Elijah Muhammad took a somewhat less rash approach and favored a general nonengagement policy in place of more confrontational tactics. Malcolm’s increas ing popularity—as well as his caustic public remarks—began to create tension between him and Elijah Muhammad. Malcolm became frustrated at having to restrain his comments. When President JOHN F. KENNEDY was assas- sinated on November 22, 1963, Malcolm exclaimed that Kennedy “never foresaw that the chickens would come home to roost so soon.” Malcolm later regretted his comment and explained that he meant that the govern- ment’s involvement in and tolerance of violence against African Americans and others had created an atmosphere that contributed to the death of the president. Nevertheless, his com- ments and his increasing public notoriety prompted Elijah Muhammad to “silence” Mal- colm and suspend him as a minister on December 1, 1963. Members of the Nation of Islam were instructed not to speak to him. However, by 1963 Malcolm had become disillusioned by the Nation of Islam, particular- ly with rumors that Elijah Muhammad had been unfaithful to his wife and had fathered several illegitimate children. On March 8, 1964—while still under suspension from the Nation of Islam—Malcolm formally announced his separation from the organization. He soon announced the creation of his own organiza- tion, Moslem Mosque , Incorporated (MMI), which would be based in New York. MMI, Malcolm stated, would be a broad-based black nationalist organization intended to advance the spiritual, economic, and political interests of African America ns. On March 26, Malcolm met for the first and only time with Martin Luther King, in Washington, D.C. King at the time was scheduled to testify on the pending CIVIL RIGHTS ACT OF 1964. In April 1964 Malcolm made a spiritual pilgrimage to Mecca, the holy site of Islam and the birthplace of the prophet Muhammad. He was profoundly moved by the pilgrimage, and said later that it was the start of a radical alteration in his outlook about race relations. Upon his return to the United States, Malcolm began to use the name El-Hajj Malik El-Shabazz Al-Sabann. He also exhibited a profound shift in political and social thinking. Whereas in the past he had advocated against cooperation with other civil rights leaders and organizations, his new philosophy was to work with existing organizations and individuals, including whites, so long as they were sincere in their efforts to secure basic civil rights and freedoms for African Americans. In June 1964 he founded the secular Organization of Afro- American Unity (OAAU), which espoused a pan-Africanist approach to basic HUMAN RIGHTS, particularly the rights of African Americans. He traveled and spoke extensively in Africa to gain support for his pan-Africanist views. He pledged to bring the condition of African Americans before the General Assem bly of the UNITED NATIONS and thereby “internationalize” the civil rights movement in the United States. He further pledged to do whatever was neces- sary to bring the black struggle from the level of civil rights to the level of human rights. When he advocated for the right of African Americans to use arms to defend themselves against violence, he no t only laid the groundwork for a subsequent growth of the BLACK POWER MOVEMENT , but also led many U.S. citizens to believe that he advocated violence. However, in his autobiography, Malcolm said that he was not advocating wanton violence but calling for the right of individuals to use arms in SELF- DEFENSE when the law failed to protect them from violent assaults. In 1965 Malcolm’s increasing public criti- cism of Elijah Muhammad and the Nation of Islam prompted anonymous threats against his life. In his attempts to forge relationsh ips with established civil rights organizations such as the STUDENT NON-VIOLENT COORDINATING COMMITTEE, Malcolm was criti cized severely in the Nation of Islam’s official publications. In a December 1964 article in Muhammad Speaks—the official newspaper of the Nation of Islam—Louis X (now known as Louis Farrakhan) said, “[S]uch a man as Malcolm is worthy of death, and would have met with death if it had not been for Muhammad’s confidence in Allah for victory over the enemies.” On February 14, 1965, Malcolm’s home in Queens, New York—which was still owned by the Nation of Islam—was firebombed while he and his family were asleep. Malcolm attributed the bombing to Nation of Islam supporters but no one was ever charged with the crime. One week later, when Malcolm stepped to the podium at the Audubon Ballroom in New York to present a speech on behalf of the OAAU, he WE ARE NOT FIGHTING FOR INTEGRATION , NOR ARE WE FIGHTING FOR SEPARATION .WE ARE FIGHTING FOR RECOGNITION AS HUMAN BEINGS . W E ARE FIGHTING FOR HUMAN RIGHTS . —MALCOLM X GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 438 MALCOLM X was assassinated. The gunmen, later identified as former or current members of the Nation of Islam, were convicted and sentenced to life imprisonment in April 1966. Malcolm left a complex political and social legacy. Although he was primarily a black nationalist in perspective, his changing philoso- phy and politics toward the end of his life demonstrate the unfinished development of an influential figure. Although some people point to his identification with the Nation of Islam and dismiss him as a racial extremist and anti- Semite, his later thinking reveals profound changes in his perspective and a more universal understanding of the problems of African Americans. In his eulogy of Malcolm, the U.S. actor Ossie Davis said, However we may have differed with him—or with each other about him and his value as a man—let his going from us serve only to bring us together, now. Consigning these mortal remains to earth, the common mother of all, secure in the knowledge that what we place in the ground is no more now a man—but a seed—which, after the winter of our discontent, will come forth again to meet us. FURTHER READINGS Benson, Michael. 