*1 v BCBSM MICHIGAN SHIELD OF AND BLUE v BLUE CROSS MATTHEWS 1). 7, (Calendar Decided Argued No. October No. 104011. Docket post January 21, Rehearing 1230. 1998. denied D.D.S., charged Matthews, Circuit Court in the Oakland Robert E. pretenses to defraud over one with intent of false with three counts filing health care claims of false and two counts hundred dollars Hospital. Following surgeries performed involving at Sinai dental Ziem, J., acquitted court, defend- trial, Frederick C. bench beyond a rea- ant, holding guilt established had not been that his by charges initiated the Oakland had been doubt. Criminal sonable by police following investigation County prosecutor the state on an by Shield and Blue submitted Blue Cross basis of information surgi- involving billing irregularities Michigan regarding technical acquit- by his Dr. Matthews. After claims submitted cal assistance prosecution tal, brought action a malicious Dr. Matthews court, H. Wayne against John Blue Cross. The Court Circuit Hausner, J., verdict motion for directed denied the defendant’s jury plaintiff. judgment The Court for the on a verdict and entered JJ., Cavanagh Appeals, P.J., and N. J. Lambros, Wahls, (Docket opinion per unpublished No. curiam in an affirmed appeals, was a 145934). to whether there limited The defendant probable question requiring be submit- cause to fact the issue jury. to the ted joined opinion Chief Justice Mallett, In Justice Boyle, an by by Supreme and Justices Brickley, Weaver, Taylor, Kelly, held,-. Court presenting plaintiff an issue of meet the burden of failed to prosecution. jury regarding criminal cause for fact to the prosecution Michigan, at the sole discretion is initiated In evidentiary prosecutor. for the claim that the no basis There was agents. prosecution the defendant’s or maintained was initiated sup- police independent investigation the state An conducted ported probable crime had been committed. to believe that a cause probable cause, dispute trial and the There was no evidence and deter- the defendant a verdict for court should have directed a matter of law. was established as mined that 456 Mich prove plaintiff asserting 1. A malicious must that the prosecution, defendant has initiated a that the criminal criminal proceedings plaintiff’s favor, private per- terminated son who instituted or lacked maintained cause, pur- and that the action was undertaken malice or a with *2 pose i.e., plaintiff bringing justice, than offender other the the prima showing agents make a must facie that the defendant’s probable plaintiff lacked cause to believe that the had committed a prosecutor might crime. Whether the a have made different deci- sion irrelevant. is prosecutor public prosecution. 2. A not liable for malicious private Against person, plaintiff prove private per- a must the that prosecution prosecu- son instituted or that maintained the and the person tor acted on the basis of information that submitted probable Independent which did not constitute cause. exercise of prosecutorial private discretion establishes that the defendant did prosecution. case, developed not initiate the In this the information prosecutor the officer was to the submitted who authorized grounds probable of a issuance warrant on that established cause plaintiff felony. Thus, that believe the had committed a Blue prosecution not Cross did initiate or maintain the as a matter of proba- disputing law. Because there was no for there basis that was prosecution,
ble for cause the the trial court should have resolved question the as a matter of law. requires application 3. Determination of cause of an objective test, viewing the facts as would a reasonable clearly under the circumstances. Cross Blue had cause to plaintiff probably believe that the had made false claims for reim- surgical bursement. Alteration of the records was itself sufficient to suspicions any prudent businessperson. This, raise combined surgeons pro- with the advice of other oral that Dr. Matthews had permission vided no services and did have not their to make a con- trary representation, permitted the conclusion Dr. that Matthews probably felony. presented had committed a No evidence was that prosecution the was other initiated than at the sole discretion of independent investigation. on the basis anof concurring, Justice stated that because evidence Cavanagh, supported Blue Cross and Blue Shield’s assertion that Dr. Matthews improperly billing teaching technical assistance at a hospital, manual, proba- as term is defined the 1979 or 1984 bring charges against ble cause existed to him. and Reversed remanded. v Bellamy, Vande Vusse & Gilchrist, Male,
Vander Bellamy (by Cafferty, B. Frederick P.C. plaintiff. Cafferty), for the S. Michael Perry O’Leary, O’Leary, Jacobs, Mattson, & Jacobs), (by the defendant. John P. Mason, PC. appeal granted to decide leave to J. We Boyle, that erred its determination the trial court whether prosecution plaintiff, action, sus- in this malicious jury presenting submissible tained the burden for criminal issue of fact plaintiff prosecution. meet hold failed to that We conclusion to the the trial court’s burden contrary was error. Michigan, sole dis- is initiated
In evidentiary prosecutor. was no There cretion was initiated basis for claim *3 by independent agents. An or maintained defendant’s by police supported investigation conducted state com- that a crime had been cause believe dispute probable was no evidence to mitted. There a have directed ver- cause, and the trial court should
for the defendant and determined that dict a of law. was established as matter
i in the claim of mali- the issues involved Because might are or turn on which issues cious analysis begin we our with the fol- controverted, be lowing undisputed facts. specializing a in Matthews, dentist
