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OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
1
How David beat Goliath: History of physicians fighting frivolous lawsuits
A. Dippolito, MD 1,2, B. M. Braslow, MD 2,3, G. Lombardo, MD 2,3, K. M. Hoddinott, MD 1, G. Nace, MD 4, S. P. Stawicki, MD 2
1 Department of Surgery, St Luke’s Hospital and Health Network, Bethlehem, PA, USA
2 OPUS 12 Foundation, King of Prussia, PA, USA
3 Department of Surgery, Division of Traumatology and Surgical Critical Care, University of Pennsylvania School of Medicine, Philadelphia, PA, USA
4 Temple University School of Medicine, Philadelphia, PA, USA
ABSTRACT
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 are
not frivolous and are 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.
Cite as: Dippolito A, Braslow B, Lombardo G, Hoddinott KM, Nace G,
Stawicki SP. OPUS 12 Scientist 2008;2(1): 1-8.
Correspondence to: S. P. Stawicki, MD. OPUS 12 Foundation, 304 Monroe
Blvd, King or Prussia, PA, 19406 USA.
Keywords: Medical malpractice, Countersuits, Tort reform, Review, Legal
medicine, Malpractice crisis.
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
are not frivolous and are 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. 1-3
At times, the legal system fails to ‘filter out’ frivolous cases. 1-4
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. 1-2
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. 3 The greatest
challenge lies in the difficulty in determining what constitutes a
frivolous medical malpractice claim. 4, 5 One indirect measure of
the frequency of baseless claims may be the fact that only 25% to
50% of all claims result in payment to the plaintiff. 6 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. 3
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.
3, 7
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 non-medical search engines, including
Medline8, ScientificCommons 9, and Google™ 10. 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 5). Review of relevant medical
and legal literature is also presented.
DISCUSSION
Significant changes in the health care system have occurred
during the past decade. 6 Unfortunately, these changes led to the
disruption of the traditional patient-physician relationship,
contributing to growing dissatisfaction and frustration among both
patients and physicians. 11-16 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
OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
2
third parties into the clinical decision-making process – the hassle
factor. 15
The dramatic growth of medical malpractice litigation in recent
decades 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. 17 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 healthcare. 6
Moreover, this environment adds fuel to the well-established
engine of litigation, by allowing its inherent ambiguities to be
exploited. 16
Figure 1. Average insurance payment (in thousands of dollars) for closed
malpractice claims, 1986 to 2002. Much like claims payments, legal-defense
costs grew by about 8% annually during the same period, from around $8,000
per claim to more than $27,000. Source:
http://www.cbo.gov/ftpdoc.cfm?index=4968.
While less than 3% of negligent medical errors ever result in a
malpractice claim 4, 18-19, close to 20% of medical malpractice
lawsuits are definitely related to adverse events due to negligence.
19 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. 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. 20 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% to 50% of all negligence
lawsuits result in a verdict for the plaintiff. 6
The current medical malpractice and tort law crisis begs 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". 5 Therefore,
physicians appear to have little, if any, legal recourse. 3, 21 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. 22 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. 6
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. 23
Figure 2. Breakdown of factors contributory to health care premium cost
increases. Source: The Factors Fueling Rising Healthcare Costs. Washington,
DC: PricewaterhouseCoopers; 2002.
In response, many physicians practice defensive medicine, which
may account for as much as 10 percent of total medical care
cost.24-25 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. 26 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. 27 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
non-litigated physicians. 6, 27 Sued physicians are more likely to
stop seeing certain groups of patients, to practice defensibly, to
OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
3
think about early retirement, and to discourage others from
pursuing medicine as a career. 27
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. 49 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. 50
PHYSICIAN COUNTERSUITS
The current medical malpractice and tort law system appears 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. 3, 21
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. 3, 28 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. 6 These theories will be described in the paragraphs that
follow.
Figure 3. Medical malpractice awards per doctor in the United States,
1999-2001 average amounts. Mean awards range from a low of $1,688 in
Wisconsin to a high of $10,025 in Pennsylvania. Source:
http://www.manhattan-institute.org/html/cjr_10.htm#03.