2004. Malcolm X. Minneapolis, MN: Lerner. Carson, Clayborne. 1995. Malcolm X: The FBI File. New York: Ballantine. Estell, Kenneth. 1994. African America: Portrait of a People. Canton, MI: Visible Ink. Malcolm X. 1987. The Autobiography of Malcolm X: As Told to Alex Haley. New York: Ballantine Books. “Malcolm X Scores U.S. and Kennedy.” The New York Times (December 2, 1963). Myers, Walter. 1994. Malcolm X: By Any Means Necessary. New York: Scholastic. Natambu, Kofi. 2002. The Life and Work of Malcolm X. Indianapolis, IN: Alpha. MALFEASANCE The commission of an act that is unequivocally illegal or completely wrongful. Malfeasance is a comprehensive term used in both civil and CRIMINAL LAW to describe any act that is wrongful. It is not a distinct crime or TORT, but may be used generally to describe any act that is criminal or that is wrongful and gives rise to, or somehow contributes to, the injury of another person. Malfeasance is an affirmative act that is illegal or wrongful. In tort law it is distinct from misfeasance, which is an act that is not illegal but is improperly performed. It is also distinct from NONFEASANCE, which is a failure to act that results in injury. The distinctions between malfeasance, mis- feasance, and nonfeasance have little effect on tort law. Whether a claim of injury is for one or the other, the plaintiff must prove that the defendant owed a duty of care, that the duty was breached in some way, and that the breach caused injury to the plaintiff. One exception is that under the law of STRICT LIABILITY , the plaintiff need not show the absence of due care. The law of strict liability usually is applied to PRODUCT LIABILITY cases, where a manufacturer can be held liable for harm done by a product that was harmful when it was placed on the market. In such cases the plaintiff need not show any actual malfeasance on the part of the manufacturer. A mistake is enough to create liability because the law implies that for the sake of public safety, a manufacturer warrants a product’s safety when it offers the product for sale. MALICE The intentional commission of a wrongful act, absent justification, with the intent to cause harm to others; conscious violation of the law that injures another individual; a mental state indicat- ing a disposition in disregard of social duty and a tendency toward malfeasance. In its legal application, the term malice is comprehensive and applies to any legal act that is committed intentionally without JUST CAUSE or The actions of Los Angeles residents who rioted and looted in the wake of the 1992 Rodney King trial verdict represented malfeasance, a breach of the duty of care. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MALICE 439 excuse. It does not necessarily imply personal hatred or ill feelings, but rather, it focuses on the mental state that is in reckless disregard of the law in general and of the legal rights of others. An example of a malicious act would be committing the TORT of slander by labeling a nondrinker an alcoholic in front of his or her employees. When applied to the crime of murder, malice is the mental condition that motivates one individual to take the life of another individual without just cause or provocation. In the context of the FIRST AMENDMENT, public officials and public figures must satisfy a standard that proves actual malice in order to recover for LIBEL or slander. The standard is based upon the seminal case of NEW YORK TIMES V . SULLIVAN, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), where the Supreme Court held that public officials and public figures cannot be awarded damages unless they prove that the person accused of making the false statement did so with knowledge that the statement was false or with reckless disregard as to the truth or falsity of the statement. Demonstrating malice in this context does not require the plaintiff to show that the person uttering the statement showed ill will or hatred toward the public official or public figure. MALICE AFORETHOUGHT A predetermination to commit an act without legal justification or excuse. A malicious design to injure. An intent, at the time of a killing, willfully to take the life of a human being, or an intent willfully to act in callous and wanton disregard of the consequences to human life; but malice aforethought does not necessarily imply any ill will, spite or hatred towards the individual killed. MALICIOUS Involving malice; characterized by wicked or mischievous motives or intentions. An act done maliciously is one that is wrongful and performed willfully or inten- tionally, and without legal justification. MALICIOUS MISCHIEF Willful destruction of PERSONAL PROPERTY of another, from actual ill will or resentment towards its owner or possessor. Though only a TRESPASS at the COMMON LAW, it is now a misdemeanor in most states. MALICIOUS PROSECUTION An action for damages brought by one against whom a civil suit or criminal proceeding has been unsuccessfully commenced without PROBABLE CAUSE and for a purpose other than that of bringing the alleged offender to justice. An action for malicious prosecution is the remedy for baseless and malicious litigation. It is not limited to criminal prosecutions but may be brought in response to any baseless and malicious litigation or prosecution, whether criminal or civil. The criminal defendant or civil respondent in a baseless and