Dr. Robert acquitted charged and in a bench was orthodontics, pretenses intent to false with trial of three counts of 456 Mich Opinion Court defraud over one hundred dollars1 and two counts of per- false care filing involving surgeries health claims2 Hospital. formed at Sinai alleged The had paid by that Dr. had Matthews been Blue Cross for he perform services did not or for which he was not entitled to claim reimbursements. Dr. had billed technical assistance under (tsa) regular business classification for Blue physi- Cross providers3 cian for participation in oral orthognathic surgeries performed by at Hospital Sinai dif- several
1 Any person who, cheat, by with intent to defraud or shall. . . or pretense, any person any money . . . false . . . obtain from thing ... or other valuable or service shall be of the value [which] $100.00, person guilty felony, pun of more than such shall be of a by imprisonment prison years ishable in the state not more than 10 $5,000.00. 750.218; or fine of not more than MSA [MCL 28.415.] person present (1) A shall not make or or cause to be or made presented corporation to a health care or health care insurer payment knowing claim for of health care benefits the claim to be false. (5) guilty felony A pun- who violates section this of a by imprisonment years, ishable for not more than 4 or a fine of $50,000.00, 752.1003; not more than both. MSA [MCL 28.547(103).] physician report Dr. Matthews’ Cross Blue information indicates that applied provider provider he for a number and that his number approved regular only. for Medicare and business Dennis Drake testified surgeries question that the five were billed under Blue Cross and regular program Blue Shield business with accordance the subscriber’s By signing physician form, contract these claims. claim certifies performed provisions that the services were in accordance with the Physician’s Manual, subscriber’s Information, provides contract. Section One—General *4 copy physicians registration of Blue Cross agreement participant payment agrees accept in which the for covered in services with accordance the terms of the subscriber’s contract effect at time service is rendered. of on a number orthodontic oral surgeons ferent patients.4 by was described surgical
Technical assistance phy- section of the regular Cross in the business Blue manual, 2-20, profes- as p sician’s instruction “[t]he physi- given operating active assistance sional, proce- obstetrical ... for or eligible surgical cian an wherever “available Surgical benefits are dure.” Id., 2-19. The medically necessary.”5 p when provided billings for submitted specifies that claims manual subject are regular program business under must of service (1) restrictions: the location following “only can be hospital; (2) the service “inpatient” be intern, hospital when assistance billed available,” (3) or officer is not resident house training approved an intern resident “institutions with certify must that ser- program, surgeon charge through sixty January, 1982, from Dennis Drake reviewed claims sixty billing October, for tsas from 1984. Dr. Matthews admitted 1985, receiving payments through a result of Blue for them as Cross filing claims. Physician’s Manual, pp Michigan 2-19 Blue Cross and Blue Shield 2-20, July, 1979, following through services. describes Surgery is defined as operative proce- consisting manual and A branch of medicine diseases, repair injuries diagnosis for and treatment of dures dislocations), (fractures of deformities or defects correction impair body
which
functions.
[*]
[*]
[*]
surgery
multiple
extractions or removal
Dental
is a benefit
concurrently
hospital bedpatient
unerupted
with a
haz-
teeth for a
medical
ardous
condition.
directly
surgery
to or
to conditions not
related
Oral
is limited
caused
the teeth or their sockets.
*5
The of section manual with copayments cost-sharing pro- under the Blue Cross grams Physician’s was added to the Manual 1984.It require covers subscriber contracts that both deduct- copayments.7 regular ibles and As with the business program, policy provided cost-sharing “[a]ll only payable services are listed as benefits are if they medically necessary.” are The section of the setting policy reimbursing manual out the claims regular program under the business used the word describing surgical “active” in assistance services program. that would be reimbursed under that describing word “active” was not included in techni- surgical cost-sharing cal assistance services in the programs. programs However, both had identical limi- payment tations for technical assis- surgeries performed teaching hospital. tance for in Hospital hospital teaching Because Sinai was a had and residents, interns the claims were not reim- program bursable under either without a certification surgeon charge that the services of a resi- dent, or intern, house officer was unavailable.8 payable provided DO; may Tsa benefits are when an md it also be dpm payable surgery scope to a dds or if the falls within licensure. Michigan Physician’s Manual, p 2-20, Blue Cross July, and Blue Shield of 1979. 7 Physician’s Manual, p CS-1, January, 1984 8 Although plaintiff copayment pro asserted in the civil trial that the gram policy “superseded” regular program policy, only business support conclusionary response by for this contention was a Dr. Attenson following question represented to the that counsel been had asked at the criminal trial. v BCBSM Opinion the Court
II
were
Dr. Matthews
charges against
The criminal
following
County prosecutor
by the Oakland
initiated
the basis of
police on
state
by the
investigation
an
Blue Cross
Drake, a
by Dennis
submitted
information
Drake’s
Mr.
investigator.
financial
Blue Shield
precipitated
irregularities
billing
investigation
by LeAnne
hot line
fraud
Blue Cross
call to the
by a
Matthews, who
Dr.
employee
a former
Pierce,
*6
while
reports
surgical
had altered
she
that
alleged
com-
Drake
practice.
dental
for his
services
billing
a review
that included
investigation
an internal
pleted
claims submitted
assistance
sixty technical
con-
with Blue Cross
consultation
Matthews,9
Dr.
by
in the
surgeons
oral
with
sultants, and interviews
report
his
over
then turned
community. Drake
State
Michigan
Wayne Waldron of
Detective
Doctor,
agree,
the later definition
You’U
Question:
. .