MALICIOUS PROSECUTION
Malicious prosecution is the most frequent legal theory of
recovery for physicians in countersuits. In order 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. 6 Moreover, some legal jurisdictions further require
that the plaintiff physician prove a special injury (i.e., arrest,
seizure of property, or other injury) that is different from the
traditional circumstances of defending a lawsuit. 3, 5, 20-23, 28-30
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. 29 In addition, the
courts often consider the malpractice plaintiff's use of expert
witness testimony as proof of probable cause. 20 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. 5, 28-29
A prior favorable termination of the malpractice action requires a
judgment in favor of the physician or a voluntary dismissal of the
case. 21, 29 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. 3, 5, 20-23, 28-30
To date, the courts have not held attorneys liable for malicious
prosecution except in a few isolated cases (Table 5). 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. 23
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. 3, 5, 20-23, 28-30
NEGLIGENCE
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. 3 This court interpretation ignores the rule, which
prevents a lawyer from asserting a client's position unless there is
a non-frivolous 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). 21, 23
DEFAMATION AND LIBEL
Defamation is defined as a false statement that injures someone's
reputation and exposes that person to public contempt, hatred,
OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
4
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. 3, 5, 20, 29-30
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. 3, 5-6, 29
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. 21, 29
Table 1. Facts about tort liability and its impact on consumers
Overall Impact: The United States Economy
The cost of the U.S. tort system for 2003 was $246 billion, or $845
per citizen or $3,380 for a family of four. This is equivalent to
approximately 2.2% of the U.S. GDP.
U.S. tort costs increased 35.4 percent from 2000 to 2003. It is
estimated that tort costs increase by about 5% to 8% every year.
The Growth of U.S. tort costs have exceeded the Gross Domestic
Product (GDP) by 2-3 percentage points in the past 50 years.
The U.S. tort system is inefficient, returning < 50 cents on the
dollar and < 22 cents for actual economic loss to claimants.
Sources: (1) http://www.atra.org/wrap/files.cgi/7963_howtortreform.html. (2)
http://www.legalreforminthenews.com/speakers/cost_of_abuse/cost_1.html
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. 3, 5, 21, 29-30
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. 3, 5, 21, 29-30
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. 20
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. 20
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. 6 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.
Figure 4. Rise in physicians’ malpractice insurance premiums in selected
states, 2001-2002. Source: http://www.nejmjobs.org/rpt/physician-
malpractice-premiums.aspx.
The system designed to protect malpractice plaintiffs and their
attorneys can produce potentially harmful consequences on both
societal and economic levels (Table 1). 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. 30 The law should be able to provide a
OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
5
remedy for each and every wrong and there should be no tolerance
toward any forms of legal harassment. 20, 31 A moderate position
which would give physicians at lease 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. 21
BRIEF REFLECTION
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 non-meritorious suit.
Table 2. Median annual malpractice premiums by specialty (FY 2000)
Neurosurgery $33,101
Cardiovascular surgery $28,328
Obstetrics/Gynecology $21,446
General surgery $19,860
Orthopedic surgery $17,812
Otorhinolaryngology $10,793
Urology $9,903
Cardiology $8,751
Anesthesiology $8,004
Ophthalmology $6,934
Hematology/Oncology $6,520
Radiology $6,202
Internal medicine $6,144
Gastroenterology $6,138
Family practice $6,125
Source: Tracking turmoil in malpractice insurance. Modern Physician,
August 2002.
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 1), most
countersuits have ultimately gone against the physician. 1-3, 32, 34-43
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. 32-33 Physicians should
proceed with deliberate caution in creating such funds and
undertaking countersuits. 32 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. 34
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. 34
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.
Table 3. Coping with medical malpractice suit – The facts
Overview
More than 95% of physicians react to being sued by experiencing periods
of emotional distress during all or portions of the lengthy litigation
process. This may begin immediately upon receiving the legal complaint
by a sense of outrage, shock, or dread about the personal/financial effects
of the eventual outcome. These reactions are similar to those seen during
any major life event. Feelings of anger, frustration, inner tension, and
insomnia are also frequent.
Symptoms of major depressive disorder (prevalence, 27%-39%),
adjustment disorder (20%-53%), and the onset or exacerbation of a
physical illness (2%-15%) occur, although fewer than 2% acknowledge
drug or alcohol misuse.
Attributes that help clinicians cope with the reality of being sued
Competent practice, good risk-management procedures
Adequate self-knowledge
Balanced personal and professional life
Capacity for intimacy and sharing
Good relationships with patients, patient families, and other healthcare
professionals
Common emotional and coping responses to being sued
Symptoms may develop during any stage when adequate coping fails
The complaint is served: surprise, shock, outrage, anxiety, and/or dread
Consultation with lawyer: depending on the initial assessment of the case,
reactions of anger, denial, concern, reassurance, panic
Lengthy period of denials and intrusions: active attempts to erase
thoughts about the case, followed by automatic reminders and intrusive
thoughts about it; becoming preoccupied by ruminating excessively—
exacerbated whenever case-related activity increases, such as before the
deposition, when experts testify, and before and during the trial
Working through the lengthy process, during which physicians
psychologically and intellectually come to terms with the meaning of the
case, their role in it, and their approach to their own defense
Relative completion of response: physicians change in many ways as a
result of being sued. Ideally, adaptations lead to greater competence and a
more satisfying personal and professional life
Source: Charles SC. Coping with a medical malpractice suit. West J Med.