malicious case may later file this claim in civil court against the parties who took an active role in initiating or encouraging the original case. The defendant in the initial case becomes the plaintiff in the malicious prosecution suit, and the plaintiff or prosecutor in the original case becomes the defendant. In most states the claim must be filed within a year after the end of the original case. A claim of malicious prosecution is a to rt action. A TORT action is filed in civil court to recover money damages for certain harm suffered. The plaintiff in a malicious prosecu- tion suit seeks to win money from the respondent as recompense for the various costs associated with having to defend against the baseless and vexatious case. The public policy that supports the action for malicious prosecution is the discouragement of VEXATIOUS LITIGATION. This policy must compete against one that favors the freedom of law enforcement officers, judicial officers, and private citizens to partic ipate and assist in the administration of justic e. In most jurisdictions an action for malicious prosecution is governed by the COMMON LAW. This means that the authority to bring the action lies in case law from the courts, not statutes from the legislature. Most legislatures maintain some statutes that give certain persons IMMUNITY from malicious prosecution for certain acts. In Colorado, for example, a merchant, a merchant’s employee, or a police officer, who reasonably suspects that a theft has occurred, may detain and question the suspect without fear of liability for slander, false arrest, FALSE IMPRISONMENT , unlawful detention, or malicious GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 440 MALICE AFORETHOUGHT prosecution (Colo. Rev. Stat. Ann. § 18-4-407 [West 1996]). An action for malicious prosecution is distinct from an action for false arrest or false imprisonment. If a person is arrested by a police officer who lacks legal authority for the arrest, the proper remedy is an action for false arres t. If a person is confined against her or his will, the proper remedy is an action for false imprisonment. An action for malicious prose- cution is appropriate only when the judicial system has be en misused. Elements of Proof To win a suit for malicious prosecution, the plaintiff must prove four elements: (1) that the original case was terminated in favor of the plaintiff, (2) that the defendant played an active role in the original case, (3) that the defendant did not have probable cause or reasonable grounds to support the original case, and (4) that the defendant initiated or continued the initial case with an improper purpose. Each of these elements presents a challenge to the plaintiff. The Original Case Was Terminated in Favor of the Plaintiff The original case must end before the defendant or respondent in that case may file a malicious prosecution suit. This requirement is relatively easy to prove. The original case qualifies as a prosecution if the defendant or respondent had to appear in court. The original case need not have gone to trial: it is enough that the defenda nt or respondent was forced to answer to a complaint in court. If the original case is being appealed, it is not considered terminated, and the defendant or respondent must wait to file a malicious pro- secution suit. To proceed with a malicious prosecution claim, the plaintiff must show that the original case was concluded in her or his favor. Generally, if the original case was a criminal prosecution, it must have been dismissed by the court, rejected by the GRAND JURY, abandoned by the prosecutor, or decided in favor of the accused at trial or on appeal. If the original case was a civil suit, the respondent must have won at trial or the trial court must have disposed of the case in favor of the respondent (now the plaintiff). If recovery by the plaintiff in a civil action was later reversed on appeal, this does not mean that the action was terminated in favor of the respondent. However, if the plaintiff in the original case won by submitting fabricated evidence or by other fraudulent activity, a reversal on such grounds may be deemed a termination in favor of the respondent. A settlement between the plaintiff and the respondent in a civil suit is not a termination in favor of the respondent. Likewise, courts do not consider a plea bargain in a criminal case to be a termination in favor of the defendant. The Defendant Played an Active Role in the Origin al Case In a malicious prosecution suit, the plaintiff must prove that the defendant played an active role in procuring or continuing the original case. The plaintiff must prove that the defendant did more than simply participate in the original case. False testimony alone, for example, does not constitute malicious prose- cution. Moreover, witnesses are immune from suit for DEFAMATION, even if they lie on the witness stand. Such is the case because the concept of a fair and free trial requires that witnesses testify without fear of having to defend a defamation suit owing to their testimony. An action for malicious prosecution focuses on the abuse of legal process, not on defama- tory, untruthful statements. If a person helps another person launch a baseless case or takes action to direct or aid such a case, the first person may be held liable for malicious prosecution. The defendant must have been responsible in some way for the institution or continuation of the baseless case. This position of responsibility does not always include criminal prosecutors and civil plaintiffs. For example, if a prosecutor bringing criminal charges is tricked into prose- cuting the case by an untruthful third party, the deceiving party is the one who may be found liable for malicious prosecution, not the prosecutor. The Defend ant Did Not Have Probable CausetoSupporttheOriginalCaseThe plaintiff must prove that the person who began or continued the original case did not have probable cause to do so. Generally, this means proving that the person did not have a reason- able belief in the plaintiff’s guilt or liability. In examining this element, a court will look at several factors, including the reliability of all sources, the availability of information, the effort required to obtain information, opportunities given to the accused to offer an explanation, the reputation of the accused, and the necessity in the original case for speedy judicial action. