Fighting Fire With Fire: Physician Countersuits
Kyle McCammon, DO, FAAFP, FACEP
For many reasons, our current medical liability system functions in an unjust an inefficient manner. Because there is little correlation between the filing of lawsuits and negligent care, the legal standard of medical negligence performs poorly in malpractice litigation. Since the legal system does not punish attorneys for inadequately investigating claims before they are filed, many medical malpractice lawsuits are frivolous. Overall, only about 20 percent of medical malpractice lawsuits are definitively related to adverse events due to negligence. Despite this, about half of all claims still result in plaintiff verdicts. Conversely, only about one in fifty negligent medical errors ever result in a malpractice claim. Therefore, the current system does not work well for physicians or patients.(1-3)
Given the adversarial nature of our legal system, it is not surprising that many physicians become outraged after they have endured a medical malpractice lawsuit.(4) These strong feelings of resentment are often most intense when the lawsuit was based on unfounded or frivolous allegations:
The malicious prosecution of legal remedies to subserve unworthy personal ends is not only an injury to the victim of the particular persecution, but also to society at large. If the law will not punish such conduct, public confidence in the merits of our system of jurisprudence must inevitably be shaken, and the courts themselves will seem to have forsaken their high function as protectors and vindicators of invaded rights and to have become, instead, the accomplices of evil men.(5)
In response to this injustice at the hands of the legal system, some physicians have considered methods of retaliation against malpractice plaintiffs and their attorneys who have brought unfounded lawsuits:
The law should provide a remedy for every wrong, and a litigant should not be permitted to bring suit with charges of fraud, deceit, or other imputation of improper conduct against the defendant, such charges being knowingly false, malicious and without probable cause, without being required to respond in damages for the harm so wantonly done.(6)
Physician Countersuit Litigation
It appears that the only plausible means of legal recourse available to physicians is through the legal theories of recovery known as malicious prosecution or abuse of process.(6-13)
In order to prove malicious prosecution, the plaintiff physician must show: 1) that the defendant instituted (or continued) a prior judicial proceeding against the plaintiff physician; 2) that the prosecution was instituted without probable cause; 3) that the defendant acted maliciously in instituting the action; 4) that the prosecution terminated in the plaintiff physician's favor, and; 5) that the plaintiff physician was damaged by the action:
If an attorney, acknowledging there is no cause of action, and knowing this dishonestly and for some improper purpose files suit, or even if an attorney merely acts knowing that his client has no just claim and that his client is actuated by illegal or malicious motives, the attorney may be held liable for malicious prosecution.(6)
Nevertheless, the courts have declined to hold attorneys liable for malicious prosecution, except in a few extreme cases. The difficulty that one has in successfully pursuing a malicious prosecution action is in proving a lack of probable cause. The courts have ruled that probable cause is determined on the basis of the facts known to the attorney at the time the malpractice lawsuit is filed and that lack of probable cause cannot be based solely upon an attorney's apparent failure to conduct prompt and thorough discovery. Therefore, the threshold for establishing lack of probable cause is so high that it becomes virtually impossible to prove.(5-13)
An abuse of process is the misuse of a regularly issued process for any purpose other than that for which it was designed. The required elements to prove abuse of process are: 1) the plaintiff or attorney made improper or unauthorized use of the legal process; 2) the plaintiff had an ulterior motive in bringing the suit; and, 3) the physician incurred damage as a result of the action. In an abuse of process countersuit, it is not necessary to prove that the original proceeding lacked probable cause or terminated in the plaintiff physician's favor.
Thus, if a malpractice lawsuit that has no basis for a claim is filed solely for the ulterior motive of coercing a settlement or to neutralize an existing debt, then abuse of process has occurred. However, the courts have also declined to hold attorneys liable for abuse of process. The courts have ruled that a lawsuit, whether frivolous or not, has the purpose of settlement, which is a legitimate goal of proper process.(6-11,13)
Perhaps, a more novel response to an unfounded medical malpractice lawsuit would be to attempt to evoke the tort of abusive litigation. Although not yet a precedent for a medical malpractice physician countersuit, the court has created the tort of abusive litigation to establish liability for plaintiffs who assert groundless suits and suits which "while having some merit, are brought with the principle intent or effect of harassment, coercion, or embarrassment."(6)
Unlike countersuits, the claim of abusive litigation must be pleaded as a counterclaim response to the original suit and both the suit and counterclaim are resolved within the initial proceeding. An abusive litigation counterclaim could be advantageous for the physician who is required to defend a frivolous medical malpractice lawsuit because the insurance company's malpractice attorneys who are involved in the lawsuit could also litigate the counterclaim.