Q.
.
you?
just
definition,
previous
It
supersede
wouldn’t
would
right?
Right.
simple
Was
Answer:
[Question:]
reason
stands to
you
in
case?
in
at
trial
this
said it
1988 the
the truth when
it, must be true.
A. If I said
it
plaintiff stipulated
Obviously,
had
that the
because
payment of
authorized
that the 1984 definition
he did not contend
Physician’s Manual
Cross
of law. The Blue
claims as a matter
these
policies
billing instructions for dif-
reimbursement
describes different
business,
sharing,
regular
and Medicare. Sev-
programs
cost
as
such
ferent
regular
employees
busi-
testified
and consultants
eral Blue Cross
regular
changed
The
business
or eliminated.
had not been
ness definition
subsequent
replaced
defi-
eliminated and
of tsa was not
definition
place
in
and has not
regular
tsa is still
definition of
business
nition.
had been
the 1979 definition
changed
assertion that
1979. Plaintiff’s
since
testimony
in the
supported
or documentation
“superseded”
trial
not
manual.
patient ledgers
in the criminal
involved
five
audit of the
A Blue Cross
ques
any
surgery
on the dates
charges
reflect
involvement
did not
any billings
tsa services that
for consultation
failed to show
tion and
normally
billing ledgers.
appear on the
would
Pierce advised Waldron that she had falsified reports represent cal that Dr. Matthews had surgeries. assisted at She stated at that Matthews’ aligned operative direction, she had his on the name directly physician’s operating note below the name, special using typing copied ball. then Pierce report altered and submitted it with the claim form to payment. hospital surgi Blue Cross for Review of the register copies reports cal on the five patients charge identified revealed that Dr. Mat appear thews’ name not did on of the documents having part original surgical as been team. Ms. operative *7 Pierce also told Waldron that the *8 456 Mich Opinion Court assistance and that where in-house assistance was availability not service, available for this lack of must writing be certified and submitted with the claim payment. for
Dr. Matthews declined to be interviewed, and his attorney, responded ques- Freilich, Diane to Waldron’s tions on behalf of Dr. Matthews. She stated that Mr. employee, Hill, Jack a Blue Cross had furnished Dr. provider Matthews with a medical number and had apply surgical told him how to for technical assis- tance benefits. She maintained that Dr. Matthews was unaware of the Blue Cross definition of technical sur- gical given pro- assistance because he was never by only vider manual Blue Cross and that he billed surgical surgeries technical assistance on where he stayed part surgery, for his which lasted from just briefly one half to one hour and that if he stopped by Additionally he did not bill. she claimed put surgical report that Dr. Matthews his name on the (although because Blue Cross asked him to do so he him) could not remember who so advised and that claiming payment there were other orthodontists surgical (although technical assistance the area she provide names). Attorney could not their Freilich talking stated that Dr. Matthews also denied surgeons filing surgical oral about technical assis- being tance fees on their cases and denied told Dr. Attenson not to claim technical assistance County Ralph benefits. Assistant Oakland Prosecutor Charles Claus, Jr., authorized issuance of a warrant. signed complaint, Waldron and swore to the which County judge. was issued an Oakland Opinion Court
m *9 basically Testimony preliminary at the examination rt.13The repo in Waldron’s replicated the information in circuit court. bound over for trial defendant was processed the tsa claims were and Pierce described how LeAnne represent pres operative reports Dr. Matthews’ were altered to how the procedure. surgical Each claim form sent and that he assisted ence operative report accompanied tsa, an altered to Blue Cross for services, repre summary seven-point Dr. Matthews’ tsa which a and during present served as tsa Dr. Matthews in the or and sented that “[w]as patient’s surgical procedure.” added to The individual name was the entire prepared copied letterhead. The form stated the form on the doctor’s following information. your records, mentioned in the in addition to the services For Operative Report, provided following: I Patient Study Photographs, Diagnosis Presurgical and 1. Models Consultation. tmj x-rays Skull, Facial, Presurgical and com- 2. Series of
plete Examination. Intermediate Surgeon[.] Presurgical with Oral 3. Consultation Mounting Presurgical impressions of the 4. and Articulator Splint. upper Surgical models for the fabrication of the and lower supervised adjustment Splint final of the Also constructed and prior placement. active patient Hospital, Preoperative at the 5. Consultation with the prior surgery. during present in as tsa the entire sur- 6. Was the or and served bony procedure. gical Determined the amount of advancement or degree surgical genioplasty (and if retraction reduction necessary). Complete Post-op Records. 7. together were attached and mailed to Blue Cross These documents the claims for error. after Dr. Matthews reviewed surgeons given to Detective Waldron testified who had statements they given had Detective Waldron that in accord with the information operation and that were available and assisted in each resident doctors provide surgical assistance for the cases. Dr. Matthews did not technical assistance, surgical testi- each doctor Asked for a definition technical commonly recognized mean- assistance had a fied that technical community required participation surgery ing active in the the oral surgical procedure. accuracy given information he had Dr. reaffirmed the Attenson representatives, and Dr. Scott John Gilsenan Waldron. Blue Cross 456 Mich A bench trial was held before the Honorable Fred- prosecution’s proofs apparently erick Ziem. The con- testimony pre- sisted of similar to that adduced at the liminary supplemented by examination, that of addi- tional witnesses. Dr. Matthews testified his own essentially contending defense, that he lacked crimi- nal intent to file false claims or to defraud. The trial judge Dr. denied Matthews’ motion for directed ver- acquittal. guilt dict of The trial court found that had beyond not been established a reasonable doubt and acquitted the defendant.