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALICIOUS PROSECUTION 441 A failure to fully investigate the facts surrounding a case may be sufficient to prove a lack of probable cause. The termination of the original case in favor of the original defendant (now the plaintiff) may help to prove a lack of probable cause, but it may not be decisive on the issue. The plaintiff should present enough facts to allow a reasonable person to infer that the defendant acted without a reasonable belief in the plaintiff ’s guilt or liability in beginning or continuing the original case. In a criminal case, an acquittal does not constitute a lack of probable cause. A criminal defendant stands a better chance of proving lack of probable cause if the original case was dismissed by prosecutors, a grand jury, or the court before the case went to trial. The crimina l process provides several safeguards against pro- secutions that lack probable cause, so a full criminal trial tends to show the presence of probable cause. Civil cases do not have the same safeguards, so a full civil trial does not tend to prove probable cause. The Defendant Initiated or Continued the Original Case with an Improper Purpose In a malicious prosecution, the plaintiff must prove with specific facts that the defendant instituted or continue d the original proceeding with an improper purpose. Sheer ill will con- stitutes an improper purpose, and it may be proved with facts that show that the defendant resented the plaintiff or wanted somehow to harm the plaintiff. However, the plaintiff does not have to prove that the defendant felt personal malice or hostility toward the plaintiff. Rather, the plaintiff need only show that the defendant was motivated by something other than the purpose of bringing the plaintiff to justice. Few defendants admi t to improper pur- poses, so improper purpose usually must be inferred from facts and circumstances. If the plaintiff cannot discover any apparent purpose, improper purpose can be inferred from the lack of probable cause. Hodges v. Gibson Products Co. Hodges v. Gibson Products Co., 811 P.2d 151 (Utah 1991), contained all the elements of a malicious prosecution. According to Chad Crosgrove, the manager of Gibson Discount Center in West Valley, Utah, store money was noticed missing during the afternoon of September 4, 1981. Both Crosgrove and part-time bookkeeper Shauna Hodges had access to the money, and both denied taking it. On September 9 Cros- grove and Gibson officials went to the local police station, where they lodg ed an accusation of theft against Hodges. Crosgrove was not accused. Hodges was arrested, handcuffed, and taken to jail. After a PRELIMINARY HEARING, she was released on bail and ordered to return for trial on May 12, 1982. After Hodges was formally charged, an internal audit at Gibson revealed that Crosgrove had embezzled approximately $9,000 in cash and goods from the store. The thefts had occurred over a time period that included September 4, 1981. Gibson still did not charge Crosgrove with theft. Instead, it allowed him to resign with a promise to repay the money. The night before Hodges’s trial was to begin, and almost two months after Crosgrove’s EMBEZZLEMENT was discovered, management at Gibson notified Hod ges ’s prosecutor of Cros- grove’s activities. The prosecutor immediately dropped the charges against Hodges. Hodges then filed a suit for malicious prosecution against Gibson and against Crosgrove. At trial Hodges was able to prove all the elements of malicious prosecution to the jury’s satisfaction: (1) She had been subjected to prosecution for theft, and the matter had been terminated in her favor. (2) She had sued the correct parties, because Gibson and Crosgrove were responsible for instituting the original proceedings against her. (3) She had ample evidence that the original prosecution was instituted without probable cause because Gibson failed to investigate Crosgrove until after she had been arrested and because the prosecutor dismissed the charges against her. (4) Finally, there were enough facts for the jury to infer that both Gibson and Crosgrove had acted with imp roper motive: Gibson had acted with an apparent bias against Hodges, and Crosgrove apparently had accused Hodges for self-preservation. The jury awarded Hodges a total of $88,000 in damages: $77,000 from Gibson and $11,0 00 from Crosgrove. The verdict was upheld on appeal. Damages The plaintiff in an action for malicious pro- secution can recover money from the defendant for certain harms suffered. Typical injuries include loss of reputation and credit, humilia- tion, and mental suffering. If the original action GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 442 MALICIOUS PROSECUTION was a criminal case, additional harms often include discomfort, injury to health, loss of time, and deprivation of society with family. If the plaintiff suffered an economic loss directly related to the original action, the plaintiff can