she had an extra vertebrae, the incision was at a level other than was intended. However, Dr. Giri was able to accomplish the decompression of the impinged nerve by removing the lamina rather than the disc.
When Dr. Giri was served with the malpractice complaint, he sent it to Medical Inter-Insurance Exchange (MIX), his malpractice carrier. MIX received the complaint on September 8, 1986. About a month later, MIX's underwriting committee voted to "non-renew" Dr. Giri's coverage "based upon chronically adverse claim experience." On November 14, 1986 MIX notified Dr. Giri that on February 1, 1987 it would not renew his policy due to expire on January 31, 1987.
Meanwhile, in November 1986 Dr. Giri had moved successfully to dismiss Rutgers' third-party malpractice complaint against him for failure to state a claim under R. 4:6-2(e). Rutgers did not appeal. On January 29, 1987 Dr. Giri sued MIX in the Chancery Division for wrongful refusal to renew his coverage and for damages. He claimed that MIX failed to comply with ...