iv
Dr. Matthews filed the instant action of malicious
prosecution against Blue Cross and Blue Shield. As
*10
theory
far as can be determined, Dr. Matthews’
of lia-
bility
agents
improp-
was that the
of Blue Cross acted
erly
they
because
had not informed the
cost-sharing programs
did not include the
describing
policy concerning
word “active” in
surgical
reimbursement for claims of technical
assis-
tance. The trial court denied the defendant’s motion
proofs.
for a directed verdict at the close of the
jury found in favor of Dr. Matthews and awarded
Navarro, acknowledged
eligible
that dentists were
for tsa
licensure
Physician’s Manual,
under the terms
stated
the Blue Cross
but that it
hospital
was the credentials committee of the
that determines whether a
eligible
participate
procedures.
doctor or
dentist is
to
Mr. Gil-
Physician’s
senan stated that the
Manual does not contain definitions of
per se,
descriptions
services
but
of services that Blue Cross relies on to
payment.
establish criterion for
Hill,
provider representative,
Jack
a Blue Cross
testified that Dr. Mat-
payments.
thews had not indicated
concern with tsa
Mr. Hill stated
possession
that Dr. Matthews was in
of the Procedure Code Manual and
Physician’s
expressed
Manual and
receiving
that he
concern about not
updates
updates
to the manual and he directed that
be sent to him.
v damages.
motion for
The defendant’s
$1,275,000
notwithstanding
judgment
was denied.
the verdict
Unpublished opin-
Appeals affirmed.
The Court
April
(Docket
per
No.
curiam,
13,
issued
ion
application
granted
145934).
the defendant’s
We
ques-
appeal
was a
“limited to whether there
leave to
required
the issue of
cause
of fact that
tion
jury.”
(1996).
(1996). before us con- Ed 2d 911 Because the question the existence of law, cerns a cause, our review is de novo.
A
prosecution is a tort that “runs counter
Malicious
policies
encouraging
in favor of
to obvious
of the law
apparently guilty,
proceedings against those who are
litigation
letting
undisturbed and
finished
remain
(5th ed),
unchallenged.”
Keeton,
Prosser &
Torts
*11
persons
p
§
However, the interests of
119,
876.
protected.
prosecuted
wrongfully
Bal-
must also be
ancing
involved, actions for malicious
the interests
historically
limited
restric-
have
been
to maintain. Id. Renda
that make them difficult
tions
378
defendant has initiated a criminal (2) proceedings him, that the criminal terminated (3) private person his favor, who instituted or probable maintained the lacked cause for (4) his actions, and that the action was undertaken purpose instituting with malice or the criminal justice. bringing claim other than the offender to Riv Corp, App ers v Ex-Cell-O 824, 832; Mich (1980), citing NW2d 420 Weiden v Weiden, 246 Mich (1929).14 347, 352; NW 345
B turning probable Before to the issue of cause, we initially propositions address several advanced at trial appeal proper and on analysis that seem to have obscured opening plain-
of this case. In his statement, tiffs counsel maintained that there was an absence of
prosecute: cause to
Probable cause means that there is a reason to believe crime, simplistic that someone has committed a and that’s a way it, putting you you argue but I submit to and will you later, you can’t have if cause don’t make you authority a full disclosure. If prosecuting don’t tell the give right definition, you all of the facts and them the if being said, you possibly distort what’s then can’t have— being have a reasoned decision prosecuting made authority. happened So that’s what here. There will be—we 14 probable found, complaint If cause is the actual motive behind the may recognized may not be relevant because is a rule that malice “[i]t be probable cause, inferred from want of but this is not a rule that works ways. may both Want of not be inferred from malice.” Wei supra den, at 352. *12 379 v
Opinion of the Court they you probable cause because will an absence of show and because the disclosures make full disclosures didn’t they And I think I mentioned to made were untruthful. that produce exculpa- they you ignored the court’s order to that they tory intended to —to ... It shows that information. they any regard to whether prosecute man without this justice. bringing someone to were pros- plaintiff’s in a malicious burden However, the showing prima facie to make a ecution case is agents cause to lacked the defendant’s plaintiff had committed a crime. that the believe prosecutor might made a different have Whether the is irrelevant to that issue.15 decision pros- prosecutor public liable for malicious A is not pri- prima against plaintiff’s case a A facie ecution.16 person proof private person requires vate prosecution and that the maintained the instituted or prosecutor basis of information submit- acted on the prob- private that did not constitute ted able cause.17
Additionally,
plaintiff’s
that defend-
contention
obligated
fair disclosure or
ant was
to make full and
prosecution confused the ele-
be liable for malicious
plaintiff’s prima
affirma-
facie case with the
ments of
15
argu
that counsel was
Counsel’s statement was correct to the extent
ing
a defendant
to disclose could be evidence of malice or that
that failure
rely
without
cause cannot
on
who initiates
prosecutor’s legal
facts.
advice if he concealed material
16
e, p
Torts, 2d,
653,
§
Restatement
comment
408.