also recover the amount lost. This amount includes attorneys’ fees and court costs incurred by the plaintiff in defending the original case. Finally, the plaintiff may recover PUNITIVE DAMAGES . Punitive damages are imposed by judges and juries to punish misconduct by a party. Because an action for malicious prosecu- tion requires proof of improper intent on the part of the defendant, punitive damages com- monly are awarded to malicious prosecution plaintiffs who win damages awards. Other Considerations Actions for malicious prosecution must com- pete against the public interest in allowing parties to pursue cases unfettere d by the specter of a retaliatory case. Very few civil or criminal cases result in an action for malicious prose- cution. This is because it is difficult to prove that the defendant procured or continued the original case without probable cau se and with an improper purpose. Another difficulty for the plaintiff in an action for malicious prosecution is immunity. Generally, the law protects witnesses, police officers, judges, prosecutors, and lawyers from suit for malicious prosecution. Witnesses are given immunity because justice requires that they testify without fear of reprisals. Law enforcement and judicial officers are given immunity because they must be free to perform their duties without continually defending against malicious prosecution cases. There are exceptions, however. If a law enforcement or judicial official ventures outside the bounds of official du ties to instigate or continue a malicious prosecution, the official may be vulnerable to a malicious prosecution suit. For example, a prosecutor who solicits fabricated testimony to present to a grand jury may be sued for malicious prosecution. The prosecutor would receive only limited immuni- ty in this instance because the solicitation of evidence is an administrative function, not a prosecutorial function (Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 [1993]). Private parties may also at times enjoy immunity from actions for malicious prosecu- tion. For example, a person who complains to a disciplinary committee about an attorney may be imm une. This general rule is followed by courts to avoid discouraging the reporting of complaints against attorneys. FURTHER READINGS American Law Institute. Restatement (Second) of Torts, div. 7, ch. 29, topic 2, §§659–661. 1977. St. Paul, MN: American Law Institute. Cooper, David R. 1993. “Attorneys as Plaintiffs: Absolute Immunity for Ethics Complainants Bars Suit by Attorney for Malicious Prosecution [Jarvis v. Drake, Kan. 830 P.2d 23 (1992)].” Washburn Law Journal 32. Linscott, Steven, with Randall L. Frame. 1994. Maximum Security: The True Story of Steven Linscott. Wheaton, IL: Crossway. Schillaci., Jacques L. 2002. “Unexamined Premises: Toward Doctrinal Purity in Section 1983 Malicious Prosecution Doctrine.” Northwestern University Law Review 97 (fall). Sherwood, Carlton. 1991. Inquisition: The Persecution and Prosecution of the Reverend Sun Myung Moon. Washing- ton, D.C.: Regnery. Silver, Isidore. 1989. Police Civil Liability: Law and Practice. New York: Matthew Bender. Toomey, Kate A. 2002. “Practice Pointer: The Rule against Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter.” Utah Bar Journal 15 (December). Available online at http://www.utahbar.org/barjour nal2000/html/december_2002_4.html; website home page: http://www.utahbar.org (August 12, 2009). Weber, Christopher W. 1994. “The Loss of Consortium- Malicious Prosecution Nexus: No Recovery for Loss of Spousal Consortium Absent Physical Injury and No Recovery for Malicious Prosecution beyond the Person Prosecuted: Browning Ferris Industries v. Lieck, 881 S.W.2d 288 (Tex. 1994).” Texas Tech Law Review 26. Zbytowski, Jennifer S. 1995. “The Case against Section 1983 Immunity for Witnesses Who Conspire with a State Official to Present Perjured Testimony.” Michigan Law Review 93. CROSS REFERENCES False Arrest; Malice; Probable Cause; Tort Law. MALPRACTICE The breach by a member of a profession of either a standard of care or a standar d of conduct. Malpractice refers to NEGLIGENCE or miscon- duct by a professional person, such as a lawyer, a doctor, a dentist, or an accountant. The failure to meet a standard of care or standard of conduct that is recognized by a profession reaches the level of malpractice when a client or patient is injured or damaged because of error. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALPRACTICE 443 After the 1970s the number of malpractice suits filed against professionals greatly in- creased. Most malpractice suits involved doc- tors, especially surgeons and other specialists who performed medical procedures with a high degree of risk to their patients. Large damage awards against doctors resulted in higher malpractice insurance costs. Similarly, the increase of malpractice awards against lawyers led to higher insurance premiums and caused some insurance companies to stop writing malpractice policies altogether. The typical malpractice suit will allege the TORT of negligence by the professional. Negli- gence is conduct that falls below the legally established standard for the protection of others against unreasonable risk of harm. Under negligence law a person must violate a reason- able standard of care. Typically this has meant the customary or usual pra ctice of members of the profession. For example, if a surgeon leaves a sponge or surgical tool inside a patient, the surgeon’s carelessness violates a basic standard of care. Likewise, if an attorney fails to file a lawsuit fo r a client within the time limits required by law, the attorney may be charged with negligence. Medical Malpractice Among