|Year : 2016 | Volume
| Issue : 3 | Page : 34-44
Republication: History of physicians fighting frivolous lawsuits: An overview
Anthony Dippolito1, Benjamin M Braslow2, Gary Lombardo2, Kevin M Hoddinott3, Gary Nace4, Stanislaw P Stawicki5
1 Department of Surgery, St. Luke's University Health Network, Bethlehem; OPUS 12 Foundation, King of Prussia, Philadelphia, PA, USA
2 OPUS 12 Foundation, King of Prussia; Department of Surgery, Division of Traumatology and Surgical Critical Care, University of Pennsylvania School of Medicine, Philadelphia, PA, USA
3 Department of Surgery, St. Luke's University Health Network, Bethlehem, PA, USA
4 Temple University School of Medicine, Philadelphia, PA, USA
5 OPUS 12 Foundation, King of Prussia, Philadelphia, PA, USA
|Date of Submission||09-Apr-2016|
|Date of Acceptance||15-Apr-2016|
|Date of Web Publication||19-Aug-2016|
Stanislaw P Stawicki
Department of Research and Innovation, St. Luke's University Health Network, Bethlehem, Pennsylvania 18015
Source of Support: None, Conflict of Interest: None
Legal and medical professions are intertwined in an intimate and complex relationship. Medical malpractice arguably constitutes the biggest point of contention between the two professions. While a significant proportion of medical malpractice complaints is not frivolous and is based on appropriate research and screening criteria, most of these complaints are ultimately settled or taken to trial, with a fairly good chance that the outcome will be favorable or at least satisfactory to the involved physician. At times, the legal system fails to “filter out” frivolous cases. Such cases can and at times, do end up in court. Although majority of them are ultimately decided in favor of the defending physician, the emotional anguish and the potential damage to the physician's reputation can be significant. In addition, the spiraling costs of malpractice insurance and the fear of further malpractice insurance rate increases following a legal complaint cause many doctors to engage in costly and sometimes dangerous practice of defensive medicine. Due to the overall magnitude of the malpractice lawsuit misuse and the devastating consequences of such misuse, frustrated physicians have resorted to initiating countersuits in response to abusive and frivolous lawsuits. This review presents cases where physicians who were unfairly sued filed successful countersuits against the plaintiff's attorneys. A review of relevant medical and legal literature is also included.
The following core competencies are addressed in this article: Interpersonal skills and communication, Practice based learning and improvement, Professionalism.
Republished with permission from: Dippolito A, Braslow B, Lombardo G, Hoddinott KM, Nace G, Stawicki SP. How David beat Goliath: History of physicians fighting frivolous lawsuits. OPUS 12 Scientist 2008;2(1):1-8.
Keywords: Countersuits, legal medicine, malpractice crisis, medical malpractice, tort reform
|How to cite this article:|
Dippolito A, Braslow BM, Lombardo G, Hoddinott KM, Nace G, Stawicki SP. Republication: History of physicians fighting frivolous lawsuits: An overview. Int J Acad Med 2016;2, Suppl S1:34-44
|How to cite this URL:|
Dippolito A, Braslow BM, Lombardo G, Hoddinott KM, Nace G, Stawicki SP. Republication: History of physicians fighting frivolous lawsuits: An overview. Int J Acad Med [serial online] 2016 [cited 2022 Dec 10];2, Suppl S1:34-44. Available from: https://www.ijam-web.org/text.asp?2016/2/3/34/188734
| Introduction|| |
Legal and medical professions are intertwined in an intimate and complex relationship. Medical malpractice arguably constitutes the biggest point of contention between the two professions. While a significant proportion of medical malpractice complaints is not frivolous and is based on appropriate research and screening criteria, most of these complaints are ultimately settled or taken to trial, with a fairly good chance that the outcome will be favorable or at least satisfactory to the involved physician.,, At times, the legal system fails to “filter out” frivolous cases.,,, Such cases can and at times, do end up in court. Although majority of them are ultimately decided in favor of the defending physician, the emotional anguish and the potential damage to the physician's reputation can be significant.,
While the exact percentage of frivolous medical malpractice claims is not known, it is generally agreed that a significant overall percentage of lawsuits filed are baseless. The greatest challenge lies in the difficulty in determining what constitutes a frivolous medical malpractice claim., One indirect measure of the frequency of baseless claims may be the fact that only 25–50% of all claims result in payment to the plaintiff. Moreover, some of the ultimately successful cases may indeed be frivolous, but they are settled by insurance companies because of the hassle factor and the perceived costs of continuing without settlement.
