Physician countersuits

Question: Which one of the following is false?

A. A physician countersuit is frequently successful when a lawyer has filed – and lost – a frivolous malpractice lawsuit.

B. Countersuits are usually premised on two legal theories: malicious prosecution or abuse of process.

C. The key elements of malicious prosecution include lack of probable cause and presence of malice.

D. Abuse of process speaks to using the legal system with an ulterior motive and for an illegitimate purpose.

E. Rule 11 is a federal rule that imposes sanctions in which the attorney has failed to conduct a "reasonable inquiry" before filing a lawsuit.

Answer: A. Many doctors believe that eager attorneys readily file malpractice lawsuits in the hope of intimidating the defendant doctor into settling. Some in the medical profession have therefore considered countersuits against the attorney, and sometimes the patient as well, when they perceive the original lawsuit to be frivolous.

However, the countersuit process is tedious, expensive, and usually unsuccessful. Courts are generally hostile to such lawsuits, because public policy encourages a litigant’s unfettered resort to the law.

The usual legal theory that a countersuit is premised upon is malicious prosecution, which has to satisfy the following elements: 1) original lawsuit terminated in favor of the doctor, that is, no malpractice liability found; 2) lack of probable cause; 3) malice; and 4) special injuries.

The issue of probable cause is the major stumbling block to a successful countersuit. In Williams v. Coombs (224 Cal. Rptr. 865 [Cal. App. 1986]), a doctor was sued for wrongful death after his patient hanged herself following hospital admission for suicidal gestures. She was admitted to a private room instead of a special locked room. At trial, the jury found in favor of the physician. Thereafter, the physician sued the plaintiff attorney for malicious prosecution and intentional infliction of emotional distress.

The court agreed that the plaintiff attorney lacked probable cause in filing the malpractice claim in the first place. It advanced a two-point test: First, the attorney must entertain a subjective belief that the claim merits litigation; and second, that belief must satisfy an objective standard, because the attorney must not prosecute a claim that a reasonable lawyer would not consider tenable.

Finding that the attorney failed to meet the second prong of the test, the court stated that, although probable cause is not the same as making a legal case (winning), an attorney must nonetheless refrain from an unsound and untenable claim. The attorney had relied exclusively on the allegations of his client, and he had not done much in the way of background research, found no cases on point, and sought advice from only one physician during a social encounter.

The court reasoned that a "litigant cannot be permitted to file suit based merely on a wing and a prayer, and then be retroactively justified by some serendipitous discovery so as not to be liable for malicious prosecution." The claim for intentional infliction of emotional distress was dismissed, because otherwise defamatory statements made in a judicial proceeding constituted a privileged publication.

In Gentzler v. Atlee (443 Pa. Super. 128 [1995]), a cardiologist recommended that the patient go to a certain hospital for tests, and in a subsequent CABG procedure, the patient received contaminated blood products. Although the cardiologist did not recommend or participate in the surgery, he was a named codefendant in the subsequent lawsuit. After the trial court dismissed the action, he filed a countersuit against the attorney under Pennsylvania’s statutory section for the wrongful use of civil proceedings.

The court noted that the standard for probable cause is whether an attorney reasonably believes that a claim may be valid under existing or developing law, and that this determination is a matter of law, that is, up to the judge rather than a jury to decide.

In ruling for the doctor, the court reasoned that under the facts of this case, there was no probable cause, as there was no informed consent issue, and the cardiologist did not himself order the administration of the blood products.

However, most malicious prosecution actions fail.

In Wong v. Tabor (422 N.E. 2d 1279 [Ind. 1981]), the Indiana Court of Appeals held that the probable cause standard is an objective one, but the relevant question was "whether the claim merits litigation ... on the basis of the facts known to the attorney when the suit was commenced." The standard apparently did not require the attorney to investigate, but simply to accept the facts as told by the client.

In Dutt v. Kremp (111 Nev. 567 [1995]), the plaintiff attorney promptly withdrew his lawsuit after receiving an unfavorable report from his own expert witness. A countersuit followed. The court held that as regards the malicious prosecution action, the attorney had probable cause to file the malpractice action. The court concluded that, under the facts, a reasonable attorney would have believed that the malpractice action was tenable. The patient’s condition had initially deteriorated under the care of the physician, and improved only after other doctors became involved in the case. The medical records corroborated the patient’s story. The court stated that there was no absolute requirement to obtain an expert opinion before filing the lawsuit.

It is even harder to meet the malice requirement. Definitions are elusive, and allegations of willful and wanton misconduct are not always synonymous with malice, particularly where no improper motive is suggested.

