JOHN I. MASON, MICHELLE FAETH, AND DEBORAH TOPP v. KENNETH BALL, AND JOHN TARRANT, D.M.D. and KENNETH BALL v. HONORABLE THOMAS J. KNOPF, JUDGE
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RENDERED:
NOVEMBER 9, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002506-MR
JOHN I. MASON,
MICHELLE FAETH, AND
DEBORAH TOPP
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 98-CI-006963
KENNETH BALL, AND
JOHN TARRANT, D.M.D.
TO BE HEARD WITH:
APPELLEES
NO. 2001-CA-000111-MR
KENNETH BALL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 98-CI-006963
MICHELLE FAITH
(N/K/A MICHELLE FAETH MASON)
APPELLEE
OPINION
AFFIRMING APPEAL NO. 2000-CA-002506-MR
AND
DISMISSING APPEAL NO. 2001-CA-000111-MR
** ** ** ** **
BEFORE: BARBER, DYCHE AND MILLER, JUDGES.
MILLER, JUDGE:
These appeals spring from an Opinion and Order
entered in the Jefferson Circuit Court on May 17, 1999, and a
subsequent Order entered in the same proceeding on December 14,
2000.
We affirm in Appeal No. 2000-CA-002506-MR, and dismiss as
moot Appeal No. 2001-CA-000111-MR.
The facts of the case are these:
Sometime prior to
January, 1997, the office of Attorney General initiated an
investigation of John I. Mason, D.M.D., and the Mason Dental
Clinic1 owned by him in Jefferson County, Kentucky.
The object
of the investigation was to determine whether the clinic had been
improperly billing the Kentucky Medical Assistance Program (KMAP)
in violation of Kentucky Revised Statutes (KRS) 194.505 (now
194B.505).
The investigation was conducted in part by Kenneth
Ball, a Medicaid investigator for the office of the Attorney
General.
In furtherance of the investigation, the office of
Attorney General retained the services of one John Tarrant,
D.M.D., as a consultant for the purpose of reviewing dental
records of patients as well as the billing records of Mason
Clinic.
Dr. Tarrant examined certain former patients of the
clinic to determine what services had in fact been rendered.
1
J. Mason, D.M.D. & Associates, P.S.C.
-2-
As an outgrowth of the investigation, indictments were
returned against Dr. John Mason, and Michelle Faeth2 in December,
1997.
In April, 1998, an indictment was returned against Deborah
Topp, D.M.D., a professional employee of the clinic.
These
indictments were subsequently disposed of by agreement.
On December 11, 1998, Dr. John Mason, Michelle Faeth,
and Deborah Topp, brought the instant proceedings in the
Jefferson Circuit Court naming as defendants the appellees,
Kenneth Ball, and Dr. John Tarrant.
The action sounded in
malicious prosecution, defamation, negligence, and interference
with prospective economic advantage.
Various orders were entered
in the action culminating in the two appeals before us.
Preserved for appeal are the claims of Mason, Faeth and
Topp against Dr. Tarrant for negligence, and the claim of Faeth
for malicious prosecution against Ball.
We shall discuss the
appeals separately.
APPEAL NO. 2000-CA-002506-MR
Faeth argues that summary judgment was improperly
granted in favor of Ball upon her malicious prosecution claim.
Summary judgment is proper where there exists no material issue
of fact, and movant is entitled to judgment as a matter of law.
CR 56; Steelvest, Inc. v. Scansteel Service Center, Inc., Ky.,
807 S.W.2d 476 (1991).
Faeth was indicted by the grand jury of complicity to
commit Medicaid fraud.
The indictment was dismissed with
2
Faeth was the clinic's office administrator in charge of
billing. She later married Dr. Mason.
-3-
prejudice pursuant to her agreement to testify truthfully in
trials of various clinic dentists.
To prevail upon a claim of malicious prosecution, it
must be demonstrated that the action was terminated in favor of
the accused.
Raine v. Drasin, Ky., 621 S.W.2d 895 (1981).
The
circuit court concluded that “a dismissal by compromise of the
accused is not a termination favorable to the accused,” and,
thus, Faeth's malicious prosecution claim must fail.
Campbell, Ky. App., 911 S.W.2d 281, 284 (1995).
to agree.
Broaddus v.
We are compelled
Restatement (Second) of Torts § 660(a) (1977).
We believe, as the circuit court, that Faeth's
agreement to testify was a “compromise,” as it amounted to waiver
of her Fifth Amendment right against self-incrimination.
Thus,
we think the action was not terminated in favor of Faeth and
that summary judgment was properly entered in favor of Ball as a
matter of law. Id.
Mason, Faeth and Topp also contend that the circuit
court erred by entering summary judgment dismissing their claims
of medical negligence against Dr. Tarrant.
Dr. Tarrant reviewed
dental records and examined patients pursuant to a contractual
duty with the Office of the Attorney General, Medicaid Fraud
Division.
Mason, Faeth and Topp allege that Dr. Tarrant was
negligent in his duties, thereby causing indictments to be
returned by the grand jury against them.
The circuit court held
that Dr. Tarrant owed no duty of care to Mason, Faeth or Topp,
thus dismissing their claims of medical negligence as a matter of
law.
We agree.
-4-
We know of no legal duty that could be imposed upon Dr.
Tarrant for the benefit of Mason, Faeth or Topp.
Mason, Faeth
and Topp were not in privity with Dr. Tarrant, were not third
party beneficiaries3 to the contract with the Attorney General,
and were not patients of Dr. Tarrant.
As Mason, Faeth and Topp
did not use or rely upon Dr. Tarrant's medical opinions, we
reject the notion that Restatement (Second) of Torts § 552 (1977)
imposes such a duty upon Dr. Tarrant.
We also observe that any
statements made by Dr. Tarrant while testifying before the grand
jury were absolutely privileged.
See Hayes v. Rodgers, Ky., 447
S.W.2d 597 (1969); McClarty v. Bickel, 155 Ky. 254, 159 S.W. 783
(1913).
Hence, we hold that summary judgment was properly
entered in favor of Dr. Tarrant as a matter of law.
APPEAL NO. 2001-CA-000111-MR
Ball brings this appeal from a discovery order entered
by the circuit court after Appeal No. 2000-CA-002506-MR was
taken.
In view of our decision in the former appeal, it seems to
us that Appeal No. 2001-CA-000111-MR is now MOOT.
For the foregoing reasons, the Opinion and Order of the
Jefferson Circuit Court in Appeal No. 2000-CA-002506-MR is
affirmed.
Appeal No. 2000-CA-000111-MR is DISMISSED.
ALL CONCUR.
3
It is well-established that “no stranger to a contract may
sue for its breach unless the contract was made for his benefit.”
Sexton v. Taylor County, Ky. App., 692 S.W.2d 808, 810 (1985).
-5-
BRIEF FOR APPELLANTS,
BRIEF FOR APPELLEE, JOHN
TARRANT, D.M.D.:
JOHN I. MASON, D.M.D.,
MICHELLE FAETH AND
DEBORAH TOPP:
Jo Alice Van Nagell
Lexington, Kentucky
Michael D. Ekman
Louisville, Kentucky
BRIEF FOR APPELLEE, KENNETH
BALL:
BRIEFS FOR APPELLANT,
KENNETH BALL:
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Frankfort, Kentucky
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
D. Brent Irvin
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLEE,
KENNETH BALL AND JOHN
TARRANT, D.M.D:
Michael D. Ekman
Louisville, Kentucky
-6-
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