I’ve won my malpractice case — Can I countersue the plaintiff now?
We, as defense attorneys, are often presented with a situation in which we have successfully defended a physician in a malpractice case, perhaps even had the case dismissed at an early stage in the proceedings, and the physician subsequently wants to sue the plaintiff and the plaintiff’s attorney for having subjected him or her to a "frivolous lawsuit." This also comes up in the context of qui tam suits brought against physicians under the federal False Claims Act. Physicians are perhaps even more incensed when faced with qui tam suits because they usually do not have insurance coverage to pay their defense costs or to protect them from a possible judgment that might be enormous. The successful physician defendant in a malpractice or a qui tam case understandably feels that he has been damaged and would like to turn the tables and return the favor.
Can a countersuit be brought against an unsuccessful plaintiff? The answer is often "Yes, but . . .," with emphasis on the "but . . ." As you will realize when you have finished reading this article, the likelihood of success in a countersuit is very low. In addition, any negative publicity that the physician might have received as a result of having been sued in the first place might be rekindled. We all know that a malpractice claim potentially worth millions can find a prominent place in the local newspaper, while a subsequent judgment for the physician is unlikely to receive as prominent a position. However, unless the facts of your case are extraordinarily favorable for a countersuit, the best advice is to let it go.
Before initiating a countersuit, a physician would do well to consider the fact that he or she has an extremely remote likelihood of prevailing in a countersuit. Then, after losing the countersuit, which is the overwelmingly likely outcome, it will be only natural for some people to question the favorable verdict the physician won in the underlying malpractice case — "If Dr. Smith didn’t do anything wrong, why did she lose her countersuit?" People do not understand how difficult it is to win a countersuit and might see the countersuit as merely a retrial of the original malpractice case, this time with a judgment against the physician.
Medical malpractice countersuits have been brought under a variety of theories, although many jurisdictions have limited the allowable claims to malicious prosecution and abuse of process. Other tort claim theories that have been used in an attempt to countersue a malpractice plaintiff and his or her attorney include "defamation, invasion of privacy, professional negligence, prima facie tort, intentional infliction of emotional distress, violation of the attorney’s Code of Professional Responsibility, barratry, or willful and wanton institution of suit."1
In the following pages we will look at a number of medical malpractice countersuit cases, primarily claims of malicious prosecution and abuse of process. Cases brought under the other tort theories listed in the previous paragraph are really of academic interest only; they are universally losers. Before proceeding, let me make it clear what the odds of winning a countersuit are: malicious prosecution (remote); abuse of process (probably less than remote); and other torts (virtually nonexistent).
Malicious Prosecution
Malicious prosecution is the favored claim in a medical malpractice countersuit, although labeling the claim as "favored" is misleading. It is only favored in reference to the other claims that are sometimes brought in countersuits. Malicious prosecution is technically limited to wrongful prosecution of criminal matters. The claim brought in response to a civil suit that is perceived to have been frivolous is more correctly labeled as "wrongful use of civil proceedings." That being said, it is the common usage, although technically incorrect, to refer to such cases as malicious prosecution claims.
The elements of malicious prosecution in the context of a civil case (i.e., the factors that must be proven in order to prevail) are (remember that, in this context, the "plaintiff" is the physician):
1. The defendant must have instituted, or caused to be instituted a case against the plaintiff.
2. There must have been a lack of probable cause to institute that claim.
3. The defendant must have instituted the previous claim with malice.
4. The previous proceeding must have been resolved in the plaintiff’s favor.
5. The plaintiff must have suffered damages as a result.2
It might seem as if at least the first of those elements would be a given. Even that, however, is not always the case. It becomes an issue in those jurisdictions that hold that only the original plaintiff may be held liable for malicious prosecution, not the attorney who brought the case. Those jurisdictions hold that the attorney is merely the agent of the plaintiff in bringing the suit and, therefore, cannot be personally held liable for malicious prosecution. This is a problem, if for no other reason, because it eliminates a potential "deep-pocket" defendant when the patient/former plaintiff might be judgment-proof (i.e., without sufficient funds to cover a judgment).
Case No. 1: Dutt v. Kremp, et al.3
In Dutt, the Supreme Court of Nevada considered an appeal of a jury verdict and judgment against an attorney, Virgil Dutt, for malicious prosecution and abuse of process. Mr. Dutt had previously filed a malpractice action against the physicians on behalf of Jack Rentnelli. This malpractice case was then voluntarily dismissed by the plaintiff. Following dismissal of the case, the physicians brought suit against both Mr. Dutt and his client, Mr. Rentnelli, claiming malicious prosecution and abuse of process.
Editor’s note: For any of our readers who read actual case reports, this case provides an important lesson. While the opinion of the majority of the court is the law, there is often much to learn from reading the dissent’s opinion. In this case, the decision of the Nevada Supreme Court was 3-2. But for one of the concurring votes, this case would have had an opposite result. That is, the dissent’s opinion would have been the majority opinion, i.e., the law.
According to the majority’s version of the facts, Mr. Rentnelli was treated at a Reno, NV, hospital for what was ultimately diagnosed as tuberculous meningitis and hydrocephalus. He was treated with medication (presumably, appropriate antibiotics) and, after approximately two weeks of treatment was discharged from the hospital. According to Mr. Rentnelli’s son, his father’s condition continued to deteriorate, and when he tried to reach one of his father’s physicians by telephone, he was only able to speak to one of the doctor’s staff members. It is not clear whether the physicians were unavailable or had refused to talk directly to him for some reason.