In the view of one court, the action of an attorney who signed and amended a complaint without first reading the complaint did not constitute malice sufficient to support a malicious prosecution action. A contingent-fee arrangement, even of large magnitude, cannot be used as evidence of improper motive or malice.

Neither is attorney negligence or incompetence, which one court gratuitously editorialized: "If that constitutes malice, the courtrooms are full of malicious attorneys." In that case, a surgeon was alleged to have damaged a child’s testicle – although at trial, all expert witnesses, including two of the plaintiff’s own experts, testified that there was no evidence of damage. Apparently, the attorney had not spoken to his own witnesses.

Note that for a malicious prosecution lawsuit to prevail, the plaintiff doctor may have to satisfy the "special injury" requirement in some jurisdictions. It is not always clear what this entails, but the injury has to be beyond "anxiety, loss of time, attorney’s fees and the necessity to defend one’s reputation" (Stopka v. Lesser, 82 Ill. App.3d 323 [1st Dist. 1980]). In one case, the court ruled that a plaintiff in a malicious prosecution action may recover for "humiliation, mortification and loss of reputation" (Raine v. Drasin, 621 S.W.2d 895 [Ky. 1981]). Jurisdictions such as Illinois do not require the special injury element.

Another legal theory for a malpractice countersuit is abuse of process. Here, too, the doctor’s victory is rare. However, in Bull v. McCuskey (96 Nev. 706 [1980]), a physician successfully used this approach. He asserted that the attorney had filed a malpractice suit with the motive of coercing a nuisance settlement (attorney offered to settle for $750). The case involved an elderly woman who sustained fractures following an auto accident, then went on to develop bedsores after refusing to follow staff instructions. The attorney did not examine the medical records, conferred with no physician, retained no expert, and took no depositions.

At trial, which was won by the physician, the attorney called the physician incompetent, a liar, and a scoundrel. In the abuse of process action that followed, the physician won a jury verdict of $35,000 in compensatory damages and $50,000 in punitive damages, which was upheld on appeal.

Other legal theories, mostly unsuccessfully pleaded, include infliction of emotional distress, negligence, defamation, invasion of privacy, and the tort of outrage.

However, courts have erected various rules to prevent the filing of frivolous suits. The best known, Federal Rule 11 (and its state counterparts), requires the lawsuit to be filed only after reasonable inquiry, be well grounded in fact, and not be interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

An example of a Rule 11 sanction involved a lawsuit filed by two chiropractors in Colorado that alleged antitrust violation by a medical facility that denied them hospital admitting privileges. The facts revealed that the chiropractors had in fact never applied for those privileges. The judge imposed sanctions of $38,500 (Colorado Chiropractic Council v. Porter Memorial Hospital, 650 F. Supp. 231 [Co. 1986]).

In summary, one cannot readily recommend filing a physician countersuit, unless it is to make a point. Even if the doctor wins, which is rare, the proceedings will be stressful, the costs are not borne by the malpractice carrier, and any recovered damages are likely to be small.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Which one of the following is false?

A. A physician countersuit is frequently successful when a lawyer has filed – and lost – a frivolous malpractice lawsuit.

B. Countersuits are usually premised on two legal theories: malicious prosecution or abuse of process.

C. The key elements of malicious prosecution include lack of probable cause and presence of malice.

D. Abuse of process speaks to using the legal system with an ulterior motive and for an illegitimate purpose.

E. Rule 11 is a federal rule that imposes sanctions in which the attorney has failed to conduct a "reasonable inquiry" before filing a lawsuit.

Answer: A. Many doctors believe that eager attorneys readily file malpractice lawsuits in the hope of intimidating the defendant doctor into settling. Some in the medical profession have therefore considered countersuits against the attorney, and sometimes the patient as well, when they perceive the original lawsuit to be frivolous.

However, the countersuit process is tedious, expensive, and usually unsuccessful. Courts are generally hostile to such lawsuits, because public policy encourages a litigant’s unfettered resort to the law.

The usual legal theory that a countersuit is premised upon is malicious prosecution, which has to satisfy the following elements: 1) original lawsuit terminated in favor of the doctor, that is, no malpractice liability found; 2) lack of probable cause; 3) malice; and 4) special injuries.

The issue of probable cause is the major stumbling block to a successful countersuit. In Williams v. Coombs (224 Cal. Rptr. 865 [Cal. App. 1986]), a doctor was sued for wrongful death after his patient hanged herself following hospital admission for suicidal gestures. She was admitted to a private room instead of a special locked room. At trial, the jury found in favor of the physician. Thereafter, the physician sued the plaintiff attorney for malicious prosecution and intentional infliction of emotional distress.

