• Government
• Profession
• Business
• Opinion
• Health

• Health reform
• H1N1
• P4P
• EMRs
• Medicare
• Liability
• AMA House
• » More

• Book Excerpt
• Business Pitch
• Meetings
• » More

• Contract Language
• Ethics Forum
• In the Courts
• Practice Management
• Technically Speaking
• » More

• Bby date
• Regions
• Health plans
• Sections
• News briefs
• Columns
• Editorials
• Letters
• Writers
• Other years

• Search tips
• E-mail alert
• Radio
• RSS
• Mobile
• Subscribe
• Institutions
• Staff directory
• Advertising
• Permissions
• Reprints
• News media
• Site guide
• Useful links
• About
• Premium
• Contact

Fighting frivolous lawsuits: Doctors engage in an uphill battle

The malpractice lawsuit naming you was pointless and you want to fight back. A few physicians have countersued, but even fewer have been successful. Here's why.

By Tanya Albert, amednews staff. Oct. 27, 2003.

• PRINT|
• E-MAIL|
• RESPOND|
• REPRINTS|
• SHARE

Many physicians have fantasies about suing the lawyers they believe frivolously named them in medical malpractice lawsuits.

Few, however, have actually turned that fantasy into reality. And of those who have, few have emerged victorious from the courtroom.

The reasons are myriad. The justice system wants to ensure that people have open access to the courts. And legally, frivolity is a tricky claim to prove.

Also, while a countersuit can be filed at any time after the filing of the lawsuit on which it was based, it likely won't be heard until after the initial case is disposed of in a manner favorable to the physician filing the countersuit. Whether that comes after a jury trial or after the physician is dropped from the lawsuit, the process often can take years. By then, some physicians just want to put the whole ordeal behind them.

Finding a lawyer who is willing to file a lawsuit against another lawyer can be a daunting task. In several cases, physicians who have studied law file their own lawsuits and worry about finding lawyers to represent them later.

But as doctors increasingly feel like their names are being haphazardly slapped on lawsuits and grow more frustrated with the increase in medical liability insurance rates that result even if they are found to have no fault in a medical malpractice case, they are becoming more willing to venture down the rough countersuit road.

It's not just about winning. Physicians hope that if a greater number of them file their own lawsuits when justified, they will send a message to lawyers who file meritless cases. Doctors also are experimenting with tactics that could prevent frivolous lawsuits from being filed in the first place.