3
recently
position,
Supreme
reaffirmed this
States
Court has
United
fully protected
holding
prosecutor
“absolute
immu-
that a
is
advocate,
nity
performing
that is
functions” of an
. . . when
traditional
warrant,
pro-
preparation
arrest
but is
the information and motion for
functioning
only by qualified immunity
as a
if the
tected
118,_;
502,
Fletcher,
“complaining
118 S Ct
522 US
witness.” Kalina
507-508;
(1997).
L
139 Ed 2d
c, p
Torts, 2d,
653(a),
b and
407.
§
Restatement
comments
tive defense of reliance on advice of an A private person who institutes or maintains a prosecu- may tion liability without avoid on the that he instituted ground at the direc- tion or on the advice prosecutor, where he proof offers permit sufficient finding he made a full and fair disclosure of the material facts.18 *13 Torts, 2d, 666, pp § 3 Restatement 433-434. (1) attorney practice The advice of an at law admitted to and
practicing proceedings brought, in the state in which the are whom personal the client has no reason to believe to have a interest in obtaining conviction, probable a is conclusive of the existence initiating proceedings upon cause for criminal in reliance the advice if it is (a) sought good faith, (b) given after a full disclosure of the facts within the accuser’s knowledge and information. Comment: (a) prosecuting attorney. . . . This a includes . . . (b) chiefly important . . . The advice of counsel is in cases in proceedings which the criminal are initiated in the mistaken belief reasonably
that the conduct of which the accuser
believes the
guilty constitutes,
law,
accused to have been
as a matter of
the
charged
proceedings.
crime
in the
Thompson Price,
558, 560-561;
In
(1894),
100 Mich
Finally,
assuming arguendo
prima
case,
out a
facie
want of
proofs make
law
question
cause is a
to be determined
Miller,
21;
court.19 Modla v
344 Mich
the circumstances under which the defendant acted. The court
whether,
determines
under those circumstances . . . the defend-
probable
ant had or had not
cause. If there is no conflict in the tes-
Mich 365
Opinion
the Court
in dispute,21
question
jury.
jury
the
is for the
The
disputes
resolves factual
the circumstances
under which the private
initiates, pro-
who
cures,
a prosecution
or maintains
be
might
found to
probable
have acted without
cause. Whether the facts
probable
constitute
cause is a matter
the
court to
Vohs,
determine.22 Koski v
timony were, as to what the circumstances the court has no need finding jury. jury upon for a of the is not called to act unless testimony presents there is a conflict in the an issue of fact for 77-78, quoting Torts, 2d, its determination.” at 3 Restatement [Id. 673, e, pp § comment 449-450.] 21If Drake testified that the basis for his action was that Pierce told reports, him that Dr. Matthews directed her to alter the but Pierce later knowledge testified she told Drake that Dr. Matthews had no records, question telling alteration of the the whether Pierce or Drake was jury. the truth would have been for the presenting question jury determination, pre In cases of fact for presenting jury suggested ferred method for man, the issue to the in Fried supra 78, following n 20 at the Restatement of Torts: determining probable “The better . . . method the issue of [in require jury special setting is to to find verdict cause] forth they proceedings the circumstances under which find the were ini- Upon findings tiated. these the court then determines whether the probable [Quoting Torts, 2d, defendant had cause.” 3 Restatement 673, e, pp § comment 449-450.] stated, jury As Justice Blair Moody, Jr., it is “the resolves con- [that] underlying probable flict in the facts on the issue of cause. Once the con- resolved, judge flict is determines whether the facts as found jury underlying constitute cause. If the facts . . . reasonable dispute, judge belief are not in decides the issue of cause.” agree approach preferable We and find the Restatement because it allows jury worrying to focus on the factual determination without about applied. disputed question how the law is to be Where there is a of fact in prosecution case, jury a malicious should determine the facts on a special judge should, facts, verdict form and the on the basis of those make the ultimate determination of cause as a matter of law. Torts, 2d, 673, pp See 3 § Restatement 448-449: (1) In an action for malicious the court determines whether *15 Opinion of the Court
c discussion of the first and third Although further explanation is unnecessary, observations is additional plaintiffs to show obligation in order the maintained initiated, continued, that the defendant or question prosecution and that cause is the law. We discuss them seriatim. failed to that defendant’s plaintiff agents show pros- or maintained it.24The proceeding instituted the warrant, authorized the and Detective Waldron ecutor plaintiff complains (a) proceedings of which the were crimi- the character; nal in plaintiff; (b) proceedings were the terminated favor of the continuing (c) initiating or the defendant had proceedings; the plaintiff proper (d) harm is a element for the suffered jury assessing damages. to consider in prosecution, subject (2) In an for malicious the control action court, jury determines (a) proceedings the circumstances under which the were initi- may necessary ated in so far as