Following a period of relative passiveness among physicians, during which most lived in trepidation of a malpractice action being filed against them, a new era of physician activism emerged. This activism, in addition to supporting active political and tort reform, has taken the form of countersuits, based most commonly upon malicious prosecution either as a single cause of action or in conjunction with abuse of process or defamation suits.,
We present a collected literature review of cases in which physicians filed successful countersuits against the plaintiff's attorneys. Not only did these cases result in moral vindication of the physician but also frequently provided him or her with a monetary compensation for the mental anguish and damaged reputation associated with frivolous malpractice lawsuits. Although difficult to litigate and even harder to win, properly selected physician countersuits in response to unfounded medical malpractice claims may bring some consolation to those who were unjustly sued. This article analyzes relevant legal theories behind physician countersuits, emphasizing successful actions based on malicious prosecution, and abuse of process.
| Methods|| |
A critical literature review of newspapers, professional journals, and internet-based resources was conducted. Internet resources included medical- and nonmedical-search engines, including MEDLINE, ScientificCommons, and Google™. A collection of legal cases in which physicians were able to successfully litigate the plaintiff's attorneys for bringing forth frivolous lawsuits was assembled. Decisive factors behind each case's success were then analyzed [Table 1]. Review of relevant medical and legal literature is also presented.
|Table 1: Summary of representative cases of physician countersuits following frivolous medical malpractice and related lawsuits|
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| Discussion|| |
Significant changes in the health care system have occurred during the past decade. Unfortunately, these changes led to the disruption of the traditional patient–physician relationship, contributing to growing dissatisfaction, and frustration among both patients and physicians.,,,,, Physician surveys demonstrate increasing frustration associated with the practice of medicine. The reasons behind this phenomenon are multiple and include concerns over spiraling increases in overhead expenses coupled with eroding incomes, the near-constant threat of malpractice claims, and the extensive regulatory oversight and intrusion of third parties into the clinical decision-making process – the hassle factor.
The dramatic growth of medical malpractice litigation in recent decades [Figure 1] has contributed significantly to an overall increase in health care costs in this country. Costs of medical malpractice insurance are soaring, major insurers are refusing to write policies, and physicians are struggling to pay their malpractice insurance premiums. Although lawmakers, physicians, and other responsible citizens have proposed numerous solutions in an effort to curb the crisis, these proposals have generally been ineffective. The current health care system is being redesigned – physicians are now providers and patients are consumers of health care. Moreover, this environment adds fuel to the well-established engine of litigation, by allowing its inherent ambiguities to be exploited.
|Figure 1: Average insurance payment (in thousands of dollars) for closed malpractice claims, 1986–2002. Much like claims payments, legal-defense costs grew by about 8% annually during the same period, from around $8000 per claim to more than $27,000. Source: http://www.cbo.gov/ftpdoc.cfm?index = 4968|
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While <3% of negligent medical errors ever result in a malpractice claim,,, close to 20% of medical malpractice lawsuits are definitely related to adverse events due to negligence. Moreover, the legal costs of simply extricating or dropping one of the named physicians from the lawsuit can be anywhere between $20,000 and $90,000. [Figure 2] demonstrates a map of the United States showing medical malpractice awards per physician across all 50 states. As a result, disillusioned physicians occasionally resort to filing countersuits in response to frivolous medical malpractice actions. Since there is currently no other recourse for unfairly sued physicians, one plausible means of legal recourse is countersuits against lawyers and their clients based on legal theories of recovery for malicious prosecution or abuse of process.