About 10 days after discharge, Mr. Rentnelli’s son testified that his father’s condition had deteriorated so significantly that he decided to seek new physicians and flew his father to a Santa Barbara, CA, hospital, where a physician placed a shunt to relieve his father’s hydrocephalus. According to the son, "immediately after this treatment, [his father] improved markedly."4 In addition, the son alleged that "[t]he Santa Barbara doctor told [him] that if he had not brought Rentnelli in when he did, Rentnelli might not have lived."5
With this information, Mr. Rentnelli and his family apparently believed that Mr. Rentnelli had not received proper care by the original physicians and they consulted Mr. Dutt. Mr. Dutt interviewed Mr. Rentnelli and his son and obtained the medical records from the physicians in Reno and Santa Barbara. Mr. Dutt then personally "reviewed the records and researched both medical literature on meningitis and hydrocephalus and legal authorities regarding malpractice actions."6 Based upon this "review," Mr. Dutt filed a malpractice action against the Reno physicians.
After filing the action, Mr. Dutt "continued his factual investigation and research."7 He learned about a medical review organization in Herndon, VA (the Medical Quality Foundation), and, in agreement with one of the physicians’ counsel, submitted the records to that foundation for evaluation. Mr. Dutt’s position at that time was that, if the foundation supported his claims, he would continue to prosecute the action; if not, he would dismiss it. The Medical Quality Foundation concluded that:
1. There was no damage due to the one-month interval between Mr. Rentnelli’s Reno admission and his shunt placement in Santa Barbara.
2. There was "no provable negligence apparent from the records."8
Dutt dismissed the action on Jan. 30, 1987, 13 months after filing the complaint.
The physicians subsequently sued Mr. Rentnelli and Mr. Dutt for malicious prosecution and abuse of process. The case against Mr. Rentnelli was dismissed by the court, but the case against Dutt was tried before a jury that returned a verdict in the amount of $40,000. Mr. Dutt appealed that judgment.
In its decision, the majority first reiterated the usual legal justifications for a cautious approach with regard to holding attorneys accountable for their losing cases:
- "There is a societal interest in providing an opportunity for peaceable redress for people who believe they have been wronged."
- "[A]ttorneys have the role of facilitating access to our judicial system."
- "If a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client’s interests must be paramount."
- "Any standard of probable cause [to bring a lawsuit] must insure [sic] that the attorney’s duty to his client to present his case vigorously in a manner as favorable to the client as the rules of law and professional ethics will permit is preserved."9
Editor’s note: Having set the stage with this preamble, would any reasonable reader require any further foreshadowing to know how the court ruled?
The court held that, because "Dutt had information from Rentnelli’s medical records, the description of events by Rentnelli and his son, John, and medical literature on meningitis and hydrocephalus," he acted reasonably in believing that a malpractice case existed and in filing the action against the physicians.10 Amazingly, in a massive conclusory leap, the court found that: "The very fact that Rentnelli’s condition continued to deteriorate after treatment by the Reno doctors but immediately improved after the Santa Barbara doctors’ treatment would lead a reasonable person to believe that the first doctors did not adequately treat Rentnelli’s ailments."11
Despite the fact that Mr. Dutt had not consulted a single medical expert, but rather had personally researched the medical literature on the treatment of meningitis and hydrocephalus, the court held that "a reasonable attorney would have believed that the action against the Reno doctors was legally tenable."12 This holding inconsistently establishes the court’s very minimal standard of what a "reasonable attorney" would believe, and its overinflated opinion as to the ability of the average attorney: capable of interpreting the medical literature pertaining to the medical management of meningitis and the surgical treatment of hydrocephalus. Clearly, this holding indicates that, at least in Nevada, a physician will have virtually no chance of prevailing in a malicious prosecution claim against a plaintiff’s attorney.
Having heard from the majority, including their version of "the facts," we will turn to the dissent’s view of the case in this 3-2 decision. The dissent began by pointing out that, if the situation were reversed (i.e., we were considering whether Mr. Dutt had committed malpractice under the standard that would apply to physicians), a judgment against him would surely be justified:
If we were reviewing a judgment against a member of the medical profession for medical malpractice on equivalent facts, there is little doubt that the judgment would be upheld. Consider the hypothetical physician who, after listening to the complaints of a patient, reaches a diagnosis in an area outside his or her area of expertise without even performing a meaningful medical evaluation. Moreover, the hypothetical physician disdains a consultation, forging ahead on the basis of an unconfirmed diagnosis derived almost entirely from the verbalized complaints of the patient. Finally, the uninformed physician performs unnecessary and unsuccessful surgery. Accountability for medical malpractice under those circumstances would be both predictable and justified.13That is, unfortunately, not the standard generally applied to attorneys in malicious prosecution cases.
The dissent pointed out several facts that were curiously missing from the majority’s recitation of "the facts." First, Mr. Dutt had filed his "thoroughly inadequate complaint" against numerous doctors and a hospital "two days before the effective date of a statute that would have required Dutt to file a complaint with a medical-legal screening panel."14 The majority had correctly pointed out that Mr. Dutt was not legally required to receive a medical review of the case before filing, but the dissent implied that it appeared that Mr. Dutt had rushed the filing of the case, without a medical review, in order to beat the tort reform provision (filing with a medical-screening panel) that might have doomed his complaint.
