In the current medical malpractice system, physicians face many medico-legal challenges. Evidence suggests that some physicians, especially those in high-risk specialties such as obstetrics/gynecology OB/GYN and neuro-surgery, are retiring early, limiting their practice, or leaving medicine alto-gether, due in no small part to escalating malpractice insurance costs and runaway jury verdicts. The American Medical Association states that, as of 2006, 20 states are currently in a medical malpractice crisis and 23 others are showing signs of a crisis. At the center of this problem is the frivolous lawsuit. Evidence shows that only 20% of malpractice suits are based on adverse events related to negligence, but 50% of all malpractice suits result in a verdict for the plaintiff. Further, the cost of defending a malpractice suit at trial, even where the physician wins, is about $91,800. Although var-ious reforms have been proposed or enacted, the problem of unfounded medical malpractice litigation remains. One potential defense is the physi-cian countersuit.1This chapter will provide insight into this legal remedy and explain when and where it may be appropriately used.
Countersuits by Physicians
Charles R. Ellington, Jr., M.D., J.D.
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1. Courts generally disfavor physician countersuits.
2. The strict legal criteria must be met to win a countersuit.
3. To win a malicious prosecution case, there must be a lawsuit filed against the physician without probable cause, with malice, and the suit must be terminated in favor of the physician. This termination cannot be on technical grounds but must reflect on the merits of the case.
4. Settling a case eliminates your chances of successfully suing for malicious prosecution.
5. In some states, the physician must show special damages to win a malicious prosecution claim. Special damages are those beyond what a physician would normally incur in a lawsuit.
6. To win an abuse of process case, the physician must show that the other side made improper use of the legal process for an ulterior purpose. 7. An ulterior motive alone is not enough to win an abuse of process claim.
G O L D E N R U L E S
ISSUES
Introduction
Physicians sued for frivolous claims have the right to countersue the plain-tiff and the attorney who filed the original malpractice suit.2However, these
C A S E P R E S E N T A T I O N
Mrs. I. Sue Yoo, a 55-year-old female, went to see her family physician, Dr. I. M. Brilliant, for her routine annual exam. During the visit Mrs. Yoo stated that she had been having chest pain off and on for several weeks. She described the pain as a substernal burning and heaviness lasting up to an hour. It occurred about two times per week and was not associated with any activity. It radiated to her back but not her arm. She also complained of acid reflux symptoms, especially after eating two large burritos at the local Mexican restaurant. She could not remember if the chest pain was associated with food. After reviewing her risk factors, including smoking, obesity, and a family history of coronary artery disease, Dr. Brilliant ordered an EKG, which showed normal sinus rhythm with no obvious abnormalities. No prior EKGs were available.
Ever conscientious, Dr. Brilliant referred Mrs. Yoo to a cardiologist, Dr. Smarty Pants, who practiced in a nearby city and was affiliated with a nationally recognized heart program. Dr. Pants agreed to see Mrs. Yoo the next day, at which time he administered a nuclear stress test. The test revealed a significant perfusion defect, and a subsequent cardiac catheteriza-tion revealed significant three-vessel disease with a 99% stenosis in the left anterior descending artery. Within three days of seeing Dr. Brilliant, Mrs. Yoo was in the operating room undergoing coronary artery bypass and grafting by nationally renowned cardiovascular surgeon, Dr. Divine. Although the surgery was a success, the heart/lung machine unfortunately was contaminated with another patient’s blood. As a result, Mrs. Yoo contracted hepatitis C.
Mrs. Yoo, through her attorneys Larry, Mo, and Curly, filed a lawsuit against the hospital, Dr. Divine, Dr. Pants, and Dr. Brilliant. She also sued Dr. Soused, Dr. Brilliant’s partner, who had no contact with the patient except that he said “Hi” to the patient as she walked down the hall for her appointment. Shortly after being named as a defendant, Dr. Soused received a signed letter from Larry, Mo, and Curly saying “If you don’t pay up, we’ll expose you for the lush that you are!” Fearing his prior drinking problem would be made public if he went to trial, Dr. Soused settled with the patient for $20,000. Due to a mix-up at her attorneys’ office, Mrs. Yoo’s claim against Dr. Pants was not filed until a day after the statute of
limitations expired. As a result the action against Dr. Pants was dismissed on technical grounds. Further, the claim against Dr. Brilliant was dismissed for failure to state a claim, since there was no allegation that she did anything wrong. The case against Dr. Divine and the hospital went to trial. Prior to a verdict in the case, all four physicians filed a countersuit against Mrs. Yoo and her attorneys for malicious prosecution and abuse of process.
suits are often difficult to prove and meeting the legal burden to win is very challenging. Courts generally disfavor physician countersuits, citing the public policy that the courts should be open to all potential litigants with-out fear of punishment. Only in extreme cases where every legal require-ment is met can the physician win. This is one reason why many physicians shy away from pursuing them. The cost in time and money with such a small chance of success is often not worth it to many physicians, who just want to get on with their lives after a distasteful encounter with the legal system. Some, however, are taking on this challenge with the hope that it will deter future frivolous suits.3
Physicians may pursue a countersuit under two theories: malicious pros-ecution and abuse of process.4Each theory is described below. Other legal theories, such as defamation, infliction of emotional distress, invasion of privacy, legal malpractice, prima facie tort, violation of attorney’s ethical code, willful and wanton institution of a lawsuit, harassment, and civil rights violation, have not been successful and probably will not be in the future.
