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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.

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.

Countersuit tactics
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Topic: Liability crisis

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.

"Physicians have gone from feeling total defeat and isolation when they are sued to feeling that something should be done about it," said emergency physician Louise Andrew, MD, who also has her law degree and is associate director for the Center for Professional Well-Being. "They're not just giving up and giving in anymore. They are looking at their options in the appropriate cases."

Defining frivolity

While many physicians may feel unfairly attacked when they are named in medical malpractice lawsuits, not every case is a frivolous one, and doctors have to choose their battles carefully, experts say. There needs to be a balance in the justice system: one that prevents people from being sued frivolously, yet doesn't deny people from having their day in court. If lawyers were to be successfully sued too easily for the cases they file or were required to do too much research before filing the suit, it could hinder plaintiffs' ability to file lawsuits, some say.

A frivolous lawsuit is one in which any reasonable review of medical records shows the lawsuit had no factual or legal basis. It wouldn't include a situation that might fall into a gray area, where there is a legitimate question about what may have contributed to a patient's outcome.

14 states require a doctor to verify that a malpractice lawsuit has merit before it can be filed.

"A countersuit is an effective weapon in litigation, but it can backfire if used unprofessionally," Barton L. Post, an attorney and CEO of Professional Risk Retention Group Inc., a Pennsylvania medical liability insurance company, writes in an essay, "Fighting frivolous malpractice lawsuits."

"A doctor and lawyer who bring a frivolous countersuit can themselves be countersued, doubling their problems," he said.

Post, a founder of the Philadelphia-based Post & Shell law firm, practiced law for 30 years before helping found the new medical liability insurance company earlier this year. Professional Risk Retention Group is distinguishing itself from other carriers by examining cases when they are filed against their insureds to determine whether the case is frivolous.

If it is, the insurer will file a countersuit immediately rather than waiting for the initial lawsuit to be cleared up. That can result in the case against the physician being dropped earlier so the doctor doesn't have to go through depositions or potentially a trial.

"We're intent on stopping frivolous lawsuits," Post said in an interview. "I have seen so many cases where a plaintiff comes in and sues 10 doctors when one may be responsible."

During his law career, Post said he used the tactic when it was appropriate and was successful. In one instance, Post defended a neurosurgeon who was one of numerous physicians named in a case. But the physician had no factual or legal connection to the patient. Post and the neurosurgeon told the plaintiff's lawyer several times that the neurosurgeon should not be named in the lawsuit, but the lawyer refused to drop him from the suit.

5 states that require a certificate of merit won't automatically release the identity of the verifying physician.

At the neurosurgeon's deposition, Post told the plaintiff's lawyer that everyone knew the case was without merit and that if the lawyer wanted his questions answered, he would have to get a court order; and he told the lawyer he was going to file a countersuit.

Post did so shortly after the deposition. Ultimately, the opposing firm agreed to drop the neurosurgeon from the suit and fired the lawyer who started the lawsuit. The doctor decided to drop his countersuit after that.

"You have to pick the cases properly, and [the opposing side] will usually drop the case," Post said.

And occasionally, physicians are successful in their countersuits.

Most recently, West Virginia thoracic surgeon Saad Mossallati, MD, in late 2002 settled a lawsuit he filed against an attorney who named him in a lawsuit because he was listed as consulting on a car crash patient who later died. Dr. Mossallati was attending to another patient at the time, but he spent four years and his insurance company spent $81,000 defending the case before it was dropped.

Other tactics doctors are taking

More often than not, countersuits are thrown out, so the ultimate goal is to keep frivolous lawsuits from being filed in the first place.

A part of the tort reform push in states nationwide is an effort to try to stop a meritless lawsuit from being filed by requiring a physician to review a case and sign a certificate of merit before a medical malpractice lawsuit can be filed.

While that helps cut down on some cases being filed, physicians don't believe it completely weeds meritless cases out of the system.

Some physicians are finding ways to go after expert witnesses used by plaintiff attorneys, rather than the attorneys themselves.

In suburban Chicago, emergency physician William P. Sullivan, DO, is suing to find out who signed a certificate of merit in a case that was ultimately dropped against him. Illinois is one of 14 states that require a physician to verify that a medical malpractice lawsuit has merit before it can be filed. But it is one of the five states that don't automatically disclose the name of the physician who signed it.

Dr. Sullivan is suing, saying he has a right to know who signed. Earlier this year, a lower court disagreed. The case is now on appeal to the Illinois 1st District Court of Appeals.

Two physicians this year formed the Coalition and Center for Ethical Medical Testimony, a group aimed at weeding out medical expert witnesses whose bad testimony helps advance frivolous lawsuits. Both doctors and lawyers have joined the group, said Dr. Andrew, the president and founding partner of the coalition.

In early spring 2002, Jeffrey Segal, MD, launched Medical Justice in Florida, an insurance company that provides physicians with legal resources they would need to countersue. When a lawsuit is filed against a physician who has a policy with Medical Justice, the company, among other things, pays for an attorney to review whether a medical expert perjured himself or herself or falsely testified; then it notifies state licensing boards and other entities if necessary.

"I just want to make sure there are people taking care of us later," said Dr. Segal, who came up with the idea after seeing colleagues become fed up with frivolous lawsuits. Dr. Segal is a neurosurgeon who left the profession a few years ago to head up a biotech company.

His idea has taken off and is now offered in Alabama, Arkansas, California, Colorado, Connecticut, the District of Columbia, Florida, Illinois, Kentucky, Louisiana, Maryland, New Mexico, North Carolina, Ohio, Puerto Rico, South Carolina and Tennessee.

Physicians also are trying to cut down on frivolous lawsuits before a patient even contacts a lawyer. Medical Justice has the patients of its physicians sign a contract saying they won't sue for frivolous reasons.

What the future holds

With medical liability insurance rates climbing, physicians say it's becoming increasingly necessary to let lawyers know that they're not going to put up with frivolous lawsuits anymore.

"It's a difficult thing to do. It's time-consuming, and good luck finding a lawyer," said West Virginia emergency physician Kyle S. McCammon, DO, who has written on the topic of physician countersuits after watching his wife, an obstetrician-gynecologist, go through the process of filing an unsuccessful countersuit.

"But a physician's willingness to pursue this avenue has potential to shake up the legal system," Dr. McCammon said.

There is movement in shaking up the system, Dr. Andrew said. But she and other say it's difficult to predict how long it will be before long-term results are seen.

"Every case deserves real scrutiny by people who know the medicine involved," Dr. Andrew said. "I don't think any doctor wants a patient who is injured by malpractice to go uncompensated. But they don't want to be in a place of supplementing people who had bad luck."

ADDITIONAL INFORMATION:

Countersuit tactics

Physicians use some common legal arguments when attempting to countersue a lawyer they think filed a frivolous medical malpractice lawsuit. Often these are hard to prove in court.