## Facts

- Harriet Nathan injured the little finger of her right hand and was treated at a community hospital.
- An x-ray taken under Dr. Leonard Berlin’s supervision was read as a dislocation; treatment for dislocation was applied.
- A later x-ray showed a chip fracture.
- Near the limitations deadline, Harriet Nathan (through attorneys Fred Benjamin and Stuart Shapiro) sued Dr. Berlin, another physician, and the hospital for malpractice related to the x-rays and diagnosis.
- Dr. Berlin filed a separate action against Harriet Nathan, her husband Gilbert Nathan, and the two attorneys, alleging they brought the malpractice suit willfully and wantonly, without reasonable cause, and to intimidate him.
- Berlin sought damages for reputational harm, emotional distress, lost time from practice, and litigation expenses (including attorney’s fees), and obtained compensatory and punitive damages after a jury verdict.
- Berlin also sued Gilbert Nathan for barratry; the trial court dismissed that count.
- Defendants appealed the judgment for Berlin; Berlin cross-appealed the dismissal of the barratry count.

## Issues

1. Whether Berlin’s complaint stated and could support a civil malicious prosecution (or similar “retaliatory”) claim arising from the filing of the malpractice suit.
2. Whether a single allegedly instigated lawsuit can constitute barratry under Illinois law.

## Decision

- The appellate court reversed the judgment for Berlin and remanded with directions to dismiss his complaint.
- The court held Berlin failed to plead a legally cognizable malicious prosecution claim, including the required special damages beyond ordinary litigation burdens.
- The court declined to recognize a broader tort theory allowing retaliatory suits against opposing parties and counsel based on allegedly baseless civil filings.
- The court affirmed dismissal of the barratry count, holding barratry requires repeated or habitual fomenting of groundless litigation, not a single lawsuit.

## Legal Principles

- Civil malicious prosecution in Illinois requires pleading and proof of: initiation or continuation of proceedings, lack of probable cause, malice, favorable termination, and special damages.
- “Special damages” must be different in kind from the usual consequences of defending litigation; attorney’s fees, time lost, emotional distress, and reputational harm ordinarily incident to being sued are insufficient.
- Courts will not expand malicious prosecution into a general “retaliatory litigation” tort because it would increase follow-on lawsuits and chill access to courts and representation in close cases.
- Barratry requires a pattern or practice of instigating or maintaining groundless litigation; a single act is not actionable as barratry.

## Conclusion

The appellate court set aside Berlin’s verdict and ordered dismissal because his pleadings did not satisfy the strict elements of civil malicious prosecution, particularly the special-injury requirement, and it affirmed that barratry cannot be based on a single allegedly groundless lawsuit.


Berlin v. Nathan, 64 Ill. App. 3d 940, 381 N.E.2d 1367 (Ill. App. Ct. 1978)