Second, this was the first medical malpractice complaint ever filed by Mr. Dutt. Of course, that does not, a priori, make his complaint deficient. It is, however, relevant in connection with the fact that he apparently neglected to seek or consider any outside consultation (e.g., a medical evaluation of the case).
Third, the dissent criticized the majority’s apparent gross overestimation of the intelligence and knowledge of an inexperienced attorney:
To conclude, as the majority obviously does, that a tyro in medical malpractice litigation can translate highly technical medical records and treatises into a reasoned determination of malpractice without even consulting a knowledgeable health care provider, let alone the physician who provided later care to the patient/client and who allegedly had knowledge of professional negligence by the treating physicians, is worrisome to the extreme.15
The dissent then listed the following factors, among others, that it considered were relevant and which supported the jury’s verdict against Mr. Dutt:
- Prior to filing the complaint, Mr. Dutt had assigned a law school graduate who worked for him to read the medical records and evaluate them with him.
- Mr. Dutt relied on the law school graduate’s opinions and recommendations as to what was in the medical records and how the records should be interpreted.
- Mr. Dutt contacted no physicians or medical experts of any kind prior to filing the complaint.
- Mr. Dutt did not even bother to contact the subsequent treating physicians.
- Mr. Dutt never had the medical records reviewed prior to filing the complaint to determine whether there was any evidence of medical malpractice.
- After receiving a letter from one of the defendant physicians, Mr. Dutt admitted in a letter to the physicians’ attorney that the letter had "caused him to look at the case much more critically."
- The Medical Quality Foundation, consulted by Mr. Dutt some nine months after the lawsuit was filed, concluded that there was "no provable negligence in this case."
- Mr. Dutt knew that the patient had failed to keep his follow-up appointments with the defendant physicians. [The significance of a patient’s failure to return as directed was discussed in the April 2000 ED Legal Letter.]
- Mr. Dutt misrepresented that one of the Santa Barbara physicians would support his claim when, in fact, he had never even bothered to talk to that physician.16 Then, even after all of those factors and events, including the Medical Quality Foundation’s opinion that there was no malpractice, Mr. Dutt still "attempted to exact a nuisance settlement out of [the physicians]."17
Editor’s note: While it might somehow have been reasonable for Mr. Dutt to file this suit, how could it be reasonable for him to persist with it for as long as he did?
Case No. 2: Spencer v. Burglass.18
In Spencer, the plaintiff physician, Rowena Spencer, MD, filed a countersuit against the defendant attorney, Harry Burglass, making various claims: embarrassment, discomfort, and lost time. In the underlying medical malpractice case, it had been alleged by a father that Dr. Spencer was negligent "in operating upon and damaging the body of [his] child."19 Dr. Spencer claimed that, at the malpractice trial, the defendant attorney had called only two witnesses. Both of his witnesses were doctors, and both testified favorably of her. In addition, she alleged that the hospital records produced at the trial also showed that four doctors had examined the child and found no "damage" to his body of any type.
Dr. Spencer claimed that Burglass had violated his duty by:
1. not consulting with his own physician witnesses, who ultimately testified at trial favorably to Dr. Spencer;
2. prosecuting a claim that was frivolous and which had "no basis in law or in fact"
3. failing to determine from competent medical authority the actual physical condition of the child and the proper procedures concerning the previous treatment of the child.20
The trial court had dismissed the case, and Dr. Spencer appealed. The Court of Appeals found that Dr. Spencer’s complaint "implied" malice on the part of attorney Burglass and, therefore, supported an action for malicious prosecution in addition to the various claims that were explicit in her complaint. As was discussed above, in order to prevail on a malicious prosecution claim, "malice" must be proven. The court defined "malice" in this situation as the bringing of a lawsuit "where the charge is made with knowledge that it is false or with a reckless disregard as to whether it is false or not."21
As to Mr. Burglass’ filing of the case, the court found that none of Dr. Spencer’s allegations, taken as true, would constitute malice on the part of Mr. Burglass. As was the case in Dutt, the court set an extremely low standard for acceptable conduct on the part of plaintiffs’ counsel. Stated another way, it made Dr. Spencer’s burden in even alleging (not necessarily proving) that Burglass’ conduct constituted at least "reckless disregard" as to the truth of the plaintiff’s claim extremely high. Since this case had been dismissed by the trial court on a summary judgment motion (i.e., before the case was tried or submitted to a jury), all that Dr. Spencer had to do was allege facts that, if true (and the court would be required at this stage to assume them to be true), would have constituted a valid claim. Whether she would actually be able to prove the allegations was not relevant at this stage.
The court found that Burglass’ failure to even interview the two witnesses he called at trial was merely "negligence or ineptitude," but not "reckless disregard" which is the level of intent required to prevail in a malicious prosecution case.22 The court commented that this negligence on the part of Burglass might support a legal malpractice complaint brought on behalf of his client, but would not support the malicious prosecution claim brought by Dr. Spencer.