physicians, malpractice is any bad, unskilled, or negligent treatment that injures the patient. The standard of care formerly was considered to be the customary practice of a particular area or locality. Most states have modified the “locality rule” into an evaluation of the standard of practice in the same or similar locality, combined with an examination of the state of development of medical science at the time of the incident. This modification has taken place as medicine has become increasingly uniform and national in scope. A majority of states define the standard of conduct as that degree of skil l and learning ordinarily possessed and used by other members of the profession. A doctor who has met the standard, as established by EXPERT TESTIMONY at trial, cannot generally be found negligent. Some states have passed statutes that establish the standard of the profession as the test of whether particular treatment was negligent. Specialists within the medical field are generally held to standards of care that are higher than those for general practitioners. In addition, a specialist or anyone undertaking to perform procedures ordinarily done by a specialist will be held to the level of perfor- mance applied to that specialty, although the person may not actually be a certified specialist in that field. A small number of states apply the “respect- able minority rule” in evaluating doctors’ conduct. This rule exempts a physician from liability where he chooses to follow a technique used only by a small number of respected practitioners. Courts, however, frequently have difficulty in determining what is a respectable minority of physicians or acceptable support for a particular technique. Some states use the “error in judgment rule.” This principle holds that a medical professional who otherwise subscribes to appli- cable professional standards should not be found to have committed malpractice merely because she committed an error in judgment in choosing among different therapeutic approaches or in diagnosing a condition. Legal Malpractice The four general areas of LEGAL MALPRACTICE are negligent errors, negligence in the profes- sional relationship, fee disputes, and claims filed by an adversary or nonclient against a lawyer. As in the medical field, lawyers must conform to standards of conduct recognized by the profession. A lawyer has the duty, in all dealings and relations with a client, to act with honesty, GOOD FAITH , fairness, integrity, and fidelity. A lawyer must possess the legal skill and knowledge that is ordinarily possessed by members of the profession. Once the lawyer and the client terminate their relationship, a lawyer is not allowed to acquire an interest that is advers e to a client, in the event that this might constitute a breach of the ATTORNEY-CLIENT PRIVILEGE. In addition, lawyer cannot use information that he or she obtained from a client as a result of their relationship. For example, it would constitute unethical behavior for an attorney to first advise a client to sell a piece of property so it would not be included in the client’s PROPERTY SETTLE- MENT upon DIVORCE and then to purchase the property from the client for half its market value. Any dealings that a lawyer has with a client will be carefully examined. Such dealings require fairness and honesty, and the lawyer GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 444 MALPRACTICE must show that no UNDUE INFLUENCE was exercised and that the client received the same benefits and advantages as if she had been dealing with a stranger. If the client had independent legal advice about any transaction, that is usually sufficient to meet the lawyer’s burden to prove fairness. A lawyer al so has the duty to provide a client with a full, detailed, and accurate account of all money and property handled for him or her. The client is entitled to receive anything that the lawyer has acquired in violation of his duties to the client. If a lawyer fails to promptly pay all funds to his client, the lawyer may be required to pay interest. A lawyer is liable for fraud—except when the client caused the attorney to commit fraud—and is generally liable for any damages resulting to the client by his negligence. In addition, a lawyer is responsible for the acts of his associates, clerks, legal assistants, and partners and may be liable for their acts if they result in losses to the client. Negligent errors are most commonly asso- ciated with legal malpractice. This category is based on the premise that an attorney has committed an error that would have been avoided by a competent attorney who exercises a reasonable standard of care. Lawyers who give improper advice, improperly prepare docu- ments, fail to file documents, or make a faulty analysis in examining the title to real estate may be charged with malpractice by their clients. A legal malpractice action, however, is not likely to succeed if the lawyer committed an error because an issue of law was unsettled or debatable. Many legal malpractice claims are filed because of negligence in the professional relationship. The improper and unprofessional handling of the attorney-client relationship leads to negligence claims that are not based on the actual services provided. Lawyers who fail to communicate with their clients about the difficulties and realiti es of the particular claim risk malpractice suits from dissatisfied clients who believe that their lawyer was responsible for losing the case. Another area of legal malpractice involves fee disputes. When attorneys sue clients for attorneys’ fees, many clients assert malpractice as a defense. As a defense, it can reduce or totally eliminate the lawyer’s recovery of fees. The