(dissenting). Upon being admitted to practice law in this Commonwealth, attorneys take an oath that they shall “not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same; [and] will delay no man for lucre or malice . . . .” G. L. c. 221, § 38. See St. 1701-2, c. 7, § 2. All too often attorneys (old and new) have to be reminded that this oath should not merely be uttered at the initial ceremony, and forgotten as soon as the registration book is signed.
The insurer’s conduct in commencing this action inevitably leads to the proverbial quandary — what did it and its agents know and when did they know it? See Bednarz v. Bednarz, 27 Mass. App. Ct. 668, 672 (1989). While I agree with the majority that there remains a triable issue whether Travelers brought suit against Dr. Chervin without probable cause, I also conclude that the summary judgment record is adequate for Chervin to withstand Travelers’s motion on the elements of malice, favorable termination, and damages. I therefore respectfully dissent.
1. Malice. I am of opinion that on this record a fact finder could reasonably find that the insurer acted with an improper motive, as well as knowing that there was no probable cause.
“To raise a genuine issue of material fact on the question of malice, the plaintiff must come forward with some *406evidence that would permit a fact finder to conclude that [the defendant] (1) knew there was no probable cause, and (2) acted with an improper motive, . . . i.e., acted ‘primarily for a purpose other than that of properly adjudicating’ the claim. G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273 (1991). . . . More specifically, the plaintiff must show that [the defendant] was ‘attempting to achieve an unlawful end or a lawful end through unlawful means,’ or intended to harass, vex or annoy [him]. Beecy v. Pucciarelli, [387 Mass. 589,] 594 n.9 [1982]. Wanton or negligent behavior is insufficient without some evidence of an ulterior purpose.”
Sklar v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 557 (2003). “[T]o do a wrong and unlawful act knowing it to be such, constitutes legal malice.” Wills v. Noyes, 12 Pick. 324, 328 (1832).
“The malice necessary to be shown in order to maintain this [malicious prosecution] action, is not necessarily revenge or other base and malignant passion. Whatever is done wilfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is in legal contemplation malicious.”
Beecy v. Pucciarelli, 387 Mass. at 594 n.9, quoting from Wills v. Noyes, supra at 327-328.
The judge commented that it was not uncommon or fundamentally unfair for the insurer to have filed the action notwithstanding the absence of a malpractice opinion necessary for ultimate success. Even accepting that view, which I find somewhat problematic, a fact finder could fairly conclude that the insurer knew that it unambiguously lacked an absolutely necessary component for this malpractice action, i.e., a cooperating employee. Bolger and Moscala were aware that the employee had consistently refused to cooperate, despite Attorney Schneider’s feeling that he could “talk [the employee] into cooperating” eventually. They knew full well that the employee’s cooperation would be essential to the case. A fact finder could thus conclude that commencement of the action, with knowledge that a necessary component would not be forthcoming, was the commencement of an action not for proper *407adjudication of the claim, but rather, as Chervin argues, for forcing a settlement by professional embarrassment of a medical doctor by the commencement of a medical malpractice action against him. See Restatement (Second) of Torts § 676 comment c (1977). I am satisfied that Chervin presented sufficient evidence on the question of malice.
2. Favorable termination. The malpractice action was dismissed because the employee refused to sign interrogatory answers. The insurer, arguing that this is a mere technical or procedural defect that should not constitute a favorable termination, relies upon Wynne v. Rosen, 391 Mass. 797, 801 (1984). Chervin cites the same case for authority that the default judgment was a favorable termination that, in the circumstances, reasonably shows the termination as consistent with his nonculpability in the underlying case.1 See id. at 800-801.
I think that Chervin presented sufficient evidence for a fact finder to conclude that Travelers commenced the underlying action knowing that it did not have the necessary components for the prosecution of its case, i.e., a cooperating plaintiff-employee and an identified medical expert.2 The immediate basis for the dismissal was the lack of the plaintiff-employee component, known by Travelers to have been missing, ab initia.
I am of opinion from my reading of Wynne, and Chervin’s argument, that if the rule were otherwise, anyone could file a lawsuit with malice and without probable cause and then escape all liability simply by defaulting on discovery after the damage was already done. The default judgment in this case was a favorable termination for purposes of this malicious prosecution *408action, not the result of a mere procedural or technical defect. See Noel v. Plymouth, 895 F. Supp. 346, 355 (D. Mass. 1995).
3. Damages. The insurer argues that Chervin has not established causation or the amount of damages, and that on this basis alone his action was properly dismissed. I disagree. The commencement of a malpractice action against a physician is, in my view, a “statement[] that may prejudice the [individual’s] profession or business.” Ravnikar v. Bogojavlensky, 438 Mass. 627, 630 (2003). Mental suffering, distress, harassment, and “much inconvenience” are recognized, for damage purposes, if caused by the alleged abuse of process. American Velodur Metal, Inc. v. Schinabeck, 20 Mass. App. Ct. 460, 470 (1985). See Malone v. Belcher, 216 Mass. 209, 212 (1913); Titcomb v. Bay State Grocery Co., 254 Mass. 599, 601 (1926). The malpractice complaint was a public record and Chervin was required to disclose it to State licensing boards, hospitals, . physician associations, and insurers.
I would reverse the judgment dismissing the complaint and remand the matter for further proceedings.
The underlying case in Wynne v. Rosen was a criminal case that was abandoned by the prosecutor. The court held, essentially, that for purposes of maintaining a civil action for malicious prosecution, the underlying criminal prosecution is deemed to have terminated in favor of the defendant when the prosecutor formally abandons the proceeding either by entering a nolle prosequi or by moving for a dismissal, provided that the circumstances of the abandonment compel an inference that reasonable grounds to pursue the prosecution were lacking. That court further held that the reasons stated for the abandonment must be consistent with the innocence of the accused. 391 Mass. at 800-801.
Bolger and Moscala knew that five medical malpractice lawyers had refused the case and that “there was no identified medical expert to support the claim of malpractice.”