At the time the original malpractice case was brought against Dr. Spencer, Louisiana did not require a malpractice plaintiff to consult with and receive a supportive opinion from a medical expert prior to filing a malpractice action. While other states had adopted requirements for, among other things, an affidavit of merit by a medical expert prior to filing a malpractice complaint, this was not the case in Louisiana and, therefore, Burglass’ failure to consult a medical expert was of no great significance in the malicious prosecution context. The court noted that: "If that [Burglass’ ineptitude] constitutes malice, the courtrooms are full of malicious attorneys. This we cannot accept."23
Editor’s note: Perhaps our readers could accept that proposition.
The court then went on to establish near-complete protection for attorneys from liability under a malicious prosecution claim. The court held that allowing malicious prosecution claims to proceed against attorneys in a civil case would "distort the role of an attorney."24 According to the court, it is actually the plaintiff who files the case and, therefore, only the plaintiff may be liable on a malicious prosecution claim: "[T]he notion that defendant as the attorney for the party in the malpractice case was guilty of malicious prosecution seems to distort the role of an attorney in any case. The suit was filed by the attorney only in a technical sense since he may have signed the petition, but it was in fact an action instigated and carried on by the plaintiff in that malpractice case himself."25
According to the court, the plaintiff was intent upon having a jury decide whether his child had been "damaged" and "[h]is attorney, the defendant herein, was simply the instrument through which he invoked the judicial determination."26 As a result, in order to bring a malicious prosecution case against Mr. Burglass, Dr. Spencer would have to make "some allegation which would support specific malice by [Burglass] motivating him to persuade his client to initiate and continue his malpractice case against the doctor," and no such allegation was made in Dr. Spencer’s complaint.27
Dr. Spencer also cited Burglass’ alleged breach of Canon 30 of the Canons of Professional Ethics as a basis for her claims against the attorney. Canon 30, as in effect at the time of the original medical malpractice suit, provided that: "The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong. . . . His appearance in Court shall be deemed equivalent to an assertion on his honor that in his opinion his client’s case is one proper for judicial determination."28 The court considered Mr. Burglass’ duty under Canon 30 at the time the suit was filed, as well as when it was eventually tried. As to the time the complaint was filed, the court held that Burglass did not breach his duty because he could not have been expected to know at that time that no convincing evidence in support of his case could be discovered or developed. True enough, one of the purposes of discovery is to allow development of a case. On the other hand, whether starting without a shred of evidence in support of your claim should be allowed is another matter. The court apparently felt that the mere unsupported allegation of the father that his son had been "damaged" constituted sufficient evidence for Mr. Burglass to file the claim.
The court then still had to excuse Mr. Burglass’ failure to dismiss the complaint when, at the time of trial, he still had no evidence to corroborate the father’s allegation of "damage." In fact, Mr. Burglass had apparently not even attempted to develop any such evidence. The court found an excuse for this potential violation of Canon 30 in Canon 42 which provided that:
The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause. *** If the client insists upon an unjust or immoral course in the conduct of his case . . . the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer. So also when a lawyer discovers that his client has no case and the client is determined to continue it; or even if the lawyer finds himself incapable of conducting the case effectively.29
The inclusion of the word "may" in Canon 42 was all that was necessary for the court to find that Mr. Burglass had no obligation to withdraw, even if he found the case to be "unjust" — the withdrawal provision was permissive, not mandatory.
The court, therefore, affirmed the trial court’s dismissal of Dr. Spencer’s complaint. In closing, the court repeated the classic justification for our legal system’s aversion to such countersuits: "Surely, in any case where a suit is filed by a defendant who was vindicated in a contested case against the attorney for the plaintiff, some consideration must be given to the chilling effect’ such an action might have on the basic right of a citizen to seek redress in court for what he considers to be a wrong."30
As was the case in Dutt, there was a dissenting opinion in the case. The dissent thought that there were really two separate issues:
1. Did Mr. Burglass’ filing of the complaint constitute malicious prosecution?
2. If not, did his trying of the case three years later constitute malicious prosecution?
In so doing, the dissent advocated essentially a "middle ground" approach. In answer to the first question, the dissent felt the answer should be "no": "One with even the least cause to call another to court must be able to do so in freedom, unmenaced by liability, in case one loses, for the other’s resultant damages (other than certain costs, which we routinely award). Because of the dominance of the policy of courts’ being open, the policy of liability for fault-caused damage cannot include taking another to court within its fault-concept, unless there is no arguable justification for having done so."31 According to the dissent, Dr. Spencer’s only remedy regarding the filing of the suit should be an award of "certain costs."
The dissent was of the opinion that the fact that Mr. Burglass had apparently rushed to file his complaint because the statute of limitations would have run eight days after the date of his filing was a reasonable excuse for his filing of such a deficient claim. According to the dissent, in such a case, in order for a lawyer to preserve a client’s claim, he or she "must be allowed to place some credence in the client’s assertion of facts supporting the claim . . ."32 In this case, "some credence" apparently meant "full credence."
As to trying the case three years after the filing of the complaint, the dissent was of the opinion that Dr. Spencer had stated a viable claim against Burglass. During those three years, the dissent felt that Burglass should have been able to inform himself of the facts of the case and would apparently have learned that there was no evidence of malpractice or even any physical damage to the child. Having learned this, he should have filed for dismissal or, at a minimum, withdrawn from his representation of the plaintiff.