Several factors are thought to be contributory to the current malpractice problem. Numerous recent technological and treatment advances have increased the opportunity for physician error in an environment where negligence is often assumed if an outcome does not live up to expectations. The concurrent erosion of the patient–physician relationship and patient trust in the medical system further exacerbates the magnitude of this problem. Of interest, only about 25–50% of all negligence lawsuits result in a verdict for the plaintiff.
The current medical malpractice and tort law crisis beg the question that few have considered: what about the rights of physicians? The courts state that all persons must have free and unrestricted access to the courts and that “…the importance of free access demands that this access be maintained even though occasionally some innocent person must suffer.“ Therefore, physicians appear to have little, if any, legal recourse., To show an abuse of process, for example, the physician must prove that the plaintiff or attorney made improper or unauthorized use of the legal process that the plaintiff had an ulterior motive in bringing the suit and that the physician was damaged as a result of the action.
The adversarial character of the tort system is counterproductive to establishing a fair and balanced legal environment. The current tort system targets individual physicians and organizations, focusing on punishment, blame, and compensation based on the foundation of negligence in patient care. The economic motivation of insurers to settle claims quickly, combined with the contingent fee system, provides incentives for plaintiffs and their attorneys to pursue frivolous claims or to embellish valid ones. In addition, the fear of overly sympathetic jury verdicts fosters the “culture” of early settlement of cases for their nuisance value and continued litigation costs.
In response, many physicians practice defensive medicine, which may account for as much as 10% of total medical care cost., To provide a perspective, a summary of major drivers of health care premium cost increases is provided in [Figure 3]. In its extreme form, defensive medicine also costs society as a whole, as exemplified by doctors who have stopped practicing medicine altogether as a direct result of their frustration with the current medico-legal environment. Other costs to be considered are those of increasing malpractice insurance premiums (often translated into higher physician and hospital charges) and the lost productivity due to the time and effort devoted to defending legal actions instead of providing much-needed patient care. Moreover, physicians subjected to medical malpractice suits, regardless of the ultimate outcome of the litigation, are more likely to have experienced depression, anger, frustration, suicidal ideation, and excessive use of alcohol than nonlitigated physicians., Sued physicians are more likely to stop seeing certain groups of patients, to practice defensibly, to think about early retirement, and to discourage others from pursuing medicine as a career.
|Figure 3: Breakdown of factors contributory to health care premium cost increases. Source: The Factors Fueling Rising Health care Costs. Washington, DC: PricewaterhouseCoopers; 2002|
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Frivolous lawsuit: Definitions
A frivolous lawsuit may be defined as one in which any reasonable review of medical records shows the lawsuit to have no factual or legal basis. The United States courts usually define frivolous litigation as a legal claim or defense presented even though the party and the party's legal counsel had reason to know that the claim or defense had no merit.
The current medical malpractice and tort law system appear to largely ignore physicians' rights to equal consideration. Because of the very nature of our legal system, as explained in previous paragraphs, physicians appear to have little legal recourse., Some physicians fought for legal justice by bringing forth countersuits against malpractice plaintiffs and their attorneys who have unjustly and frivolously brought suit against them.,, There are several different legal theories of recovery that physicians have attempted to argue in countersuits. These theories include malicious prosecution, abuse of process, negligence, defamation, infliction of emotional distress, invasion of privacy, and prima facie tort. These theories will be described in the paragraphs that follow.
