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 siang@hawaii.edu.