this determination be to enable the court to determine whether the defendant had cause for initiating continuing proceedings; or primarily purpose (b) whether the defendant acted for a other bringing justice; than that of an offender to (c) proceedings the circumstances under which the were terminated; (d) plaintiff the amount is entitled to receive as damages; (e) punitive damages awarded, so, whether are to be and if their amount. appears Plaintiff to contend that Drake initiated the or procured that he and maintained it because of his continued involvement throughout proposition the case. The first a matter of law incorrect as because initiation of the is at the exclusive discretion of the prosecutor. pressure There was no evidence of inducement or or infringement prosecutor’s authority bringing continuing on prosecution. employ opinion throughout We the terms “continued or maintained” this concept expressed in accord with the Torts, 2d, 662, p of “continues” as in 3 Restatement § 423. 456 Mich - *16 complainant
was the
request
The warrant
was based
independent
on Waldron’s
investigation, not on the
information the
agent
defendant’s
submitted. As the
chief law enforcement officer
county,
pros-
of the
ecutor has independent authority to initiate criminal
prosecutions. MCL 764.1; MSA
A
may
28.860. warrant
not be
prosecutor’s
issued without the
written author-
security
ization unless
for costs is given. Bloss v Wil-
liams,
App
Mich
228, 233;
bly believes (a) that the whom he accuses has acted or failed to act particular manner, in a (b) that those acts or omissions constitute the offense that he charges against accused, the (c) sufficiently that he is informed as to the law and the facts to justify initiating continuing prosecution. him in or the See comment on clause a- reasonably by It is private pros- the facts known or believed the ecutor that determine the existence or non-existence of which, although knowledge cause and not the facts within the persons, If, third are light not communicated to him. in the reasonably be, facts as he knows or believes them to a reasonable man would believe that the conduct of the accused was such as to guilty charged against him, make him of the offense the existence exonerating facts is immaterial unless those facts would have investigation
been
prosecutor
disclosed
such an
as the
should
initiating
proceedings.
have made before
the
at
[Id.
424-425.]
pressure
There was no evidence of
infringement
inducement or
or
prosecutor’s authority
bringing
prosecution.
on the
continuing
People Carter,
24;
See
(1967).
379 Mich
In Renda v Int’l jury judge charging that the trial erred cluded liability if it found that the defend- that it could find cause,” 91, id. at “proximate ants were the prosecution, in the sense *17 of an probable consequence agreement
natural and
pay
an
to
private persons
the
informer
between
testimony
refusing
and in
the informer
for his
on his own
prosecutor
judg-
that if the
acted
charge
We held
ment the verdict must be for the defendants.
Torts, 2d, 653,
g, p
§
comment
409 states
3 Restatement
private person
gives
public
A
who
to a
official information
misconduct,
supposed
of which the official is
another’s
criminal
pro-
obviously
subsequent
ignorant,
institution of such
causes the
may
initiative,
giving
ceedings
begin
but
as the official
on his own
making
or
an accusation of criminal miscon-
the information
even
procurement
proceedings
initiated
duct does not constitute a
entirely
pro-
to initiate the
the officer if it is left
to his discretion
person
prosecuting
ceedings
private
gives to a
or not. When a
true,
in
believes to be
and the officer
officer information that he
pro-
initiates criminal
exercise of his uncontrolled discretion
upon
information,
ceedings
liable
that
the informer is not
based
though
even
the information
under the rule stated
this Section
proves
man
and his belief was one that a reasonable
to be false
discretion makes
not entertain. The exercise of the officer’s
would
protects
liability
prosecution his own and
from
the initiation of the
accusation has led the officer
whose information or
proceedings.
initiate
Christy
long-established
and Renda confirm two
negate
plaintiff’s prima
rules that
an element of
facie
independent
prosecutorial
case. The
exercise of
dis-
private
cretion establishes that the
defendant did not
prosecution.
prosecutor’s independent
initiate the
investigation
private
is not in law attributable to the
developed by
defendants. The information
Officer
Waldron was submitted to the
who author-
grounds
ized issuance of a warrant on
that estab-
lished
cause to believe that Dr. Matthews
felony.
had committed a
Thus, Blue Cross did not ini-
tiate or maintain the
as a matter of law.
Finally,
disputed
there was no
issue of material fact
private
the existence of
cause. A
person’s mistake of fact or law is relevant to whether
reasonably
initiating
maintaining
he acted
or
proceeding.29
criminal
However, as noted, defendant
prosecu-
did not initiate, continue, or maintain the
disputing
tion.30Because there was no basis for
example,
For
if
pri
the criminal law is used for “some collateral or
purpose,
compel
delivery
property
payment
vate
such as to
*18
of a
law,
guilty
debt
process
rather than to vindicate the
he is
aof misuse of
upon
Co,
the law.’’ Hall v American Investment
and a fraud
349,
241 Mich
353;
(1928).