Malicious prosecution is the most frequent legal theory of recovery for physicians in countersuits. To prove malicious prosecution, the plaintiff physician must show the following essential elements: (a) the defendant instituted or caused to be instituted (or continued) a prior judicial proceeding against the plaintiff physician, (b) the prosecution was instituted without a probable cause, (c) the defendant acted maliciously in instituting the action, (d) the prosecution terminated in the physician's favor, and (e) the plaintiff physician was damaged by the action. Moreover, some legal jurisdictions further require that the plaintiff physician proves a special injury (i.e., arrest, seizure of property, or other injury) that is different from the traditional circumstances of defending a lawsuit.,,,,,,,,
A lack of probable cause may arise from an intentional disregard of the facts or from failure to reasonably investigate these facts. However, the courts have previously ruled that probable cause is determined on the basis of the facts known to the attorney at the time the malpractice complaint is filed and that lack of probable cause cannot be based solely upon an attorney's apparent failure to conduct prompt and thorough discovery. In addition, the courts often consider the malpractice plaintiff's use of expert witness testimony as proof of probable cause. Malice, which includes proof of an intentional or willful act that attempts to bring about a wrongful result, can be inferred by proving a lack of probable cause.,,
A prior favorable termination of the malpractice action requires a judgment in favor of the physician or a voluntary dismissal of the case., Furthermore, the courts have not recognized the expense, annoyance, and inconvenience of defending a suit, or the loss of income, increase in malpractice insurance premiums or cancellation of insurance, damage to personal and professional reputation, or mental suffering as damages that satisfy the special injury requirement mentioned above.,,,,,,,,,,
To date, the courts have not held attorneys liable for malicious prosecution except in a few isolated cases [Table 1]. Of interest, even violation of the American Bar Association Rules of Professional Conduct which prohibits a lawyer from using “…means that have no substantial purpose other than to embarrass, delay, or burden a third person…” has not been upheld within the context of a legal action based on the malicious prosecution theory.
Abuse of process
Abuse of process can be defined as the use of legal process for illegal or malicious means. The essential elements for proof of abuse of process are as follows: the patient or attorney made improper and unauthorized use of the legal process, the malpractice plaintiff had an ulterior motive in bringing forth the suit, and the physician must have incurred damage as a result of the abuse of process. However, the courts support the notion that the institution of a baseless civil suit is not sufficient for the reason that the “process” itself does not include a civil complaint and a summons to appear in court.,,,,,,,,,,
Negligence can be defined as failure to exercise the degree of legal service considered reasonable under the circumstances, resulting in an unintended injury to another party. Attempting to prove attorney negligence has not been a successful strategy for physician countersuits because the courts have held that an attorney can be liable for professional negligence only to a client and that an adverse party does not constitute the intended beneficiary. This court interpretation ignores the rule, which prevents a lawyer from asserting a client's position unless there is a nonfrivolous basis for doing so, and the rule stipulating that a lawyer shall withdraw from representation of a client if the representation will result in violation of the rules of professional conduct or other law(s).,
Defamation and libel
Defamation is defined as a false statement that injures someone's reputation and exposes that person to public contempt, hatred, ridicule, or condemnation. If the false statement is published in print or through broadcast media, such as radio or TV, it is called libel. If it is only spoken, it is called slander. The legal theory of defamation has also been largely unsuccessful for physician countersuits due to the inability to overcome the doctrine of judicial privilege. This doctrine provides that statements made in judicial proceedings, including allegations made in the pleadings, will be immune from a defamation suit.,,,,,,,,,,
Infliction of emotional distress
The tort of intentional infliction of emotional distress has four elements. First, the defendant must act intentionally or recklessly. Second, the defendant's conduct must be extreme and outrageous. Third, the conduct must be the cause of severe emotional distress. Infliction of emotional distress is unlikely to ever be argued successfully in a malpractice countersuit because the physician must prove that he/she was damaged by conduct so extreme and so outrageous in character that it goes beyond all possible bounds of decency.,,,
Invasion of privacy
The advancement of an invasion of privacy theory involves the proof of an intrusion upon the plaintiff's solitude or seclusion, public disclosure of private information, or unwanted publicity that places the physician in a false light in the public eye. This theory of recovery has not been successful in physician countersuits, largely due to the judicial privilege rule, much as in most cases of alleged defamation.,
Prima facie tort
Prima facie is Latin for “at first sight” or “on first consideration.” A prima facie case is where the plaintiff presents enough evidence to win outright barring any defenses or additional evidence presented by the defendant. The essential elements of prima facie tort include intent on the part of the original plaintiff to injure the defendant, a lack of justification, and special damages.,,,, In order to recover damages from the defendant using this legal theory, the plaintiff physician must show that (a) the defendant intentionally acted or failed to act, (b) the defendant intended that the act or failure to act would cause harm to the plaintiff or that the defendant knew with certainty that the act or failure to act would cause harm to the plaintiff, (c) the defendant's act or failure to act was a cause of plaintiff's harm, and (d) the defendant's conduct was not justifiable under all the circumstances.,,,, Advancement of this legal theory has been unsuccessful for physician countersuits because the courts have viewed prima facie tort as an attempt to present a defective action of malicious prosecution.