2001;174:55-58.
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
OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
6
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. 34, 35 Once the lawsuit is actually filed, it is easier to
find legal representation, although it is often very expensive. 34, 35
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. 35
Table 4. Phases of the medical malpractice litigation process
The complaint phase
The charge detailing what the physician allegedly did or
failed to do to cause the injury. This may be associated with a
public notice
Discovery phase
Interrogation: written questions regarding facts that are
thought relevant to the case
Depositions: oral testimony under oath that may be used in
court proceedings
Expert witness testimony: offers opinions by both sides that
are related to the facts of the case and their relevance to the
standard of care
Trial phase
Settlement: a series of pre-trial maneuvers that may lead to a
resolution of the case by a monetary or some other agreement
Trial: a procedure governed by an established set of rules that
allows each side to argue their view of the case
Verdict: decision by either judge or jury
Appeal phase
The losing party may request a review of the trial record to
determine if the letter and intent of the law was met
Modified from: Charles SC. Coping with a medical malpractice suit. West J
Med. 2001;174:55-58.
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 $1,688
in Wisconsin to a high of $10,025 in Pennsylvania (Figure 3). 44
Table 1 shows the magnitude of the existing tort liability system
and its global impact on the United States economy. 46 The median
amounts of annual medical malpractice premiums for various
medical and surgical specialties can be seen in Table 2. 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. 47
In fact, the average obstetrician/gynecologist starting out today
can expect to be sued at least three times in their professional
career. 47 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% to
50% of the basic policy premium – and apply such surcharge for
up to five years following the complaint. 47
Figure 5. Only 46% of the costs associated with tort liability are given to
plaintiffs to compensate them for their injuries. The majority of the costs
of the tort system go to defense costs (14%), plaintiffs’ attorney fees
(19%), and administrative costs (21%). Source:
http://www.legalreforminthenews.com/speakers/cost_of_abuse/cost_1.html.
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. 36-37
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.
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OPUS 12 Scientist – A Quarterly Publication of OPUS 12 Foundation.
© 2007 – OPUS 12 Foundation, Inc., King of Prussia, PA 19406 USA.
OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
7
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OPUS 12 Scientist 2008 Vol. 2, No. 1 A. Dippolito et al
Submitted 07/2005 – Accepted 11/2007 – Published 01/2008
Copyright 2007-2008 OPUS 12 Foundation, Inc.
The OPUS 12 Journal Network – Sharing Quality Science Worldwide
8
Table 5. Summary of representative cases of physician countersuits following frivolous medical malpractice and related lawsuits.
Source,
Date/State
Case summary Outcome and award Comment
40
2005 / MO
The physician was served with three lawsuits by former patients for whom he had prescribed
fen-phen. The judge declared that the physician had been "fraudulently joined" to the lawsuit.
Given that, the physician sued the lawyer who unfairly filed a lawsuit against him
The case is in the court system In order to overcome the statue of limitations, the attorney alleged
"fraudulent concealment" – a strategy that allows the case to be filed
despite the physician not having seen the patients for over five years
42
2004 / PA
Physician sues a personal injury lawyer who sued him following performance of successful
surgery and accurately diagnosing the patient
Attorney admitted to wrongfully suing the physician
Undisclosed settlement
34
2003 / PA
Neurosurgeon with no factual or legal connection to the patient’s demise was named in a
lawsuit. The physician’s legal team repeatedly advised the plaintiff’s attorney about the fact
that there was no basis for the lawsuit against the neurosurgeon. A countersuit was filed after
the initial deposition.
The lawyer’s supervising partner called the physician’s
attorney and offered to drop the original lawsuit.
Following that, the supervising partner called again and
offered to fire the lawyer who started the suit.
48
2002 / CA
A physician is sued by a patient in response to being turned over to a collection agency for
medical bill non-payment. The patient’s brother, an attorney, filled a lawsuit on behalf of the
patient and obtained a third-party legal representation.
Physician won the case
The patient filed for bankruptcy. The patient’s brother
(attorney) offered a settlement
Several years later, the same physician is frivolously sued by the
same attorney. In this case, the attorney filed the lawsuit without
obtaining expert opinion. The physician won again, and countersued
for malicious prosecution, with continuing resistance from the courts.