VI that 432, recognized at we Koski, supra In that objective an test32 probable cause is question man under of a reasonable only the conduct “involves a criminal cause which the circumstances.” “In objectively measured. so initiated, is is proceeding not as a facts, legal to view the it was correct doing, cau- prudent, but as the them, would view technician In Wilson Id. would see the situation.”33 person tious NW 81 we 133, 138; (1887), Mich 31 Bowen, 64 observed: ., . . there must be such “To constitute suspicion, supported ground circum-
reasonable
sufficiently strong
to warrant an ordi-
in themselves
stances
narily
arrested is
belief that the
cautious man
charged.
guilty
the offense
31
Torts, 2d, 653, p
§
Restatement
406.
injecting
support
been critical of
a
this view and have
Commentators
Dobbs,
subjective
See
into a
cause determination.
element
Belief
607,
libel, 21 Ariz L R
609-610
doubt in malicious
and
note, Changing
(1979),
cause in malicious
the standards of
Co,
prosecution, Bradshaw v State Farm Mutual Automobile Insurance
1231(1989).
411;
(1988), 21 Ariz St L J
Ariz
Opinion the Court of may person making have cause for a criminal “A merely; complaint from information received from others honestly case, he but in such must believe the information true, to be the must there obtained and information be of character, sources, that and from such that busi- obtained ordinary generally, care, prudence, ness men of and discre- tion, upon circumstances, believing act it such would under it to be reliable. But a man’s mere belief another that is guilty cause, is not unless that belief is founded upon grounds suspicion, upon reasonable information kind, of such a reliable such . . and from reliable sources . impartial such would induce as an and reasonable mind to guilt the believe in of the accused." report police Dennis Drake’s the to state was based namely operat- on sources, information from reliable ing surgeons. plaintiff’s The doctors’ statements that medically necessary assistance was not and that none represent provided of them authorized him he that surgical allegation assistance corroborated the improper billing made LeAnne It Pierce. was infor- mation that would cause a reasonable mind to believe guilt assuming arguendo the the Thus, accused. that there was evidence Drake initiated or maintained prosecution, light the taken most favorable to plaintiff, simply there is no basis to conclude a reasonable not have would believed that Dr. probably Matthews had submitted false claims.34 argument Plaintiff’s that lack of full fair disclo- policy being sure of a material fact, fact payment for technical assistance copayment programs,
inapposite under the Proposed 6.107(E). See Rule of Criminal Procedure 422A Mich 33. 5.1(a) great subrule is consistent with FR Crim P and with the weight authority requiring probable respect of state cause with to both the offense defendant. Opinion Court case prima out a facie proofs made plaintiff’s whether Plaintiff’s burden cause. absence of investiga- instigated defendant to show that prosecution was it and that continued tion or circum- Under these false information.35 based on issue of fact that tech- disputed was no stances, there *20 at not reimbursable assistance was nical Hospital. Sinai App 452, 466; 406 NW2d Arbic, 159 Mich King
In prosecution malicious plaintiff filed a 852 (1987), who had trooper signed state against claim The Court of the defendant. complaint against summary dis- grant the trial court’s Appeals upheld invoked has observing that position, “[defendant prosecution, to malicious a traditional defense of counsel.” The Court the defense of advice namely, court, the trial adopted opinion Appeals recognized: which here, that to the one we are faced with In cases similar only principle following rule: “. . . the
legal reduces to the malicious in which an action for situation police knowingly properly officer lie is where would swears no rule is sometimes characterized [171 probable NW2d 581 to false facts in a Belt v cause.” (1969)]. complaint, without which there is The Ritter, argument as an attack 18 Mich supported on the first ele- App [495] 503 35 Co, supra American Investment n at 354-355. See Hall v 28 accepted determining generally whether there that in The rule is prosecution, probable of a criminal cause for the institution was only as were known to the com- facts and circumstances those instituting plainant are to be the criminal at the time of subsequently appeared. considered, and not facts which goes inquiry probable back to the commencement as to they prosecution, to facts then known as and it relates the criminal appeared. then 390 456 Mich action,
merit of the cause of
that defendant instituted the
previous prosecution. Alternatively,
good
there is a
deal of
case literature which views the defense as an attack on the
“lack of
prong.
agreement
cause”
This Court is in
Appeals
with the Court of
Yono,
decision in Wilson v
App 441,
Mich
(1975),
said,
NW2d
which
[237
“[ajlthough
the cases seem to talk in terms of
cause, it
upon
is clear that the rule is based
the idea that
prosecution.”
defendant has not
in fact
instituted the
(Emphasis added.) See
Corp,
also Rivers v Ex-Cell-O
App 824, 832-833;
Mich
(1980).
Because it facility teaching for and reimbursement technical under either the was not available assistance copayment program programs regular or the business operating surgeon the unavailabil- certified unless the ity there no nondisclo- assistant, was of an “in-house” dis- material, of was no sure information that puted information on which the the fact independent determina- to make his relied being of There no evidence tion cause. negating of defendant’s reasonable the existence had for Dr. Matthews submitted claims belief that entitled, was he not the trial reimbursement which submitting issue of court erred jury denying motion defendant’s for directed verdict.