The court agreed that the plaintiff attorney lacked probable cause in filing the malpractice claim in the first place. It advanced a two-point test: First, the attorney must entertain a subjective belief that the claim merits litigation; and second, that belief must satisfy an objective standard, because the attorney must not prosecute a claim that a reasonable lawyer would not consider tenable.

Finding that the attorney failed to meet the second prong of the test, the court stated that, although probable cause is not the same as making a legal case (winning), an attorney must nonetheless refrain from an unsound and untenable claim. The attorney had relied exclusively on the allegations of his client, and he had not done much in the way of background research, found no cases on point, and sought advice from only one physician during a social encounter.

The court reasoned that a "litigant cannot be permitted to file suit based merely on a wing and a prayer, and then be retroactively justified by some serendipitous discovery so as not to be liable for malicious prosecution." The claim for intentional infliction of emotional distress was dismissed, because otherwise defamatory statements made in a judicial proceeding constituted a privileged publication.

In Gentzler v. Atlee (443 Pa. Super. 128 [1995]), a cardiologist recommended that the patient go to a certain hospital for tests, and in a subsequent CABG procedure, the patient received contaminated blood products. Although the cardiologist did not recommend or participate in the surgery, he was a named codefendant in the subsequent lawsuit. After the trial court dismissed the action, he filed a countersuit against the attorney under Pennsylvania’s statutory section for the wrongful use of civil proceedings.

The court noted that the standard for probable cause is whether an attorney reasonably believes that a claim may be valid under existing or developing law, and that this determination is a matter of law, that is, up to the judge rather than a jury to decide.

In ruling for the doctor, the court reasoned that under the facts of this case, there was no probable cause, as there was no informed consent issue, and the cardiologist did not himself order the administration of the blood products.

However, most malicious prosecution actions fail.

In Wong v. Tabor (422 N.E. 2d 1279 [Ind. 1981]), the Indiana Court of Appeals held that the probable cause standard is an objective one, but the relevant question was "whether the claim merits litigation ... on the basis of the facts known to the attorney when the suit was commenced." The standard apparently did not require the attorney to investigate, but simply to accept the facts as told by the client.

In Dutt v. Kremp (111 Nev. 567 [1995]), the plaintiff attorney promptly withdrew his lawsuit after receiving an unfavorable report from his own expert witness. A countersuit followed. The court held that as regards the malicious prosecution action, the attorney had probable cause to file the malpractice action. The court concluded that, under the facts, a reasonable attorney would have believed that the malpractice action was tenable. The patient’s condition had initially deteriorated under the care of the physician, and improved only after other doctors became involved in the case. The medical records corroborated the patient’s story. The court stated that there was no absolute requirement to obtain an expert opinion before filing the lawsuit.

It is even harder to meet the malice requirement. Definitions are elusive, and allegations of willful and wanton misconduct are not always synonymous with malice, particularly where no improper motive is suggested.

In the view of one court, the action of an attorney who signed and amended a complaint without first reading the complaint did not constitute malice sufficient to support a malicious prosecution action. A contingent-fee arrangement, even of large magnitude, cannot be used as evidence of improper motive or malice.

Neither is attorney negligence or incompetence, which one court gratuitously editorialized: "If that constitutes malice, the courtrooms are full of malicious attorneys." In that case, a surgeon was alleged to have damaged a child’s testicle – although at trial, all expert witnesses, including two of the plaintiff’s own experts, testified that there was no evidence of damage. Apparently, the attorney had not spoken to his own witnesses.

Note that for a malicious prosecution lawsuit to prevail, the plaintiff doctor may have to satisfy the "special injury" requirement in some jurisdictions. It is not always clear what this entails, but the injury has to be beyond "anxiety, loss of time, attorney’s fees and the necessity to defend one’s reputation" (Stopka v. Lesser, 82 Ill. App.3d 323 [1st Dist. 1980]). In one case, the court ruled that a plaintiff in a malicious prosecution action may recover for "humiliation, mortification and loss of reputation" (Raine v. Drasin, 621 S.W.2d 895 [Ky. 1981]). Jurisdictions such as Illinois do not require the special injury element.

Another legal theory for a malpractice countersuit is abuse of process. Here, too, the doctor’s victory is rare. However, in Bull v. McCuskey (96 Nev. 706 [1980]), a physician successfully used this approach. He asserted that the attorney had filed a malpractice suit with the motive of coercing a nuisance settlement (attorney offered to settle for $750). The case involved an elderly woman who sustained fractures following an auto accident, then went on to develop bedsores after refusing to follow staff instructions. The attorney did not examine the medical records, conferred with no physician, retained no expert, and took no depositions.