Case No. 3: Wong v. Tabor.33
This countersuit resulted from an earlier malpractice suit involving Mrs. Privett. Mrs. Privett apparently entered the hospital to undergo an anterior cervical fusion that had been recommended for treatment of her headaches. Unfortunately, when she left the hospital, she was a quadriplegic. The Privetts first sought legal advice from attorney Glenn Tabor approximately one month before the statute of limitations for a malpractice claim would have expired.
Editor’s note: The Spencer case involved a similar statute of limitations issue.
Tabor apparently spoke with the Privetts, visited the hospital, spoke with hospital personnel, reviewed the medical records, and conducted legal research relevant to the case. Tabor was advised that Dr. Wong (the plaintiff in the malicious prosecution countersuit) had diagnosed Mrs. Privett’s problem as "one involving her vertebrae" and had referred her to the surgeon who performed the fusion, Dr. Kaufman.34 Tabor was also told by his client, Mr. Privett, that Dr. Wong had been present during his wife’s surgery. Tabor also claimed to be aware that Dr. Wong and Dr. Kaufman had previously jointly performed similar surgery on Mr. Privett. In actuality, in the case of Mrs. Privett’s surgery, Dr. Wong had not participated in the surgery.
In September 1974, Tabor filed suit against a number of physicians, including Dr. Wong, and the hospital. During the course of the litigation, several physicians were voluntarily dismissed from the case by Tabor, and settlements were paid by other defendants. In October 1975, after the Privetts, through their attorney, failed to answer interrogatories, Dr. Wong’s attorney requested that Tabor dismiss Dr. Wong from the case. Tabor did not respond; so, on March 9, 1976, Dr. Wong’s attorney moved for summary judgment as to Dr. Wong. Just prior to the hearing on the summary judgment motion, an attorney from Tabor’s office met with Dr. Wong’s attorney and advised him that there would be no objection to an entry of summary judgment in favor of Dr. Wong.
Dr. Wong subsequently brought suit for malicious prosecution against the Privetts and Tabor. The Privetts were dismissed from the suit and the claim against Tabor went to trial. Dr. Wong argued that Tabor should have been aware at the time he filed the complaint that Dr. Wong was not liable for any negligence. Alternatively, Dr. Wong argued that, even if there might have been probable cause for Tabor to have filed a claim against him, he should be liable for continuing the suit against Dr. Wong when he knew, or should have known, that Dr. Wong had not participated in the surgery.
The trial court dismissed Dr. Wong’s malicious prosecution claim on the ground that the prior proceeding (the malpractice case) had not terminated in Dr. Wong’s favor; according to the court, it had terminated on the basis of an "agreement" between the parties. As was discussed above, a necessary element of a malicious prosecution claim is that the underlying case must have terminated in favor of the individual bringing the malicious prosecution claim. The Court of Appeals found this to be error in that Tabor’s mere acquiescence to Dr. Wong’s motion for summary judgment did not constitute any sort of "settlement or agreement" that would negate a finding that the malpractice case had terminated in Dr. Wong’s favor.
Unfortunately for Dr. Wong, the Court of Appeals found an alternative ground on which it could affirm the trial court’s dismissal of his case. It held that "the evidence is insufficient to support a finding that Tabor lacked probable cause to initiate suit against Wong."35 As a result, the court affirmed the dismissal of Dr. Wong’s case on this alternative ground.
The court began its consideration of the probable cause issue by noting that "an attorney’s role is to facilitate access to our judicial system for any person seeking legal relief . . . [and] if a balance must be struck between the desire of an adversary to be free from unwarranted accusations and the need of the client for undivided loyalty, the client’s interests must be paramount."36 Having set that out as the operative premise, it takes little imagination to surmise what sort of standard the court was going to set for what would constitute "probable cause" for a plaintiff’s attorney to file a complaint.
The court half-heartedly apologized for the fact that innocent people suffer as the result of frivolous lawsuits: "We recognize that through an effort to protect every citizen’s free access to the courts, some innocent persons may suffer the publicity, expense, and other burdens of defending ill-founded lawsuits."37 However, the court was clearly much more concerned about the "chilling effect" any meaningful rule of attorney liability would have upon the legal system.38
The court did go so far as to acknowledge that "some citizens, by virtue of their occupation, status, etc., constitute a class of potential defendants such that they are constantly subject of the threat of suit if not actual and recurrent litigation."39 One might think the court was showing a little sympathy for Dr. Wong and other physicians victimized by frivolous lawsuits. Wrong. The first "class of potential defendants" they were worried about was not physicians, it was their fellow lawyers: "Indeed, we have been speaking of one such class in exploring the ramifications of the instant litigation upon lawyers . . ."40
The court then set forth the rule for malicious prosecution cases in Indiana. The standard would be an objective one, that is, one based upon whether a "reasonable attorney" would have brought the case. In answering the question as to what a "reasonable attorney" would do, the court did not suggest looking at what would be the accepted standard of practice in the community or the country. Rather, the court set the bar as low as possible: "The question is answered by determining that no competent and reasonable attorney familiar with the law of the forum would consider that the claim was worthy of litigation on the basis of the facts known by the attorney who instituted [the] suit."41
The court then applied its rule to the facts of the case and found that Dr. Wong had failed to prove that there was a lack of probable cause for Tabor to file a claim against the doctor. The court based this upon the following facts: Tabor believed he had a potential claim against Dr. Wong; and, because the statute of limitations was about to expire, Tabor had only 30 days to investigate prior to filing suit.
