D'Angelo v. Mussler

Gregory D’Angelo (plaintiff) was an orthopedic surgeon who treated Austin Jacobs for a fractured elbow by placing pins into the bones. After experiencing continued pain and a cold sensation, Austin was referred to Dr. Walter Badenhausen, who performed surgery to examine Austin’s ulnar nerve. Dr. Badenhausen concluded that a pin had gone through the nerve. Austin’s mother consulted attorney Theodore Mussler (defendant) about suing D’Angelo for malpractice. Mussler met with Dr. Badenhausen and reviewed D’Angelo’s operating note, which did not document the precautions D’Angelo used to avoid injuring the nerve. Dr. Badenhausen told Mussler that D’Angelo’s care of Austin was below the acceptable standard of medical care and caused permanent nerve damage. Mussler filed a malpractice suit against D’Angelo based on Austin’s medical records and the meeting with Dr. Badenhausen. D’Angelo’s motion for summary judgment was denied. When Dr. Badenhausen was deposed, he was uncertain and equivocal in criticizing D’Angelo. Mussler voluntarily dismissed the malpractice suit. D’Angelo subsequently sued Mussler for wrongful use of civil proceedings, alleging that Mussler filed the malpractice suit without probable clause and without conducting a reasonable investigation of the facts. The court granted Mussler’s motion for summary judgment. D’Angelo appealed.