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Fighting frivolous malpractice lawsuits

By Barton L. Post, Esq.

While officials grapple with malpractice legislation in Harrisburg, doctors can take steps against abusive malpractice lawsuits. After being served with a frivolous lawsuit, a doctor can request his or her defense lawyer to file a countersuit. The defense lawyer will carefully consider whether the suit is indeed frivolous. If the lawyer agrees with the doctor, then they have taken the first step toward ending the frivolous malpractice lawsuit.

An episode from my 30 years of defending doctors illustrates how a countersuit can work effectively. The name of my client, a neurosurgeon, as well as the names of a number of other doctors, duly appeared in the records of a patient who died in the course of treatment. My client was among the doctors named as defendants, but he had no factual or legal connection to the patient’s unfortunate demise. We repeatedly advised the plaintiff’s lawyer that there was no basis for the lawsuit against my client, but he refused to drop the claim.

My client and I decided to surprise the lawyer at my client’s deposition.

At the deposition, when the lawyer asked my client to state his name for the record, my client identified himself, and then he stated that everyone, including the plaintiff’s lawyer, knew the case lacked merit. He noted the lawyer’s repeated refusal to terminate the case voluntarily. He then told the lawyer that if he wanted questions answered, he would need a court order. Then he declared that we were leaving the deposition and returning to my office to start a countersuit. That is what we did.

After we filed the countersuit, the lawyer’s supervising partner called me twice. The first time he offered to drop the malpractice lawsuit entirely if we dropped the countersuit. We declined his offer because our case was solid. The second time he called he said he was also willing to fire the lawyer who started the suit. That offer satisfied my client and we dropped the countersuit (contrary to my recommendation). We were within our rights to proceed with our countersuit, but my client was a caregiver, so he opted against doing more harm than he thought necessary.

While the outcome of this episode was professionally and viscerally satisfying for my client, the strategy we used must be employed with professional care. A countersuit is an effective weapon in litigation, but it can backfire if used unprofessionally. Bringing a lawsuit requires the persons bringing it to have a reasonable belief in its merit. The same rule applies to a countersuit. A countersuit that fails to meet this standard is a frivolous countersuit. A doctor and lawyer who bring a frivolous countersuit can themselves be countersued, doubling their problems. To avoid that situation, it helps to understand the theory behind a malpractice countersuit.

A malpractice countersuit alleges that the malpractice lawsuit is meritless and that the persons bringing it are abusing the legal process. The lawsuit against my neurosurgeon client is an example of a meritless lawsuit. Any reasonable review of the medical records showed the lawsuit had no factual or legal basis. By filing a complaint, serving interrogatories, subpoenaing my client for deposition, and conducting other discovery, the lawyer was abusing the legal process, which was not designed for the pursuit of frivolous claims.

Once the doctor and lawyer have decided to move forward with an abuse of process countersuit, they must consider whom to name as defendants. One target is the lawyer who filed the frivolous lawsuit. To defend against the countersuit, the lawyer must explain to an already overburdened court why he has used the legal process to pursue an unmerited malpractice claim. Realizing the difficulties such a task presents prompted the two offers to my neurosurgeon client.

Another target is the law firm, if any, where the malpractice lawyer works. The law firm legally deserves some blame for its lawyer’s poor behavior. Pointing that fact out with a countersuit helps build pressure to drop the frivolous suit. In my neurosurgeon client’s case, that pressure caused the lawyer who filed the original malpractice suit to be fired.

Other countersuit targets include the so-called medical expert who lends his name and imprimatur to the frivolous allegations. In almost every malpractice lawsuit, an expert witness will provide a report that the doctor’s medical care failed to meet the standard of care and caused the alleged injury. The law assumes that juries need the expert’s guidance to judge these matters. By exploiting this rule with a questionable expert opinion that abets frivolous allegations, the so-called expert is abusing the legal process. A countersuit against an expert can be very hard to prove, however, so I recommend proceeding against the expert only if he is a “professional witness.”

Another target is the patient who authorized the lawyer to file the frivolous lawsuit. While suing a patient may be antithetical to the doctor-patient bond, involving the patient helps exert pressure to drop the frivolous lawsuit.

By winning a countersuit, a doctor can exact both compensation from and punishment against the countersuit defendants. First, the doctor can recover compensatory monetary damages for the practice time and resultant income lost while defending against the frivolous suit. Reviewing the patient’s medical records, meeting with counsel, attending depositions, trial, etc. can be quite time consuming. Second, the doctor can recover for the anguish, frustration and embarrassment experienced in being named a defendant unjustly. While money alone cannot fully repair this damage, the law recognizes that money offers some relief. Third, legal costs of defending against the frivolous lawsuit may be recoverable. Fourth, it is reasonable to seek as damages any malpractice premium hikes attributable to the frivolous claim.

Beyond compensatory damages, a doctor can also seek punitive damages against the countersuit defendants. Critics see punitive damages as windfalls for malpractice plaintiffs and their attorneys. Even though malpractice cases produce occasional well-publicized high punitive damages awards, punitive damages were actually conceived with a legitimate purpose: to punish a malefactor for recklessly or intentionally engaging in harmful behavior. By punishing the malefactor, a punitive damages award discourages the malefactor and others from ever repeating the offending act. Bringing a frivolous lawsuit is the kind of behavior that punitive damages awards were designed to punish and prevent.

Bringing a countersuit can be an effective litigation device from the time it is started through the time it is resolved against the countersuit defendants. But there are two schools of thought on how to best use the countersuit to end frivolous malpractice litigation. The two schools of thought can be classified as those who are willing to administer ‘weak medicine’ and those who are willing to administer ‘strong medicine.’

‘Weak medicine’ advocates consider a countersuit successful when it pressures a litigator to drop a frivolous lawsuit. Weak medicine advocates believe that is the only realistic outcome given the current rule governing malpractice countersuits. The current rule allows a countersuit to move forward only after the initial malpractice lawsuit has concluded in the doctor’s favor.

‘Strong medicine’ advocates, however, believe the current crisis presents an opportunity to see the rule changed, allowing the doctor to pursue trial and damages much sooner. In all cases before any court, there are three factors the court may consider in deciding the case: the law, the facts, and public policy. Strong medicine advocates believe the correct strategy is to respond to a blatantly frivolous lawsuit with a countersuit shortly after the original suit is started, and with the resolve to see the countersuit to its end. Bringing the countersuit to a court’s attention will give the court an opportunity to change the rule, citing the crisis as a public policy basis for its decision. Changing the rule would discourage lawyers from bringing frivolous lawsuits and help bring the crisis to an end. Strong medicine advocates see this tactic as the way to end frivolous malpractice lawsuits permanently.

Both the ‘weak medicine’ and the ‘strong medicine’ approaches to the countersuit offer benefits and risks. No matter which course a doctor chooses, the care one must exercise in planning a countersuit cannot be overstated. A countersuit with no merit is not only abusive, it could prejudice the doctor’s defense in the original malpractice litigation. Handled properly, however, bringing a countersuit can be an effective way to end the individual frivolous lawsuit quickly or end all such lawsuits permanently.

Barton L. Post, Esq., is a cofounder of Professional Risk Retention Group, Inc., a medical malpractice insurance company based in Eddystone, Pa., and the founder of Post & Schell P.C., a law firm based in Philadelphia, Pa.

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