frequency of these claims is declining, in part perhaps because attorneys are reluctant to sue to recover their fees. A final area of legal malpractice litigation concerns claims that do not involve a deficiency in the quality of the lawyer’s legal services provided to the client, but an injury caused to a third party because of the lawyer’s representa- tion. This category includes tort claims filed against an attorney alleging MALICIOUS PROSECU- TION , ABUSE OF PROCESS, DEFAMATION, infliction of emotional distress, and other theories based on the manner in which the attorney represented the client. These suits rarely are successful except for malicious prosecution. Third-party claims also arise from various statutes, such as SECURITIES regulations, and motions for sanc- tions, such as under Federal Rule of Civil Procedure 11. Clergy Malpractice A growing number of lawsuits against chu rches and clergy began to be filed in the 1980s, where plaintiffs sued churches as they might sue a corporation or a government agency. Those lawsuits alleged CLERGY MALPRACTICE. In them, the plaintiffs claimed that clergy members should be legally held to a higher standard of conduct than ordinary citizens should, in the same way as other professionals in positions of trust, such as doctors or lawyers. The majority of courts have ruled that standards of clergy conduct would violate the First Amendment’s separation of church and state. However, some courts have accepted narrower claims accusing individual clergy members of inflicting emotional distress or breaching their fiduciary duty. In Nally vs. Grace Community Church of the Valley, 763 P.2d 948 (Cal. 1988), the California Supreme Court in 1988 rejected a lawsuit accusing the pastors of a Pro testant church in Los Angeles of negligence for failing to prevent the 1979 suicide of a 24-year-old man who was a church member. The lawsuit, brough t by his parents, argued that the pastors should have referred him to a professional counselor when they learned he had suicidal tendencies. In 2001 the Utah Supreme Court unani- mously upheld the dismissal of Franco v. The Church of Jesus Christ of Latter-day Saitns, 21 P.3d 19 (Utah 2001). In that case, Lynette Franco sued the MORMON CHURCH for negligence for telling her to forgive and forget a 1986 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALPRACTICE 445 incident in which she claimed to have been the victim of child rape at the hands of another church member. Lawyers for Franco had initially included an allegation of clergy mis- conduct in the lawsuit, but later dropped it, focusing instead on FRAUD, negligence and infliction of distress. But the court rejected it nevertheless, ruling that setting a standard for clergy conduct would embroil the courts in establishing the training, skill and standards applicable for members of the clergy in this state in a diversity of religions professing widely varying beliefs. The justices, all Mormons, were unanimous in their ruling. FURTHER READINGS Mallen, Ronald E., and Jeffrey M. Smith. 2008. Legal Malpractice. Eagan, MN: West. Rosenblum, James. 1993. Malpractice Solutions Coming to Doctor’s. Knoxville, TN: Whittle Direct. Taxman, Phil, and Jann Robbins. 2009. Malpractice. Wales, MA: PJ Books. CROSS REFERENCES Attorney Misconduct; Ethics, Legal; Health Care Law; Medical Malpractice; Physicians and Surgeons; Privileged Communication. MAN-IN-THE-HOUSE RULE A regulation that was formerly applied in certain jurisdictions that denied poor families WELFARE payments in the event that a man resided under the same roof with them. Under the man-in-the-house rule, a child who otherwise qualified for welfare benefits was denied those benefits if the child’s mother was living with, or having relations with, any single or married able-bodied male. The man was considered a substitute father, even if the man was not supporting the child. Before 1968 administrative agencies in many states created and enforced the man-in- the-house rule. In 1968 the U.S. Supreme Court struck down the regulation as being contrary to the legislative goals of the Aid to Families of Dependent Children (AFDC) program. The AFDC program, established by the Social Security Act of 1935 (49 Stat. 620, as amended [42 U.S.C.A. § 301 et seq.]), provides benefits to the children of impoverished parents. In King v. Smith, 392 U.S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968), the U.S. Supreme Court entertained a challenge to the man-in-the-house rule brought by the four children of Mrs. Sylvester Smith, a widow. These children were denied benefits by Dallas County, Alabama, welfare authorities based on their knowledge that a man named Williams was visiting Smith on weekends and had sexual relations with her. The children of Smith filed a CLASS ACTION suit in federal court on behalf of other children in Alabama who were denied benefits under Alabama’s “substitute father” regulation. This regulation considered a man a substitute father if (1) he lived in the home with the mother; (2) he visited the home frequently for the purpose of living with the mother; or (3) he cohabited with the mother elsewhere (King, citing Alabama Manual for Administration of Public Assistance, pt. I, ch. II, § VI). Testimony in the case revealed that there was some confusion among the authorities over how to interpret the regulation. One official testified that the regulation applied only if the parties had sex at least once a week, another official testified that sex every three months was sufficient, and still another placed the frequency at once every six months. According to the High Court, Congress did not intend that the AFDC program require children “to look for their food