Malicious Prosecution
Malicious prosecution is the most likely theory under which a physician may prevail on a countersuit. However, even malicious prosecution is diffi-cult to win and the physician must prove each element of the claim. Those elements are as follows:
■ The defendant filed a lawsuit against the physician; ■ The suit was filed or continued without probable cause; ■ The defendant filed the suit with malice;
■ A favorable termination of the underlying lawsuit; and ■ Injury to the physician as a result of the suit.
The first element, the defendant filing a lawsuit against the physician, is obvious from the record and is rarely the subject of dispute.
The second element, probable cause, is often difficult to prove. Probable cause means that a person or attorney, based upon the facts known at the time the suit was instituted, reasonably believed they could win the case. Lack of probable cause may occur where the attorney intentionally ignored certain facts or did not reasonably investigate the facts of the case. Probable cause may arise from certain facts such as a thorough investigation of the case by the attorney or utilizing an expert witness. The fact that the attorney does not have an expert witness at the time of filing, however, does not prove a lack of probable cause. Neither does a less than thorough inves-tigation, especially where time is limited. Even if the facts of the case prove to be weak, as long as there was a reasonable belief that the facts merited litigation, there is probable cause. Clearly, the element of lack of probable cause is a major barrier to successfully winning a malicious prose-cution claim.
The third element, malice, requires a wrongful purpose or motive. It means pursuing a legal claim for a purpose other than appropriately adjudi-cating a claim. It does not arise, however, solely from a contingent-fee arrangement. It is often inferred by proving a lack of probable cause.
The fourth element, a favorable termination of the underlying malprac-tice suit, must somehow reflect the merits of the claim. A favorable termina-tion may occur where the physician wins at trial, wins summary judgment, gains a dismissal in his or her favor on the merits, or where the plaintiff drops the suit because there is no case. A favorable termination cannot occur where the physician loses at trial, settles out of court, or gains a dismissal on technical grounds, since none of these is reflective of the merits of the claim. The fifth element, injury to the physician, requires that the physician suffer some type of definable injury as a result of the suit. Some jurisdic-tions require a “special injury” to the physician beyond the injuries normally sustained in any litigation. Injuries that do not qualify as “special” include defamation, mental suffering, loss of income, cost of defending the suit, or increased malpractice premiums or cancellation of the malpractice policy. One court found that a “special injury” occurred when the physician’s rep-utation was “assailed.” All in all, special injuries are very difficult to prove.
With respect to the physicians in the above case, Dr. Soused will not be able to win his claim for malicious prosecution. Although the lawsuit was filed against him with malice and there was clearly no probable cause that he in any way contributed to Mrs. Yoo’s infection with hepatitis C, he loses because he settled. Settlement is not a favorable termination in the physi-cian’s favor, and so fails to prove all of the elements of the claim.
With respect to Dr. Divine, his suit will not prevail and will likely be dis-missed before going to trial. Since his suit is still pending, there has not been a favorable termination in his favor. If he wins at trial he may be able to refile his claim. Even then, he will have a difficult time proving there was a lack of probable cause. As the surgeon, he had a duty to explain the risks and benefits of the procedure of the patient and discuss other options. Since it is unclear whether he discussed the possibility of an “off the pump” procedure with the patient, there very well may be probable cause against Dr. Divine.
With respect to Dr. Smarty Pants, he does not have a claim for malicious prosecution either. Although there is no probable cause for the suit, and there is evidence of malice shown from the nature of the suit, there has been no favorable termination of the suit in his favor. Since his suit was dis-missed on technical grounds, this dismissal does not reflect on the merits of the case. Therefore, he loses his malicious prosecution countersuit.
Finally, with respect to Dr. Brilliant, she may have a claim, although she will have difficulty proving “special injuries” if her state requires it. The suit was filed against her with a profound lack of probable cause. In fact, she found a very serious medical problem and took appropriate action to inves-tigate and treat it. The nature of the suit and the behavior of the attorneys imply malice. Further, she had a termination of the underlying malpractice suit in her favor since it was dismissed for cause. In a state that does not require “special injuries,” she appears to have a strong case. However, in a state that does require “special injuries, “ she may have trouble. Her injuries involve the cost of the suit, injury to her reputation, and emotional stress associated with being sued. Since none of these injuries rises beyond those normally sustained by a physician in litigation, she will be unable to prove “special injuries” and would not prevail in these jurisdictions.
Abuse of Process
Abuse of process is a second theory under which a physician may counter-sue for a frivolous lawsuit. It is less likely to be successful and courts are also averse to ruling against patients under this theory. To succeed in proving an abuse of process case, a physician must prove all of the following:
■ The plaintiff or the attorney made an improper use of the legal
process,
■ With an ulterior motive,
■ And the physician as a result was injured.