The policy considerations that have caused the courts to view countersuits unfavorably are concerns that countersuits would result in reduced free access to the courts because potential plaintiffs would be fearful of reprisals and attorneys would be reluctant to undertake representation in difficult matters if they were fearful of being held liable for the merits of their client's cases(5,6,8,9,11-13):
While we can sympathize with the physician's predicament, as with that of any person who, confronted with an unwarranted and unfounded lawsuit, must still expend time, money and suffer anxiety, nevertheless we feel, as have the other courts that have considered the problem, that this, unfortunately, is a price which must necessarily be paid to keep the courts open to the people. The importance of free access to the courts demands that this access be maintained even though occasionally some innocent person must suffer.(6)
Physicians must realize that just because the courts may not favor malicious prosecution or abuse of process as cause of action, the action is still just:
A wise policy requires that the honest claimant should not be frightened from invoking the aid of the law. Certainly, no such policy demands that malice should, by the assurance of protection in advance, be encouraged to vex, damage, and even ruin a peaceful citizen by the illegal prosecution of an action upon an unfounded claim.(5)
Free access to the courts cannot be achieved while effectively denying access to some (i.e., the physician who has been unjustifiably sued for medical malpractice). The damage to one who is unjustifiably made to defend a frivolous lawsuit should override all other considerations, for there should be no legal right to harass another:
Those patients...who recklessly bring a malpractice action, either without probable cause or with some ulterior motive, should not be afforded the protection given by the judicial process to legitimate actions and should be held liable in a countersuit brought by the injured physician.(6)
Furthermore, at the present time, countersuits are the only available course of legal action that can be utilized by physicians to restore justice after they have been unwarrantedly damaged by the legal system. Additionally, the potential threat of a countersuit is the only legal deterrent available to protect physicians from frivolous malpractice lawsuits. However, physicians must also realize that countersuits should not be initiated out of a sense of outrage or revenge. Rather, countersuits should be initiated only when there is objective belief that the original malpractice action was indeed frivolous.(11)
Physician Countersuits: A Realistic Option?
The reasons why physicians are discouraged from pursuing legal action when they have been subjected to an unfounded malpractice lawsuit are two-fold. First, legal counsel and acquaintances tell physicians that they should feel gratified to have "won" their case. The expense, annoyance, frustration, and inconvenience of defending a lawsuit, or the loss of income, increase in medical malpractice insurance premiums, damage to personal and professional reputation, or mental suffering are generally not fully appreciated by these individuals. Lacking the support of a collectively shared outrage, physicians usually feel compelled to "forget" the experience and merely attempt to reestablish themselves in their practices. Second, even when physicians are passionate about achieving justice and begin to think about pursuing a countersuit, they become discouraged when they find out how difficult it would be to obtain legal representation, how costly and time-consuming it would become, and how very little possibility of success it would actually have.
Still, physicians should remember that the law has established a precedent for countersuits as a just cause of action. Therefore, properly selected cases would have to be dealt with in a serious manner by the court.
Analysis of a Physician Countersuit
In the case of McCammon v. Oldaker, et al., Julie K. McCammon, MD, FACOG, filed a pro se malicious prosecution countersuit against the plaintiff attorneys who represented a fraudulent client in a medical malpractice lawsuit.(14) In the original malpractice suit, the patient plaintiff sued Dr. McCammon when she sustained a femoral neuropathy at the time of pelvic surgery.(15)
Although an electromyelogram performed soon after the surgery confirmed a femoral neuropathy, as time progressed it became readily apparent the patient was lying about the extent of her disability. Not long after surgery, the patient's medical records documented inconsistencies in her examinations and subjective overlay to her symptoms. In the pretrial examination, almost three years after the surgery, her leg motor strength was only one over five. The plaintiff and other witnesses testified in court that she could not walk without using a brace. Her disability was alleged to be so permanently severe the plaintiff's husband was also suing for loss of consortium. An electromyelogram was never repeated before trial.
Because the prognosis of post-operative femoral neuropathy is overwhelmingly one of mild, temporary disability followed by complete recovery,(16-19) and because the demonstrative facts of the case suggested that the patient had recovered from her temporary disability, surveillance videotapes were made before trial. The videotapes showed the patient plaintiff carrying heavy boxes while walking down steps, changing positions from squatting to standing while doing yard work, and walking unhindered outside her home --- all without the use of a brace. At the time of trial, portions of the videotape were allowed as evidence to impeach the plaintiff's testimony.
When confronted with the realization that the court now had direct knowledge that the plaintiff was a fraud, the plaintiff's attorneys remarked that they would never have taken the case to trial if they had known that their client was lying. Still, after much deliberation, the plaintiff's attorneys decided to continue to prosecute the suit. However, not only did they continue to litigate the suit, they even represented her in an appeal of the defense verdict.(20)
Because she was not able to find legal representation for a malicious prosecution countersuit, Dr. McCammon filed the countersuit as a pro se litigant in order to ensure that the claim would be filed before the expiration of the statute of limitations. Subsequent to this, she was able to secure legal representation.
At the first judicial hearing called by the defendants to plea for a dismissal of the countersuit, the judge made no official ruling since the original malpractice suit was still on appeal. The legal concern was that the potential merits of the malicious prosecution countersuit hinged on the outcome of the appeal. Instead of placing a "stay" on the countersuit pending the outcome of the appeal, Dr. McCammon's attorney decided to have the case dismissed without prejudice. This meant that Dr. McCammon would be able to re-file the countersuit if the plaintiff from the original malpractice case lost her appeal. After the countersuit was dismissed without prejudice, Dr. McCammon's attorney dismissed her as his client.