Editor’s note: The court first set forth an objective standard (what a reasonable attorney would have done) and then applied a subjective standard (what Tabor thought at the time) to excuse Tabor’s conduct. Once again we have a court excusing sloppy and incomplete investigative work by a plaintiff’s attorney because he was in a hurry because of the statute of limitations: "We cannot ignore that [Tabor] was under a time constraint in investigating the facts."42 Wouldn’t we all like the same consideration of the court when considering our ability to make perfect decisions at Friday night at 1 a.m. in a busy trauma center as we try to simultaneously take care of 12 patients, six of whom are critically ill!
Perhaps Tabor’s filing of the suit against Dr. Wong could somehow be seen as reasonable, but was it reasonable for him to fail to dismiss Dr. Wong after 18 months. The court found no harm in this because "lack of probable cause cannot be based upon a negligent failure to investigate thoroughly."43 So, the plaintiff’s attorney has essentially no obligation to investigate since a failure to do so would merely constitute negligence on his part and would not be actionable by the doctor. The court also excused Tabor’s failure to dismiss Dr. Wong because of the issue of his referral of Mrs. Privett to Dr. Kaufman, an issue that appears to have been a "nonissue" throughout the case. It certainly did not prevent Tabor from agreeing without objection to summary judgment for Dr. Wong.
I should probably reveal the last fact regarding Dr. Wong’s involvement in the case, a fact that I have been zealously guarding throughout this entire case summary: "As the medical records reveal, Wong did not participate in the surgery. His sole involvement in Mrs. Privett’s hospital care was in prescribing a laxative for her."44
Abuse of Process
The physician in Dutt also brought an abuse of process claim against attorney Dutt. Both the malicious prosecution and abuse of process claims were sent to the jury, and in its award of damages, the jury did not specify whether it had found attorney Dutt liable on only one of the claims or on both. In any case, what the jury thought was moot because the Nevada Supreme Court held that there was no justification for the imposition of liability on either claim.
Abuse of process is a claim that is related to, and often confused with, malicious prosecution. They are, however, different torts with different elements that must be proven by the plaintiff in order to prevail. That being said, they are similar in that medical malpractice countersuits brought under an abuse of process claim are no more successful (perhaps less successful) than those brought for malicious prosecution.
As is usual in a tort complaint, all potentially available claims are usually made. As a result, both malicious prosecution and abuse of process are often included in a malpractice countersuit complaint.
Abuse of process is a relatively uncommon tort that requires the proof of only two elements:
1. The defendant intentionally used some sort of court process (e.g., summons and complaint).
2. The process was used for some ulterior motive (i.e., a purpose other than that for which the process was designed).45
The focus of the cases is primarily on the second element. In the medical malpractice context, plaintiffs generally attempt to prove the second element by showing that the real purpose of the suit was not to compensate the plaintiff for real damages, but rather to extort a nuisance settlement out of the defendant physician.
Malicious prosecution claims are based upon the filing of a claim with malice and without probable cause. Abuse of process claims, on the other hand, are based on the use of court process that would be proper, except that it was used for an improper motive. The example of using court process to attempt to extort a nuisance settlement was provided above and is the most common example in the medical malpractice context. Another example would be the attachment of $50,000 worth of property to secure a $5,000 debt.
There are two important differences between malicious prosecution and abuse of process. Abuse of process claims do not require that the plaintiff show that the underlying claim was made without probable cause, just that it was made for an improper purpose. Second, it is not necessary that the plaintiff prove a favorable outcome in the underlying case. As a result, unlike a malicious prosecution claim, an abuse of process claim may be filed before the resolution of the underlying litigation. In some cases, the abuse of process claim is brought as a counterclaim in the original medical malpractice action. In that situation, each party will be both a plaintiff and defendant in the same case.
Case No. 4: Bull v. McCuskey, Jr.46
Lest the reader be misled into thinking that countersuits universally fail, I have included one of the rare winners. Emphasis is on "rare." In this case, an orthopedic surgeon, Dr. Charles McCuskey, brought an abuse of process claim against the attorney, Samuel Bull, who had filed a medical malpractice claim against him. Dr. McCuskey claimed that the complaint was filed for the improper purpose of attempting to coerce a nuisance settlement out of him. After trial, the jury awarded Dr. McCuskey $35,000 in compensatory damages and $50,000 in punitive damages.
The underlying malpractice case involved the care of Catherine Doucette, an 86-year-old woman who was admitted to St. Mary’s Hospital following an automobile accident. She had sustained multiple injuries in an automobile accident. These injuries included multiple orthopedic injuries — fractures of the left wrist, both patellas, and the right femur. Ms. Doucette also suffered from arteriosclerotic heart disease and senility. Dr. McCuskey was consulted to care for her orthopedic injuries and did so. Other physicians cared for her other problems.
