Law & Medicine

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.

Dr. S.Y. Tan

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.

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