The countersuit was re-filed by another attorney less than one year after the original malpractice suit received an appellate defense verdict.(21) In the first pretrial hearing, the judge asked the West Virginia State Supreme Court to rule on specific questions that were raised by the court. One concern regarded the expiration date of the countersuit statute of limitations and whether or not it was affected by the original appeal. After the case was argued before the State Supreme Court, the justices dismissed the case by ruling that the original appeal had no "tolling" effect on the statute of limitations, and therefore, the countersuit was re-filed after the expiration of the statute of limitations.(22)
The attorneys' fees for the countersuit totaled $10,000, despite the fact that there were only two hearings and one oral argument, and no discovery or depositions were conducted. Dr. McCammon has since filed a pro se legal malpractice lawsuit against her first attorney in the countersuit.(23) She cites negligence on the part of the attorney for dismissing the countersuit and not informing her of the statute of limitations. Thus far, she has been present at many hearings, conducted depositions, retained an expert witness, and has written several legal briefs required by the court. She has managed to finally secure a court date to prosecute her case before a jury.
Physician Countersuits: Lessons Learned
Many lessons can be learned from Dr. McCammon's attempt at a physician countersuit. Due to the "chilling effect" of countersuits, attorneys do not routinely sue other attorneys in these types of cases. 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 (even though they may still be willing to take your money).
Due to the difficulties of retaining legal representation within the time constraints of the one-year statute of limitations, the only reliable way for countersuits to become more common may be for physicians to initiate them as pro se litigants. 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.(24)
Once the lawsuit is actually filed, it is easier to find legal representation, albeit for an exorbitant fee. The attorney's fees would no doubt be truly prohibitive, if any countersuit were to advance through discovery and into court. 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 very time-consuming, too logistically challenging, and is probably unrealistic in most instances. It seems that entering into a contingency fee agreement with an attorney would probably be the best solution, especially if the countersuit survives beyond the first few pretrial hearings. Alternatively, the physician could investigate the possibility of pursuing an abusive litigation counterclaim.
Potential Benefits of Physician Countersuit Litigation
Importantly, even if a physician countersuit is subsequently dismissed, it will still serve the purpose of putting attorneys on notice that they are running the risk of being sued if they file frivolous medical malpractice lawsuits.
Although just one case could create a ripple effect of concern within the legal community, the reality is that since so few malicious prosecution countersuits are filed, they currently pose no real threat to attorneys. In order for physicians to truly effect the decisions of attorneys and attempt to hold them accountable for their actions, countersuits will have to become a much more common response to frivolous malpractice lawsuits. If an increased number of countersuits are filed, they could still have a positive effect of deterring frivolous litigation even if a plaintiff physician verdict was not rendered.
Another potential beneficial outcome resulting from a greater number of physician countersuits would be an increased public awareness regarding the injustices of the current medical liability system and the negative impact of frivolous medical malpractice lawsuits. This could allow physicians to become more effective advocates for the key provisions of tort reform legislation that includes: 1) a cap of $250,000 on non-economic damages; 2) a cap on attorneys' fees or a graduated contingency fee scale; 3) a periodic system of payment of plaintiffs' awards; 4) the disclosure of the collateral source rule; 5) a requirement for a certificate of merit or notices of the intent to sue; and, 6) the formation of alternative dispute resolution panels.(25-29)
It is unlikely that attorneys would have any new action to apply in response to increased numbers of physician countersuits since, under the current system, they already have no stone left unturned in which to cause physicians any greater harm. However, physicians would be able to counter that fewer countersuits would be necessary if attorneys would better investigate their clients' cases before filing suit and if substantial tort reform measures were enacted.
Although difficult to litigate and even harder to win, properly selected physician countersuits as a response to unfounded medical malpractice litigation may produce beneficial results irregardless of their outcome. This tactic of fighting fire with fire may be successful in deterring frivolous litigation. Countersuits may also produce wider benefits by forcing the judicial system to strike a balance between the rights and obligations of its participants and by serving as a catalyst for medical liability reform in states that desperately need tort reform legislation.
Unfortunately, physicians must also remember to temper their enthusiasm for countersuit litigation with reality. That is --- when fighting fire with fire, it is easy to get burned.
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22. McCammon v. Oldaker, Venezia, Harvit, and Shinaberry. In the Supreme Court of Appeals of West Virginia, January 1999 Term. No. 25443. Certified Questions from the Circuit Court of Harrison County, Civil Action No. 96-C-22-2. Decided June 1, 1999.
23. McCammon v. Pool. Civil Action No. 01-C-118-2 in the Circuit Court of Harrison County, West Virginia. March 21, 2001.
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Dr. McCammon is an emergency medicine physician in Clarksburg, WV,
and a fellow of the American College of Emergency Physicians and the American
Academy of Family Physicians. His e-mail is email@example.com.
Originally published in the Medical Sentinel 2002;7(3):88-91. Copyright ©2002 Association of American Physicians and Surgeons.