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“They Don’t Like Lawyers Around Here” – Malicious Prosecution

An Arizona jury awarded a physician wrongly accused of malpractice and homicide $8 million. The verdict was against the lawyer that sued him.

Several years ago, Helen Scharf filed a medical malpractice suit against Dr. Arnaldo Trabucco. She believed that Trabucco botched a kidney removal surgery which she says caused her husband Gerald’s death. According to the doctor’s blog, he is a board certified surgeon specializing in urology. Today he is living in Italy, at the time of Gerald’s surgery he was living and practicing in Arizona.

Helen’s lawsuit was filed by attorney Jeffrey Cogan.

The original lawsuit claimed that Dr. Trabucco committed medical malpractice. Essentially, he is accused of botching the surgery causing Gerald’s death. Later Cogan amended the complaint and accused the doctor of intentionally and maliciously causing Mr. Scharf’s death.

Those are pretty serious allegations. It may be why Dr. Trabucco left the United States. Being accused of murder is never good for business. It is one thing to say that a lawyer or doctor made a mistake. We all make mistakes and we have juries to sort through those claims if the case doesn’t settle.

Accuse someone of murder, particularly a surgeon, and you better be able to prove it.

According to medical records made available in court pleadings, Gerald Scharf was 81 years old at the time of his surgery. He had surgery on his left kidney however shortly after the surgery he developed complications. Ms. Scharf believed that the surgeon – Dr. Trabucco – botched the procedure.

Defense experts said that complications are possible in any surgery, particularly when the surgery is performed on an 81 year old man. The surgery lasted an entire day.

When complications developed, Gerald was transferred from Arizona to a hospital in Las Vegas. By the time he arrived, his condition had worsened and doctors there said he needed emergency surgery. Apparently, his right kidney had failed and his legs were not receiving any blood flow.

Although the surgeons believed the emergency surgery was successful, he died two days later of acute aortic occlusion, renal failure and respiratory failure. Basically, his body shut down and many of his systems stopped functioning.

After the complaint was filed, Law360 reports that Dr. Trabucco filed bankruptcy. We suspect that is when attorney Cogan amended his complaint and claimed that Dr. Trabucco’s actions were intentional. In bankruptcy court, claims of negligence are ordinarily discharged after any insurance proceeds have been exhausted. Intentional acts, however, are not dischargeable.

That means if you can prove that someone acted intentionally, any debts they owe you will remain after bankruptcy. The bankruptcy code is designed to give debtors a fresh start but can’t be used to shield someone of intentional wrongdoing.

Ultimately a jury concluded that Dr. Trabucco didn’t do anything wrong.  Ms. Scharf and Mr. Scharf’s estate were awarded nothing.

But the case wasn’t over.

Because he was the subject of some very serious and scandalous accusations, Dr. Trabucco sued both Jeffrey Cogan and his client, Helen Scharf.

That case was heard in the Superior Court of Mohave County, Arizona. Mohave is one of the five largest counties in the United States but it doesn’t have many people. It is Grand Canyon country. And it is fairly conservative.

After a three day trial, the jury ruled that Scharf’s prosecution against Dr. Trabucco was a malicious prosecution.

Malicious Prosecution Defined

Malicious prosecution occurs when someone (1) intentionally and maliciously brings and pursues a legal action that is (2) brought without probable cause and (3) dismissed in favor of the victim of the malicious prosecution.

The rules vary a little state by state but the core elements are the same.

In many states the mere filing of the lawsuit is not enough. Some states offer a “safe harbor” and require the person being sued to permit the offending party to withdraw the lawsuit or correct the offensive language. It is only after the person filing the suit refuses and instead pursues the action does malicious prosecution occur.

In most states and in the federal courts, the court itself can also sanction and fine the parties bringing a frivolous complaint.

In Dr. Trabucco’s action against Attorney Cogan and Mrs. Scharf, the jury deliberated for just one hour before awarding Dr. Trabucco $6.2 million in compensatory damages and an additional $1.8 million in punitive damages. Local lawyers say it is the largest verdict in Mohave County.