Countersuits: The reality
It is unlikely that any legal theory of recovery other than malicious prosecution will ever prove successful in physician countersuits because the historical pattern of various court decisions has been to repeatedly refer the plaintiff back to this very theory of recovery. However, because the courts have made the threshold for establishing lack of probable cause so high, it becomes very difficult to prove malicious prosecution. In a way, a frivolous lawsuit becomes a “just cause” without subsequent action.
The reality of the current legal environment is that physician countersuits pose little threat to malpractice plaintiffs or their attorneys. At present, the mere existence of the theory of recovery through a malicious prosecution action serves as a mere “window dressing“ – it is designed to convey the false appearance of equal justice under the law. Moreover, a physician who initiates a frivolous countersuit can also be countersued, further exacerbating his or her legal problems.
On the other hand, by winning a countersuit, the physician can achieve two fundamental goals – obtaining monetary compensation as well as moral vindication for being wrongfully sued. The physician can recover compensatory monetary damages for the time and income lost while defending against the frivolous lawsuit. The doctor can also recover for the anguish, frustration, and embarrassment that resulted from unjustly being named a defendant. Further, legal costs of defending against the frivolous lawsuit may be recoverable. Finally, one may be able to seek as damages any malpractice premium increases attributable to the frivolous claim.
The system designed to protect malpractice plaintiffs and their attorneys can produce potentially harmful consequences on both societal and economic levels [Table 2]. Given the multiple adverse effects of the unequal treatment of doctors in our medical malpractice system, it is not unreasonable to call for more definitive legal and legislative action to protect physicians from baseless malpractice suits. The law should be able to provide a remedy for each and every wrong and there should be no tolerance toward any forms of legal harassment., A moderate position which would give physicians at least some protection while not being so broad as to jeopardize the free access to the judicial process may be obtainable under some of the current proposals for tort reform.
The term countersuit is taking on an enchanting status to physicians as if it were a miracle drug to cure the malpractice malady. Despite the fact that insurance industry studies show few nefarious malpractice suits, many physicians are convinced that there would be fewer legal complaints if patients and their attorneys knew they might be back in court as defendants for instituting a nonmeritorious suit.
Eliminating these few spurious suits, which are very difficult to establish at best, would have little impact on the overall problem. Although a few physicians have been successful [Table 2], most countersuits have ultimately gone against the physician.,,,,,,,,,,,,, Additional problems arise when doctor groups attempt to alleviate the physician's financial burden by fostering countersuit funds. The funds may relieve the legal expenses, but in turn are fraught with potentially formidable legal consequences, including accusations of conspiracy to intimidate prospective litigants and appearance of encouraging litigation., Physicians should proceed with deliberate caution in creating such funds and undertaking countersuits. Once the physician and his/her lawyer decide to pursue a countersuit, they have to carefully consider whom to name as defendants. One potential option is to sue the lawyer who filed the original baseless lawsuit. Another option is to name the law firm where the malpractice lawyer works. Other countersuits name the so-called medical expert who lends his or her name to the frivolous allegations. In almost all malpractice lawsuits, an expert witness will “help” establish that the defending physician's care failed to meet the standard of care and contributed to the alleged injury.
Due to the “chilling effect” of countersuits, attorneys are rarely willing to sue other attorneys in these types of legal cases. Moreover, since physician countersuits are rarely prosecuted in court, many attorneys are unfamiliar with the nuances of these cases and may not be able or willing to provide adequate legal representation.