CONCLUSION clearly
probable Blue had cause to believe Cross probably Dr. made false claims for that Matthews had Cross was aware reimbursement.36 fact that Blue Torts, 672(2), p 2d, an § 3 Restatement establishes “[i]n prosecution, proving, defendant has the burden action malicious plaintiff properly raised, guilty that the of the crime when issue is charged against him.” 2, p subsection 448. Comment on protect (i) defendant can himself from The rule under which the
liability guilty charged by proving plaintiff was the crime against §in him is stated 657. 657, p 416. § Comment on guilt proof . rule in this Section b. . . Under the stated proceedings against is a whom were instituted com- *22 person plete against initiated them. In a suit who defense to 456 Mich Opinion Cavanagh, J. policy copayment programs
that a under deleted might ameliorating “active,” the word an constitute bearing circumstance on Dr. whether Matthews had intent, fraudulent it but does not make false the fact plaintiff payment made claims for that were any not reimbursable under definition. The alteration of the records was itself to sufficient raise suspicions prudent businessperson. Com- surgeons bined with advice from the oral that Dr. provided Matthews permission no services and did not have their contrary representation,
to amake a rea- person sonable would have concluded Dr. that Mat- probably felony. thews had committed There was no evidence that the was initiated other than at the sole discretion of the on the independent investigation. basis of an We reverse the Appeals decisions the trial court and Court of entry judgment and remand the case for notwith- standing the verdict. C.J., and
Mallett, Brickley, Weaver, Kelly, JJ., concurred with J. Taylor, Boyle, (concurring). J. Because the evidence Cavanagh, supported Blue Cross Blue Shield’sassertion that improperly billing surgi- Dr. Matthews technical teaching hospital, cal assistance at a as that term is Physician’s defined in either the 1979 or the defense, prove order avail himself of this latter must guilty charged against that the accused was of the crime him. To burden, however, required sustain this he is not establish guilt beyond enough accused reasonable doubt. It is produced all preponderating the evidence at the trial shows a probability guilt. of his *23 v J. by Cavanagh, Opinion by reached the result in Manual, I concur majority. whether Rumbly was asked trial, Officer
At the civil him to caused definition the 1984 out about finding Dr. against had a case police whether question it the time that “Well, at answered, He Matthews. exactly what know I wanted to obviously out, came why it was, it and where was, the definition evidence the other However, given my in file. wasn’t in any hesitation cause me did not case, in the it . . . .” When the issue of terms of what was were, and factors what those other asked Rumbly replied: trial, in the criminal argued having charged submitted false with The defendant was . . Blue Shield. . Our Blue Cross and care claims to health not entitled to theory the defendant was the case is that surgi- having a technical paid acted as the benefit of be for beyond to the extent the definition It went cal assistant. existed, there were conditions definition that either Now, them I can’t recite to that definition. were attached that existed word, there were conditions for but word place procedures took fact that these because of the teaching hospital. It was at as a what Blue Cross defined hospital, teaching there Hospital. was a Because that Sinai proce- time of the that at the had to be some certification available to assist the dure, intern or resident there was no procedure charge before this surgeon who was Matthews, the benefit of provider, Dr. could claim tsa. any time, any- at to indicate that There was no evidence intern body was a resident or there ever certified That was one item. unavailable. on factor, specifically relied of this
On the basis prob- find that prosecutors, I and the both Blue Cross Dr. Mat- charges against to bring cause existed able express not I do practices. improper billing thews 456 Mich Opinion by Cavanagh, J. any opinion regarding the other matters raised majority opinion. notes surgeons’ were received from various oral offices hospital because the had refused to send them and Topf Dr. was interviewed because he was the chairman of the oral surgery department. hospital policy indicated He had no written any that benefits and he had never had incidents where tsa tsa permission benefits were claimed. He further noted that there was no operating needed for staff to in the be room staff could and attend sur any gery at time. 11Dr. Macintosh his stated interview with Detective Waldron that years investigation, two before the he had a conversation with Dr. Mat surgical thews about tsa fees. Dr. Matthews was told that residents found v sent all claims personally reviewed that Dr. Matthews completeness. Cross for to Blue Aughton, Doctors William interviewed Waldron Lepczyk, James Anderson, Jonathan Myron Kaufman, Waldron whom told Macintosh, each of and Robert to permission Dr. Matthews they given had not that Additionally reports. surgical name on their type his Dr. Mat- 1) that provided doctors information performing surgi- or assist in thews did not scrub only a short stayed Dr. Matthews for operation, 2) cal appeared all,12 if at lengthy surgery he during time Dr. Mat- valid medical reason for there was no 3) room, 4) and that most operating to be in the thews billing were not aware that Dr. Matthews doctors assistance. surgical for technical consultant was also advised Blue Cross Waldron Dr. Matthews in Attenson, that he had informed Dr. him to bill for techni- 1984, that it was error for July, required it hands-on cal assistance because surgical payments were for such assistance, that at no time was no med- paid orthodontists, that there benefits at oral present for an orthodontist to be ical reason only ortho- and that Dr. Matthews was the surgery, currently billing attending surgeries dontist stated that such “assistance.” Dr. Attenson also residents, oral sur- Sinai had interns and because technical on staff must use them for geons request they improper add his name to their it for Dr. Matthews surgical reports. oper Hospital surgical register and schedule of the Sinai A review of (surgery log) surgeries did not involved in the ations for the any the documents. This confirms indicate Dr. Matthews’ name on hospital verifying Dr. Matthews’ attendance there was no official record surgeries. Hospitals required, matter of are as a assistance in operating present assisting record, room. to document all those