Law360 quotes one lawyer as saying, “Mohave County is a very conservative county; most years the average plaintiff verdict is zero. The seat of Mohave County is Kingman, we had a good jury up there and if there’s one thing a jury can agree on [it] is they don't like lawyers.”

What is interesting is that the jury said attorney Jeffrey Cogan was responsible for the entire verdict. They awarded nothing against Helen Scharf.

Why wouldn’t they hold Cogan’s client responsible for pursuing the case against Dr. Trabucco? KTAR News says even Ms. Scharf didn’t think Trabucco was responsible for her husband’s death!

Dr. Arnaldo Trabucco – the Rest of the Story

So why did Dr. Trabucco leave the United States? We don’t have all the answers but we can take an educated guess.

Obviously, there was the emotional trauma of being accused of the intentional killing of a patient and the ensuing bankruptcy and lawsuits. We can’t imagine what happened to Dr. Trabucco’s practice but in a small town, those kinds of troubles are never good for business.

CBS News reports that a Florida woman and her son fled after failing to appear in court on charges that they tried to kill the divorce lawyer seeking money from the woman’s boyfriend.

What does that have to do with Dr. Trabucco? CBS says that boyfriend was Dr. Arnaldo Trabucco of Fort Mohave, Arizona.

Cops allegedly found mother and son sleeping in a car of the attorney. They were armed with a tranquilizer gun, four darts containing a lethal dose of succinylcholine, a mask, priest disguise, a loaded Glock semiautomatic pistol and a shovel.

Another good reason for poor Dr. Trabucco to flee the United States, especially since the murderous duo failed to appear in court and went on the run.

Finally, court records show that Dr. Trabucco filed a whistleblower lawsuit against another area doctor. He accused Dr. Bashir Azher of performing unnecessary prostrate laser ablation procedures. The federal government intervened in that lawsuit and awarded Dr. Trabucco $200,000 for stepping forward and reporting the fraud.

That makes Dr. Trabucco a hero in our eyes but probably pretty unpopular with some of his fellow physicians at Valley View Medical Center.

We haven’t had the pleasure of meeting Dr. Trabucco but we certainly understand why he is now practicing medicine in Italy. He was essentially accused of murder, had two people trying to murder him and had reported one of his fellow physicians for wrongdoing.

Are You the Victim of Legal Malpractice or Malicious Prosecution?

Technically, although Dr. Trabucco sued a lawyer, his case was not legal malpractice. That is because Jeffrey Cogan was not his lawyer. Successful lawsuits against opposing counsel for malicious prosecution are quite rare.

Opposing counsel – the lawyer representing the other side – typically only owes a duty to his or her client. There are exceptions including trusts and estate work where a lawyer may have a duty to the intended beneficiaries of a will.

In this case, Cogan had a duty not to pursue a malicious case against a physician. Had the lawsuit never been amended and merely accused Trabucco of malpractice, we suspect Cogan would not have been sued. Although Helen Scharf still would have lost that lawsuit, it would have been much harder to accuse her of deliberately bringing a lawsuit that she knew to be false.

Accusing a doctor of murder, however, is probably not going to go unanswered. Obviously, the jury thought there was no basis for the lawsuit and in minutes awarded the doctor $8 million dollars including a substantial award of punitive damages.

Unfortunately, Jeffrey Cogan represented himself. That means he probably does not have malpractice insurance. We don’t know whether Dr. Trabucco will ever collect what he is owed.

Most lawyers in the United States have insurance. Although many policies won’t pay for punitive damages, there is a way to get paid in most cases.

If you have been wrongfully accused and sued for a serious wrong and have suffered damages, you may be entitled to damages. Although these cases are difficult, it is obvious that juries don’t like bad lawyers.

To see if you have a case, visit our legal malpractice claims page. Then give us a call. There is no obligation and we never charge a fee unless we win and collect on your behalf. For more information, contact attorney Brian Mahany online, by email [hidden email] or by telephone at 877-858-8018. All inquiries are protected by the attorney – client privilege and kept confidential.

*Cases for malicious prosecution are extremely difficult. Simply because someone sued you and lost doesn’t mean they are guilty of malicious prosecution. Depending on where the wrongdoing occurred, we partner often with local counsel.

 

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