To prove the first two elements, the physician must show that the legal process was used to obtain “an end unintended by law … not regularly or legally obtainable.” An ulterior motive alone is not enough. There must be a perversion of the legal system for an improper purpose. One example of such a perversion of the legal process is where someone filed a suit solely to coerce a nuisance settlement from the physician. In this case, there was clear evidence that the physician did nothing wrong. The attorney did not investigate the case, took no depositions, and did not hire an expert. In this case, there is evidence of abuse of process. However, if a plaintiff or attor-ney simply files a lawsuit with the hope of forcing a settlement, this in itself is not abuse of process since settlement is a recognized goal of the legal system. Even egregious acts by the attorney, such as calling a physician incompetent, a liar, and a scoundrel at trial, although indecorous, would not rise to the level of abuse of process. Evidence of abuse of process would include a willful act of using the legal process to obtain a collateral advan-tage or coerce another. Some type of overt act is needed to shows that the legal process was misused.
In addition to proving an improper use of process and an ulterior motive, the physician must prove that he or she was injured from the suit. There must be an actual injury to the person or property, and injury to a physi-cian’s good name or reputation would not qualify as an injury. However, special damages are not required in abuse of process claims.
With respect to each of the physicians in the clinical case, Dr. Divine is unlikely to prevail in the abuse of process case. There is no evidence that the suit was filed for an ulterior purpose or that the legal process was mis-used. In fact, the case against Dr. Divine appears to be an appropriate use of the legal process to resolve a legitimate claim.
With respect to Dr. Brilliant and Dr. Pants, their countersuits for abuse of process are stronger than Dr. Divine’s, but they still are unlikely to pre-vail. Although the malpractice suits against both of these physicians appear to be nuisance suits, there is no overt evidence of an ulterior motive and perversion of the legal process. The lawyers in both cases could argue they were simply using the legal process to adjudicate potential claims and that this is an appropriate purpose of the legal system. The mere filing of a law-suit is not in itself an abuse of process. Therefore, both Dr. Pants and Dr. Brilliant are unlikely to prevail on their countersuit.
With respect to Dr. Soused, his claim for abuse of process seems the strongest. Under this theory, favorable termination of the proceedings is
not required. The letter from Larry, Mo, and Curly clearly shows their effort to coerce money from Dr. Soused and to threaten him with public embarrassment. Although settlement is an appropriate goal of the legal system, extortion is not. The attorneys in this case clearly perverted the legal system for an ulterior purpose and Dr. Soused was injured as a result. Consequently, he should prevail on countersuit under this theory.
SURVIVAL STRATEGIES
Practice Good Medicine
This goes without saying, but the best defense against malpractice in gen-eral is practicing sound medicine and taking good care of your patients. Since winning a malicious prosecution case requires an outcome in your favor and a lack of probable cause, sound medical practice is the first part of winning a countersuit.
Keep Accurate and Complete Records
This applies to medical records as well as all records involving any potential litigation. In the medical record, document your thought process, your rec-ommendations to the patient, and the patient’s response to treatment. Document any noncompliance on the patient’s part. Further, keep copies and records of all communications related to any actual or potential litigation. These records may help prove any malice or ulterior purpose down the road.
Plan Early for a Countersuit
Discuss with your attorney early any thoughts you might have in bringing a countersuit. During the process of a lawsuit, several pitfalls may arise that can thwart a successful countersuit. It is important to think about a coun-tersuit early in the process to plan for this.
Know What You Want
As stated earlier, physician countersuits are difficult to win and prosecuting one, especially just after you have been sued, can be emotionally challeng-ing. You need to know if you have the energy to pursue this legal option and what you specifically hope to gain from the process.
Lee BH. “Countersuits by Health Care Providers” In Legal Medicine/American College of Legal Medicine, 7th ed, ed. S. Sandy Sanbar et al. Philadelphia: Mosby, 2007. 61 A.L.R. 5th 307. Contributory negligence or comparative negligence based on
failure of patient to follow instructions as defense in action against physician.
Brennan TA; Sox CM; Burstin HR. Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation. 335 New Eng. J. Med. 1963 (1996).
Rawson J; Wong v. Tabor: The Latest Word in Physician-Attorney Countersuits. 17 Valparaiso Law Rev. 153 (1983).
1. McCammon K, Fighting Fire with Fire: Physician Countersuits. Medical Sentinel 7(3): 88 (2002).
2. 61 Am. Jur. 2d Physicians, Surgeons, etc. 294.
3. Witlin L, Countersuits by Medical Malpractice Defendants against Attorneys. 9 J. Legal Medicine 421 (1988).
4. Dutt v. Kremp, 111 Nev. 567, 894 P. 2d 354 (1995), a case involving malicious prosecution and abuse of process claims. See also Epps v. Vogel, 454 A. 2d 320 (D.C. Ct. App. 1982), because of loss of income, several doctors sued the lawyer who had represented a group; and Wong v. Tabor, 422 N.E. 2d 1279 (Ind. Ct. App. 3d Dist. 1981), involving malicious prosecution.
