Physician counter-actions against malicious negligence claims

The current medical malpractice system in the U.S.A. does not work well for physicians or patients, observers say. There is little correlation between lawsuits filed and negligent care. Furthermore, the legal standard of medical negligence performs poorly in malpractice litigation. And because the legal system does not punish attorneys for inadequately investigating claims before they are filed, many medical malpractice lawsuits are frivolous.

On the one hand, only about 2 percent of negligent medical errors ever result in a malpractice claim, according to a study published in the New England Journal of Medicine (1991).

On the other hand, only about 20 percent of medical malpractice lawsuits are definitely related to adverse events due to negligence, according to another study reported in the NEJM (1995).

Despite this, about half of all negligence lawsuits result in a verdict for the plaintiff.

Since there is currently no other recourse for physicians, one plausible means of legal recourse is counter-actions against lawyers and their clients based on legal theories of recovery for malicious prosecution or abuse of process. To show an abuse of process, for example, the physician must prove that the plaintiff or attorney made improper or unauthorised use of the legal process; that the plaintiff had an ulterior motive in bringing the suit; and that the physician was damaged as a result of the action.

Although difficult to litigate and even harder to win, properly selected physician countersuits in response to unfounded medical malpractice litigation may produce beneficial results regardless of their outcome.

Source: Kyle S. McCammon, Fighting Fire With Fire: Physician Countersuits, Medical Sentinel, Fall 2002.

For more on Patient Protection http://www.ncpa.org/iss/hea

FMF Policy Bulletin\25 September 2002