to a man who is not in the least obliged to support them.” The Court maintained that when Congress used the term parent in the SOCIAL SECURITY ACT, it was referring to “an individual who owed to the child a state-imposed legal duty of support.” Ultimate- ly, the Court struck down the man-in-the-house rule by holding that under the AFDC provisions in the Social Security Act, “destitute children who are legally fatherless cannot be flatly denied federally funded assistance on the transparent fiction that they have a substitute father.” MANAGED CARE Managed care is a general term that refers to health plans that attempt to control the cost and quality of care by coordinating medical and other health-related services. The U.S. health care system has undergone major structural changes since the 1970s. The traditional way of obtaining medical care has been for a patient to choose a doctor and then pay that doctor for the services provided. This fee-for-service model, which has been financial- ly rewarding for doctors, gives the patient the right to choose a physician. But the fee-for- service model underwen t a rapid decline in the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 446 MAN-IN-THE-HOUSE RULE 1980s and 1990s as the concept of managed care took hold in the health care industry. Managed care is a new term for an old medical financing plan known as the health maintenance organization (HMO). HMOs are not insured plans. They are prepaid health care systems, of fering services to which the member is entitled, as opposed to a dollar amount guaranteed by an insurance policy. Doctors are paid a set amount of money monthly for each patient regardless of the level or frequency of care provided. HMOs emphasize preventive care. They became popular with employers who purchase health care coverage for their employees because they charged lower fees than insurance plans that reimburse patients for fee-for-service payments. Holding down the cost of medical care was one of the chief aims of HMOs. The first HMOs were started around 1930. The Kaiser Foundation Health Plan of California was one of the first and largest HMOs. Another large HMO is the Health Insurance Plan of Greater New York. Both Kaiser and Health Plan also have their own hospitals. The federal government has promoted HMOs since the 1970s, enacting the Health Maintenance Orga- nization Act of 1973 (87 Stat. 931) and other legislation that allows HMOs to meet federal standards for MEDICARE and MEDICAID eligibility. A person who participates in an HMO deals with a primary care physician, who directs the person’s medical care and determines whether he or she should be referred for specialty care. This gatekeeper function has drawn both criti- cism and praise. Critics argue that a person restricted to a physician not of his or her choosing, who has complete control over whether the person will be seen by a specialist or be given special drugs or treatments. Critics also argue that HMO physicians are not allowed to perform thorough testing procedures becaus e of the dema nds of HMO management to limit costs and that this ultimately leads to rationing of medical treatment. Advocates of HMOs and managed care argue that it is an advantage to the patient to have one physician with full responsibility for his or her care. With few exceptions, these primary care physicians are trained as general practitioners, family practice physicians, pedia- tricians, internists, or obstetrician-gynecologists. The debate over NATIONAL HEALTH CARE reform escalated during the first term of the Clinton administration. President BILL CLINTON sought to overhaul the U.S. health care system by guaranteeing universal coverage while simul- taneously controlling costs. His plan, which emphasized the managed care model, died in Congress, yet managed care continues to grow. Medicaid, the state-operated, but federally and state-funded health care plans for the poor, started in 1966 as a fee-for-service program. By the 1990s, the conversion of Medicaid to a managed care model of service delivery had grown rapidly, serving as many as 10 million people. The early promise of HMOs has given way to deep concerns about the steady escalation of health care costs. From 2004 to 2009, double- digit, annual premium increases were hurting employers, employees, and small business own- ers who purchase their own health insurance. From 1999 to 2009 employers saw their premiums rise 120 percent. HMOs defend the rise in costs by pointing to advances in medical technology that require the purchase of high- priced equipment, rising prescription drug prices, and a U.S. population that demands increasingly more services, in particular the aging baby-boomer population. To manage Enrollment in Health Maintenance Organizations (HMOs), 1980 to 2006 0 5 15 10 20 25 30 35 24.5 26.4 23.4 30.0 19.4 13.4 7.9 4.0 1980 1985 1990 1995 2000 2002 2004 2006 Year Percentage of total U.S. population SOURCE: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, Health, United States, 2007. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MANAGED CARE 447 . forget a 19 86 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALPRACTICE 445 incident in which she claimed to have been the victim of child rape at the hands of another church member. Lawyers for. injured or damaged because of error. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MALPRACTICE 443 After the 1970s the number of malpractice suits filed against professionals greatly in- creased reporting of complaints against attorneys. FURTHER READINGS American Law Institute. Restatement (Second) of Torts, div. 7, ch. 29, topic 2, § 65 9 66 1. 1977. St. Paul, MN: American Law Institute. Cooper,