Ms. Doucette remained in the hospital until August, when she was transferred from St. Mary’s Hospital to the Physicians’ Hospital for extended care. While there, it was uncontested that she developed decubiti on her hips and heels. Apparently because of this, her nephew, Milan Jeffers, who had been appointed her guardian, dismissed Dr. McCuskey and replaced him with Dr. Jack Sargent. After this substitution of physicians, Mr. Jeffers asked Dr. Sargent if there had been malpractice on the part of Dr. McCuskey and was "told that there was none."47
According to the court, the ultimate conclusion was that "her bed sores [had] resulted either from her refusal to follow directions, or her inability to do so, and were not traceable to any conduct of the doctor."48
In October 1974, Mr. Jeffers contacted Mr. Bull, and an action charging Dr. McCuskey with malpractice and the Physicians’ Hospital with negligence was filed. The basis for the lawsuit apparently consisted of Mr. Jeffers’ statement that the condition of his aunt had "greatly deteriorated" and photographs of the decubiti taken by Mr. Bull’s assistant. Before filing suit, the court noted that Mr. Bull:
1. did not examine nor obtain the records from either of the hospitals;
2. did not confer with any doctors;
3. failed to submit his client’s claim to a joint screening panel that had been established pursuant to an agreement between the county medical society and bar association.49
After filing suit, Mr. Bull did not take the deposition of Dr. McCuskey or any other doctor and did not retain, or attempt to retain, a medical expert for trial.
Shortly before trial, the claim against Physicians’ Hospital was settled for $750. Mr. Bull had demanded a like settlement from Dr. McCuskey, who refused to allow his malpractice insurance carrier to settle the case for any amount.
During trial, attorney Bull made the following statements regarding Dr. McCuskey:
- He is "incompetent, a fumble-fingered fellow, a liar, a scoundrel, a damned idiot."
- "[I]t will be a cold day in hell when I let that dum-dum take care of my mother."
- "He will lie under oath, steal an elderly woman’s redress, cheat if he can get away with it, and all that is left for him is to make a pact with the devil and murder those who would oppose him."50
Editor’s note: The obstacle to bringing a defamation case against the plaintiff or his or her attorney is discussed below.
Dr. McCuskey’s claim was that Mr. Bull had abused civil process (the malpractice summons and complaint) in a manner not proper in the regular conduct of the proceeding and for an ulterior purpose (to extort a nuisance settlement from the doctor).
The court held that Mr. Bull’s offer to settle the case for a minimal sum, "when considered in the light of this failure adequately to investigate before deciding to file suit and the total absence of essential expert evidence," supported the jury’s verdict for Dr. McCuskey on his abuse of process claim. The trial court’s judgment was affirmed.51
In the Dutt case, which was decided subsequent to Bull, the physician argued that, based upon Bull, his judgment should have been upheld on his abuse of process claim. Both of those cases were decided by the Nevada Supreme Court. In Dutt, the court distinguished its previous holding in Bull because, contrary to attorney Bull, attorney Dutt had:
1. "Examined all the medical records" (himself).
2. "Consulted medical and legal authorities" (himself).
3. "Made no formal demand for settlement" (the dissent disagreed with this conclusion).
4. Dismissed the complaint shortly after receiving the Medical Quality Foundation’s report" (over three months later and, according to the dissent, after attempting to "exact a nuisance settlement").
The rule in Nevada, as of Dutt, therefore, seems to be that, in order to prevail on an abuse of process claim, the plaintiff’s attorney must have done "absolutely nothing," not just close to nothing.
Negligence
Successful physician defendants have attempted to bring countersuits against plaintiff’s attorneys (not plaintiffs) on a negligence theory. This requires proof of essentially the same basis elements that are at issue in a medical malpractice claim: duty, breach of the standard of conduct, damages, and proximate causation. As the next case demonstrates, the insurmountable hurdle for the physician in bringing a countersuit under this theory is the lack of duty.
Case No. 5: Gasis v. Schwartz.52
The facts of the underlying malpractice claim are not provided in the case report. They are not, however, relevant to the court’s analysis and holding. The plaintiffs in the countersuit, Dr. Albert Gasis and the Gasis Orthopedic Clinic, were sued by Mr. and Mrs. Emmons, one of whom apparently was a former patient of Dr. Gasis.
The malpractice suit was brought by Stanley Schwartz, an extremely well-known and successful plaintiff’s attorney in Michigan. The countersuit was filed while the underlying medical malpractice case was yet unresolved and claims of malicious prosecution by the Emmons and negligence on the part of Mr. Schwartz were brought.
As was discussed above, one of the elements that must be proven to prevail in a malicious prosecution case is that the prior action upon which the complaint of malicious prosecution is based must have terminated favorably for the countersuit plaintiff, in this case Dr. Gasis. Since that action was not yet resolved, Dr. Gasis’ malicious prosecution claim against the Emmons was, on its face, deficient, and the court affirmed the trial court’s summary dismissal of this claim.
The court then turned its attention to the negligence claim brought against Mr. Schwartz. This claim had also been summarily dismissed by the trial court. The court stated the plaintiff’s theory on this claim as follows: The "[d]efendant attorneys . . . have a duty to adverse parties not to institute lawsuits without first undertaking a thorough investigation to determine whether the action is meritorious, and failure so to investigate constitutes actionable negligence vis-à-vis the adverse parties."53 The problem with this theory is obvious on its face: It requires a finding that the attorney has simultaneous duties to both his or her client and the adverse party.
The plaintiff’s malpractice attorney obviously does not have a direct duty (i.e., obligation of conduct) to the defendant in the medical malpractice case. Their relationship is quite the opposite: They are adversaries. Because there was no direct duty owed by the attorney to Dr. Gasis, the court then considered whether Dr. Gasis was somehow an intended beneficiary of the malpractice plaintiff. This is, of course, equally absurd as the plaintiff and defendant in the case are direct adversaries.