43
2002 / TX
Physician sued for prescribing a drug he never prescribed Physician won the case
$50,000
38
2002 / WV
Wrongful death case was filed against physician who never saw the patient. The physician
filed a countersuit on his own after he could not find a lawyer to represent him
Physician won the case
Undisclosed award
The physician and his insurance company spent $81,000 before the
case was settled
2
2000 / KY
Neurosurgeon sued plaintiff’s attorney for malicious prosecution Physician won the case
$72,000 including $60,000 punitive damages
39
1999 / TX
Physician claimed abuse of process when a worker’s compensation insurer attempted to
pressure him to testify against co-defendants
Judgment in favor of the physician
$125,000
While the physician did not sue the plaintiff’s attorney, the case is
important due to its precedent
41
1995 / MO
In the original case, one physician provided expert testimony for the plaintiff that did not
conform to majority or respectable minority opinion. The other physician filed a complaint
with the American Association of Neurologic Surgeons (AANS)
AANS concluded that the expert witness provided
“inappropriate” and “unprofessional” testimony and suspended
him for 6 months. No award
The expert witness filed a suit against AANS, unsuccessfully.
Although the complaint did involve the plaintiff’s attorney, the case
warrants mention due to its precedent and potential consequences
1
1983 / TN
An internist was sued by a patient who alleged that an episode of viral encephalopathy
following a herniorrhaphy was due to surgeon negligence. The internist did not participate in
the patient’s surgery. Moreover, the diagnosis of viral encephalopathy was made by a
neurosurgeon before the internist named in the lawsuit ever saw the patient.
The physician was vindicated by a jury trial
$10,000 compensatory / $20,000 punitive damages against
the patient
The patient’s attorney filed the malpractice claim before obtaining
relevant hospital records.
3
1980 / NV
The plaintiff’s attorney failed to obtain the patient’s medical records, did not consult a
physician either for obtaining information or retaining a medical expert for trial, and did not
submit his client’s claim to the appropriate screening panel (which was established by state
statue). Despite that, the plaintiff’s attorney offered to settle the case for a fee.
The physician argued that process was misused for the ulterior
purpose of coercing a nuisance settlement.
The physician was awarded $35,000 in compensatory
damages and $50,000 in punitive damages.
Very rare, this case represents successful prosecution based on an
abuse of process claim.
3
1980 / TN
A countersuit was brought based on theories of malicious prosecution and abuse of process
after the attorney who filed the malpractice suit was found to have failed to investigate the
case, to determine the standard of medical care in the community, and to take depositions.
The physician was awarded $3,000 compensatory damages
and $8,500 in punitive damages.
The court found that the attorney continued to pursue a groundless
appeal without his client’s consent or knowledge, and made certain
allegations in the new complaint that were based on pure speculation.
1
1975 / KY
After a patient suffered a heart attack at his home, he was examined at the hospital and found
to have a broken shoulder. After the patient recovered, he sued the hospital for allegedly
breaking his shoulder. One year later, his attorney amended the complaint, naming as
defendants the radiologist and the orthopedist involved in the care of the shoulder injury. The
case was complicated by the fact that the attorney was counsel to another hospital. As a result,
the attorney’s associate signed the original and amended complaints without reading them.
The attorneys agreed to a voluntary dismissal of the changes against the two physicians.
The physicians filed a suit against both lawyers, alleging
malicious prosecution and abuse of process. The doctors
claimed damages based on embarrassment, humiliation,
mortification, and mental anguish.
In a jury trial, the physicians were each awarded $5,000 for
physical/mental pain and suffering, $5,000 for humiliation
and loss of reputation, and $15,000 in punitive damages.
On appeal, the court upheld the compensatory damages against the
attorney who prepared the complaints, but reversed the judgment
against the attorney who had signed them without reading them.
Punitive damages also were dismissed. However, on further appeal,
the state Supreme Court upheld both the compensatory and punitive
damages, finding that the attorney had assailed the physicians’
reputations when he alleged negligent treatment.
32
1963 / CA
After a malpractice action for wrongful death against the defending physician was filed, the
plaintiffs’ attorneys made defamatory statements about the physician. After these statements
were published in a newspaper, the doctor filed a lawsuit alleging defamation. The physician
alleged the loss of at least one patient as a result of the publication.
Both the newspaper and the patient-plaintiff’s attorney were
found liable for defamation (libel and slander).
The physician was awarded $13,000 compensatory and
$5,000 punitive damages
One of few cases of successful defamation countersuit
