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Emergency Medicine News:
doi: 10.1097/01.EEM.0000446059.27113.d0
At Your Defense

At Your Defense: Should You Sue the Lawyer Who Sued You?

Reyes, Carlo MD, JD

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Dr. Reyesis the vice chief of staff and the assistant medical director of emergency medicine at Los Robles Hospital and Medical Center in Thousand Oaks, CA. He is also a clinical professor of pediatrics and emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO ofhealthelaw.com, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.

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People ask me, “Why law school?” I had been practicing emergency medicine and pediatrics for several years when I decided to pursue a legal degree. We were financially comfortable (medical school loans notwithstanding), but my wife and I had a burning desire to do something about the frivolous medical malpractice lawsuits.

So we crammed for the LSAT over a weekend and applied to law school. We made family and financial sacrifices, and we cut back our commitments in medicine to complete law school in four years. It made sense to us at the time: we wanted to be MD-JDs so we could sue plaintiff lawyers who filed baseless malpractice claims.

My desire to combat frivolous lawsuits remains, but credible legal authorities have tempered my pre-law school optimism about physician countersuits as a deterrent. The list of possible legal theories to support a physician countersuit claim include abuse of process, malicious prosecution, negligence, defamation, intentional infliction of emotional distress, invasion of privacy, and tort. Unfortunately, malicious prosecution and abuse of process are the only two legal theories that have had some measurable success in physician countersuit claims.

Malicious prosecution, however, is a high hurdle to clear. For a plaintiff-physician to prevail in a countersuit based on malicious prosecution filed against the attorney or prior patient filing the malpractice action, the physician must prove that:

  • The defendant-attorney instituted or caused to be instituted a prior judicial proceeding against the physician.
  • The proceeding filed by the attorney was without probable cause. The judge, not the jury, determines probable cause if the issue is whether the attorney knew facts at filing that would reasonable support a malpractice action.
  • The attorney acted maliciously in instituting the proceeding.
  • The proceeding terminated in the physician's favor. A proceeding ending in settlement precludes a subsequent malicious prosecution claim because settlements favor the plaintiff. (Wong v. Tabor, 422 N.E.2d, 1279, 1288.)
  • The physician suffered damages, such as attorney fees and court costs incurred by the litigation.

Some states require proof of special damages, not merely those that can be attributed to litigation, such as seizure of property and arrest. An attorney has probable cause to file a malpractice action against a physician if a reasonable attorney familiar with medical malpractice would consider the claim worthy of litigation based on the facts of the case known by the attorney at the time the action was filed. This reasonableness standard sets a low threshold for attorneys to establish probable cause when pursuing litigation against physicians.

Attorney Glenn Tabor filed suit against Dr. Samuel Wong (Wong v. Tabor) for referring a patient to the hospital for neurosurgical evaluation of persistent headache. The neurosurgeon recommended anterior cervical fusion, which rendered the patient quadriplegic. Mr. Tabor filed a medical negligence claim against the neurosurgeon and Dr. Wong despite lack of substantial evidence that Dr. Wong was involved in the surgery. The neurosurgeon settled, but Mr. Tabor refused to dismiss Dr. Wong from the case. It took 18 months for Dr. Wong's attorney to obtain summary judgment and win the case.

Dr. Wong filed for malicious prosecution against Mr. Tabor, and the court ruled in Mr. Tabor's favor, reasoning that he was aware of enough facts to support probable cause at the time of filing. The court also refused to characterize Mr. Tabor's wrongful continuation as malicious, and referred to the court rules that sanction improper attorney behavior as the more appropriate legal remedy.

The court in Wong failed to consider the lack of redress a physician has in seeking damages for malicious prosecution. The court found that Dr. Wong suffered damages (increase in malpractice premiums, attorney fees, and court costs), but it refused to hold the attorney accountable for those damages. This court ruling represents a typical barrier that courts impose against physician remedy. Courts appeal to public policy justifications as well, asserting that a ruling favoring a physician in a countersuit claim would have a chilling effect on the legal system, and it would threaten free access of patients to the courts. Curiously, this court failed to consider how its ruling profoundly impairs physician access to courts for malicious prosecution.

Countersuits actually do work sometimes. Attorney William Atlee filed a malpractice action against Dr. Richard Gentzler, who had referred a patient to the hospital for tests that ultimately led to coronary artery bypass graft surgery. (Gentzler v. Atlee [1995, Pa Super Ct] 660 A2d 1378.) The patient contracted HIV from blood transfusions during the surgery. The pleading asserted that Dr. Gentzler was negligent because he did not inform the patient of the risk of blood transfusion. The malpractice claim was dismissed, and Dr. Gentzler subsequently filed a malicious prosecution claim against the attorney. The court held that the attorney lacked probable cause to file a medical negligence claim against Dr. Gentzler because it was evident that the physician did not recommend, attend, or perform the surgery.

The similarities between Wong and Gentzler make it difficult to explain their conflicting verdicts, but the courts differed in their analysis of the physicians' involvement and contribution to the negligence. Factors that may predict success of a physician countersuit include the level of physician involvement with the relevant facts of the case, whether a reasonable investigation was done to support probable cause for the attorney to file an action against the physician (percipient and expert witness deposition), and whether the attorney acted maliciously against the physician.

Various organizations support the idea of physician countersuit, despite its limited applicability. Used adroitly in litigation, the threat of countersuit could put a plaintiff attorney on notice of the merits of the case, leading to dismissal. Other measures available to fight frivolous suits, such as combating improper expert testimony (see FastLinks for related article), supporting legislative efforts for tort reform, and maintaining caps on noneconomic damages, may ultimately prove more effective in minimizing frivolous malpractice suits.

Click and Connect!Access the links in EMN by reading this issue on our websiteor in our iPad app, both available onwww.EM-News.com.

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FastLinks

  • Read Dr. Reyes' past article, “Repair the Medicine-Patient Relationship to Decrease Malpractice Risk,” discussing the impact of subjecting expert testimony to professional scrutiny at http://bit.ly/1hvr9SI.
  • Read Dr. Reyes' past columns at http://bit.ly/ReyesAtYourDefense.
  • Comments about this article? Write to EMN at emn@lww.com.

Wolters Kluwer Health | Lippincott Williams & Wilkins

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