The court then reiterated the strong public policy of allowing free access to the courts (that is, for medical malpractice plaintiffs) and found that imposing any obligations on the medical malpractice attorney as to the defendant physician would subvert that policy. The court’s conclusion, therefore, was that the attorney could not be held negligent by Dr. Gasis because he owed no duty to the doctor not to pursue the case on behalf of his client.
Defamation
Physicians have attempted to bring countersuits against unsuccessful medical malpractice plaintiffs and their attorneys on defamation grounds. The following case illustrates the complete lack of success of such cases.
In order to prevail in a defamation case, a plaintiff must prove the following elements:
- The statement at issue must be "published" (i.e., communicated) by the defendant to someone other than the plaintiff. (Essentially, any other third person is sufficient).
- The statement at issue must be "defamatory" (i.e., of a type that would tend to lower plaintiff’s reputation or deter people from associating with plaintiff).
- Just as with a negligence claim, the defendant must have proximately caused plaintiff’s damages.
Damages must be shown.
- Falsity of the statement must be alleged in the complaint, but need not be proven (truth is a defense to a defamation claim).
Case No. 6: Wright v. Yurko.54
In this case, the physician, Dr. Benjamin Wright, had been sued because a patient to whom he had administered an epidural block for back pain developed retinal hemorrhages and subsequent impaired vision. A jury returned a verdict for Dr. Wright. Dr. Wright then filed a countersuit against the malpractice plaintiff, his attorney, Albert Yurko, and the plaintiff’s expert witness. Dr. Wright’s complaint included claims of malicious prosecution and defamation. We have discussed malicious prosecution at length above, so we need not consider that claim in this case.
Instead, we will focus on the defamation claim, but only briefly, as we can dispense with it as quickly as did the court. The case does not report exactly what it was that Yurko and his witness said that Dr. Wright considered defamatory. However, so long as the statements were related to the judicial proceedings, in a broad sense, it makes no difference. Florida, like most, if not all, jurisdictions, follows the rule that defamation, whether in the form of libel or slander, "committed in the course of judicial proceedings [is] not actionable."55
There is an absolute privilege to utter defamations in the course of a judicial proceeding, as long as there is some relevancy to the matters at issue in the judicial proceedings. The trial court’s dismissal of all the defamation claims in the case was, therefore, affirmed by the Court of Appeals.
Endnotes
1. Linda A. Sharp, JD. Annotation, Medical-Malpractice Countersuits, 61 A.L.R. 5th 307, § I.1a (1999).
2. W. Page Keeton, et al. Prosser and Keeton on the Law of Torts ("Prosser") §§ 119-120 (5th ed. 1984).
3. 111 Nev 567 (1995).
4. Id. at 570.
5. Id.
6. Id.
7. Id.
8. Id. at 571.
9. Id. at 573.
10. Id. at 574.
11. Id.
12. Id. at 574.
13. Id. at 577 (CJ Steffen dissenting).
14. Id.
15. Id. 578.
16. Id. 578-580.
17. Id. at 580.
18. 337 So. 2d 596 (La. Ct. App. 1976).
19. Id. at 598.
20. Id.
21. Id. at 599.
22. Id.
23. Id. at 600.
24. Id.
25. Id.
26. Id.
27. Id. at 600.
28. Id. (emphasis added).
29. Id. at 601.
30. Id.
31. Id. at 602 (J Redman dissenting).
32. Id. at 601.
33. 422 N.E.2d 1279 (Ind. Ct. App. 1981).
34. Id. at 1281.
35. Id. at 1282.
36. Id. at 1285-1286.
37. Id. at 1286.
38. Id.
39. Id at 1288.
40. Id. (emphasis added).
41. Id at 1288 (emphasis added).
42. Id. at 1289.
43. Id.
44. Id. at 1282.
45. Prosser, supra note 2 at § 121.
46. 96 Nev. 706; 615 P.2d 957 (1980).
47. Id. at 708.
48. Id.
49. Id.
50. Id. at 708-709.
51. Id. at 709.
52. 80 Mich. App. 600; 264 N.W.2d 76 (1978).
53 Id. at 602-603 (emphasis added).
54. 446 So. 2d 1162 (Fla. Dist. Ct. App. (1984).
55. Id. at 1164.
CME Questions
9. Termination of the prior malpractice case in favor of the physician defendant is required in order for that physician to later maintain a suit for:
a. malicious prosecution.
b. abuse of process.
c. both of the above.
d. none of the above.
10. Countersuits following medical malpractice litigation are:
a. rarely successful.
b. always successful so long as judgment was for the defendant in the malpractice case.
c. never successful.
d. none of the above.
11. To prevail on an abuse of process claim, the plaintiff must prove:
a. malice.
b. that the plaintiff in the malpractice case had an ulterior motive in his or her use of process.
c. successful termination of the underlying case.
d. all of the above.
12. In Dutt, the court justified its cautious approach toward malicious prosecution claims because:
a. society has an interest in providing an opportunity for peaceable redress of grievances in the courts (at least malpractice plaintiffs).
b. attorneys have a role of facilitating access to our judicial system.
c. an attorney’s duty of loyalty exceeds any right of the defendant to be free of unwarranted accusations.
d. all of the above.
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