At trial, which was won by the physician, the attorney called the physician incompetent, a liar, and a scoundrel. In the abuse of process action that followed, the physician won a jury verdict of $35,000 in compensatory damages and $50,000 in punitive damages, which was upheld on appeal.

Other legal theories, mostly unsuccessfully pleaded, include infliction of emotional distress, negligence, defamation, invasion of privacy, and the tort of outrage.

However, courts have erected various rules to prevent the filing of frivolous suits. The best known, Federal Rule 11 (and its state counterparts), requires the lawsuit to be filed only after reasonable inquiry, be well grounded in fact, and not be interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

An example of a Rule 11 sanction involved a lawsuit filed by two chiropractors in Colorado that alleged antitrust violation by a medical facility that denied them hospital admitting privileges. The facts revealed that the chiropractors had in fact never applied for those privileges. The judge imposed sanctions of $38,500 (Colorado Chiropractic Council v. Porter Memorial Hospital, 650 F. Supp. 231 [Co. 1986]).

In summary, one cannot readily recommend filing a physician countersuit, unless it is to make a point. Even if the doctor wins, which is rare, the proceedings will be stressful, the costs are not borne by the malpractice carrier, and any recovered damages are likely to be small.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].

Question: Which one of the following is false?

A. A physician countersuit is frequently successful when a lawyer has filed – and lost – a frivolous malpractice lawsuit.

B. Countersuits are usually premised on two legal theories: malicious prosecution or abuse of process.

C. The key elements of malicious prosecution include lack of probable cause and presence of malice.

D. Abuse of process speaks to using the legal system with an ulterior motive and for an illegitimate purpose.

E. Rule 11 is a federal rule that imposes sanctions in which the attorney has failed to conduct a "reasonable inquiry" before filing a lawsuit.

Answer: A. Many doctors believe that eager attorneys readily file malpractice lawsuits in the hope of intimidating the defendant doctor into settling. Some in the medical profession have therefore considered countersuits against the attorney, and sometimes the patient as well, when they perceive the original lawsuit to be frivolous.

However, the countersuit process is tedious, expensive, and usually unsuccessful. Courts are generally hostile to such lawsuits, because public policy encourages a litigant’s unfettered resort to the law.

The usual legal theory that a countersuit is premised upon is malicious prosecution, which has to satisfy the following elements: 1) original lawsuit terminated in favor of the doctor, that is, no malpractice liability found; 2) lack of probable cause; 3) malice; and 4) special injuries.

The issue of probable cause is the major stumbling block to a successful countersuit. In Williams v. Coombs (224 Cal. Rptr. 865 [Cal. App. 1986]), a doctor was sued for wrongful death after his patient hanged herself following hospital admission for suicidal gestures. She was admitted to a private room instead of a special locked room. At trial, the jury found in favor of the physician. Thereafter, the physician sued the plaintiff attorney for malicious prosecution and intentional infliction of emotional distress.

The court agreed that the plaintiff attorney lacked probable cause in filing the malpractice claim in the first place. It advanced a two-point test: First, the attorney must entertain a subjective belief that the claim merits litigation; and second, that belief must satisfy an objective standard, because the attorney must not prosecute a claim that a reasonable lawyer would not consider tenable.

Finding that the attorney failed to meet the second prong of the test, the court stated that, although probable cause is not the same as making a legal case (winning), an attorney must nonetheless refrain from an unsound and untenable claim. The attorney had relied exclusively on the allegations of his client, and he had not done much in the way of background research, found no cases on point, and sought advice from only one physician during a social encounter.

The court reasoned that a "litigant cannot be permitted to file suit based merely on a wing and a prayer, and then be retroactively justified by some serendipitous discovery so as not to be liable for malicious prosecution." The claim for intentional infliction of emotional distress was dismissed, because otherwise defamatory statements made in a judicial proceeding constituted a privileged publication.

In Gentzler v. Atlee (443 Pa. Super. 128 [1995]), a cardiologist recommended that the patient go to a certain hospital for tests, and in a subsequent CABG procedure, the patient received contaminated blood products. Although the cardiologist did not recommend or participate in the surgery, he was a named codefendant in the subsequent lawsuit. After the trial court dismissed the action, he filed a countersuit against the attorney under Pennsylvania’s statutory section for the wrongful use of civil proceedings.

The court noted that the standard for probable cause is whether an attorney reasonably believes that a claim may be valid under existing or developing law, and that this determination is a matter of law, that is, up to the judge rather than a jury to decide.