Due to the difficulties of retaining legal representation within the time constraints of the statute of limitations, the only reliable way for countersuits to become more common may be for physicians to initiate them as pro se litigants. Pro se refers to an individual who represents himself or herself, without a lawyer, in a court proceeding.
The right to file a pro se lawsuit is an important right under the constitution. Pro se litigants enrich the law by raising controversial issues which lawyers are reluctant to pursue. Filing a pro se lawsuit is not difficult. The physician can use the plaintiff's complaint from the original malpractice case as a template to craft the countersuit complaint. The physician must be sure to include the necessary elements of the legal action in the complaint. For useful legal advice and assistance, physician pro se litigants should make use of their associations with their malpractice and hospital attorneys. The use of certain references may also be beneficial., Once the lawsuit is actually filed, it is easier to find legal representation, although it is often very expensive., Even though pro se litigant physicians may actually represent themselves adequately while managing to avoid the added financial burden of attorneys' fees, attempting to advance a case as a pro se litigant becomes time-consuming, logistically challenging, and probably unrealistic in most instances. Alternatively, the physician could investigate the possibility of pursuing an abusive litigation counterclaim.
The burden of medical malpractice
Medical malpractice awards per doctor in the United States, during the period from 1999 to 2001 ranged from a low of $1688 in Wisconsin to a high of $10,025 in Pennsylvania [Figure 2]. [Table 2] shows the magnitude of the existing tort liability system and its global impact on the United States economy. The median amounts of annual medical malpractice premiums for various medical and surgical specialties can be seen in [Table 3]. In addition to financial considerations, important emotional, professional, and procedural aspects of the impact of malpractice lawsuits upon individual physicians are presented in [Table 4] and [Table 5]. The reality of the current legal environment is that physicians in the so-called high-risk specialties (neurosurgeons, anesthesiologists, obstetricians, gynecologists, orthopedic surgeons, and general surgeons) are almost guaranteed to be sued during their careers. In fact, the average obstetrician/gynecologist starting out today can expect to be sued at least 3 times in their professional career. One major problem with regards to malpractice insurance costs following any malpractice complaint is the possibility that the doctor's medical malpractice insurance company can impose a surcharge – at times as much as 30–50% of the basic policy premium – and apply such surcharge for up to 5 years following the complaint. [Figure 4] shows data regarding malpractice insurance premium increases for some of the most affected U. S. locales between 2001-2002. Finally, a detailed breakdown of resource allocation associated with each “litigation dollar” is provided in [Figure 5].,
An ounce of prevention
What can physicians do to minimize the headaches of entanglement in the legal system?First, try preventive measures, including effective and detailed documentation, error-prevention strategies, good patient education and rapport, maintenance of adequate physician–patient communication, as well as avoidance of the “flight response” when patient outcome is less than optimal. Other strategies potentially useful in preventing medical malpractice lawsuits have been described in detail elsewhere.,
| Conclusions|| |
Physician countersuits are a manifestation of much larger problem – the medical malpractice crisis faced by all of us. The legal system continues to favor the plaintiffs' attorneys when it comes to the burden of proof and fair and equal process in medical malpractice lawsuits. Although difficult to litigate and even harder to win, properly selected physician countersuits in response to unfounded medical malpractice claims may help bring consolation to those who were unjustly sued. While there are several different legal theories of recovery that physicians have attempted to argue in countersuits, very few such legal actions have been ultimately successful.
Justifications for re-publishing this scholarly content include: (a) The phasing out of the original publication after a formal merger of OPUS 12 Scientist with the International Journal of Academic Medicine and (b) Wider dissemination of the research outcome(s) and the associated scientific knowledge.
Financial support and sponsorship
Conflicts of interest
There are no conflicts of interest.
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[Figure 1], [Figure 2], [Figure 3], [Figure 4], [Figure 5]
[Table 1], [Table 2], [Table 3], [Table 4], [Table 5]