In ruling for the doctor, the court reasoned that under the facts of this case, there was no probable cause, as there was no informed consent issue, and the cardiologist did not himself order the administration of the blood products.

However, most malicious prosecution actions fail.

In Wong v. Tabor (422 N.E. 2d 1279 [Ind. 1981]), the Indiana Court of Appeals held that the probable cause standard is an objective one, but the relevant question was "whether the claim merits litigation ... on the basis of the facts known to the attorney when the suit was commenced." The standard apparently did not require the attorney to investigate, but simply to accept the facts as told by the client.

In Dutt v. Kremp (111 Nev. 567 [1995]), the plaintiff attorney promptly withdrew his lawsuit after receiving an unfavorable report from his own expert witness. A countersuit followed. The court held that as regards the malicious prosecution action, the attorney had probable cause to file the malpractice action. The court concluded that, under the facts, a reasonable attorney would have believed that the malpractice action was tenable. The patient’s condition had initially deteriorated under the care of the physician, and improved only after other doctors became involved in the case. The medical records corroborated the patient’s story. The court stated that there was no absolute requirement to obtain an expert opinion before filing the lawsuit.

It is even harder to meet the malice requirement. Definitions are elusive, and allegations of willful and wanton misconduct are not always synonymous with malice, particularly where no improper motive is suggested.

In the view of one court, the action of an attorney who signed and amended a complaint without first reading the complaint did not constitute malice sufficient to support a malicious prosecution action. A contingent-fee arrangement, even of large magnitude, cannot be used as evidence of improper motive or malice.

Neither is attorney negligence or incompetence, which one court gratuitously editorialized: "If that constitutes malice, the courtrooms are full of malicious attorneys." In that case, a surgeon was alleged to have damaged a child’s testicle – although at trial, all expert witnesses, including two of the plaintiff’s own experts, testified that there was no evidence of damage. Apparently, the attorney had not spoken to his own witnesses.

Note that for a malicious prosecution lawsuit to prevail, the plaintiff doctor may have to satisfy the "special injury" requirement in some jurisdictions. It is not always clear what this entails, but the injury has to be beyond "anxiety, loss of time, attorney’s fees and the necessity to defend one’s reputation" (Stopka v. Lesser, 82 Ill. App.3d 323 [1st Dist. 1980]). In one case, the court ruled that a plaintiff in a malicious prosecution action may recover for "humiliation, mortification and loss of reputation" (Raine v. Drasin, 621 S.W.2d 895 [Ky. 1981]). Jurisdictions such as Illinois do not require the special injury element.

Another legal theory for a malpractice countersuit is abuse of process. Here, too, the doctor’s victory is rare. However, in Bull v. McCuskey (96 Nev. 706 [1980]), a physician successfully used this approach. He asserted that the attorney had filed a malpractice suit with the motive of coercing a nuisance settlement (attorney offered to settle for $750). The case involved an elderly woman who sustained fractures following an auto accident, then went on to develop bedsores after refusing to follow staff instructions. The attorney did not examine the medical records, conferred with no physician, retained no expert, and took no depositions.

At trial, which was won by the physician, the attorney called the physician incompetent, a liar, and a scoundrel. In the abuse of process action that followed, the physician won a jury verdict of $35,000 in compensatory damages and $50,000 in punitive damages, which was upheld on appeal.

Other legal theories, mostly unsuccessfully pleaded, include infliction of emotional distress, negligence, defamation, invasion of privacy, and the tort of outrage.

However, courts have erected various rules to prevent the filing of frivolous suits. The best known, Federal Rule 11 (and its state counterparts), requires the lawsuit to be filed only after reasonable inquiry, be well grounded in fact, and not be interposed for any improper purpose, such as to harass or cause unnecessary delay or needless increase in the cost of litigation.

An example of a Rule 11 sanction involved a lawsuit filed by two chiropractors in Colorado that alleged antitrust violation by a medical facility that denied them hospital admitting privileges. The facts revealed that the chiropractors had in fact never applied for those privileges. The judge imposed sanctions of $38,500 (Colorado Chiropractic Council v. Porter Memorial Hospital, 650 F. Supp. 231 [Co. 1986]).

In summary, one cannot readily recommend filing a physician countersuit, unless it is to make a point. Even if the doctor wins, which is rare, the proceedings will be stressful, the costs are not borne by the malpractice carrier, and any recovered damages are likely to be small.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii, Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, "Medical Malpractice: Understanding the Law, Managing the Risk" (2006). For additional information, readers may contact the author at [email protected].