EXECUTIVE SUMMARY
Malicious lawsuits can occur when the plaintiff has no legitimate basis to sue. Seeking recourse can be difficult for defendants.
- Beware of plaintiffs representing themselves or using an inexperienced lawyer.
- Some cases can be dismissed easily.
- Suing for legal expenses is possible, but recovery can be difficult.
Every lawsuit against a healthcare provider is costly and time-consuming, even if the defendant prevails in the end. But it is especially frustrating when it seems there was never any legitimacy to the action. Determining when a plaintiff’s actions constitute a malicious lawsuit can be difficult — and the recourse for the defendant may be limited.
Malicious lawsuits often are filed by people representing themselves because they cannot hire or afford a plaintiff attorney to represent them, says Janice L. Merrill, JD, shareholder with Marshall Dennehey in Orlando. In many cases, they could not retain counsel because they had no legitimate injury, even if there were deviations from the standard of care.
The plaintiffs also may be noncompliant with any state requirements for presuit screening or certification, Merrill says. Those lawsuits often can be dismissed quickly, although some plaintiffs will be tenacious and appeal multiple times.
“The other type that I see is the plaintiff’s lawyer who is dabbling in medical negligence claims. They’re really not familiar with the presuit requirements, or even the requirements to just bring a medical negligence claim because they’re very expensive to bring,” Merrill explains. “They may have the last resort after other experienced lawyers rejected the case, but when that happens, you tend to see someone who’s outside their comfort zone. They’re not having the claim reviewed by the appropriate experts, and you can dispose of those claims.”
In Florida, a statute gives the plaintiff the opportunity to withdraw the pleading when there is no merit. If the plaintiff does not withdraw it, the defendant can pursue a claim against both the attorney and the plaintiff for sanctions to recover attorneys’ fees, Merrill notes. The other option is to propose a settlement or offer of judgment.
“Sometimes, people do them for nominal amounts, like $100. If it’s not accepted, and you eventually get the case dismissed, you can pursue a claim for attorneys’ fees and costs. At that point, you can always bring them the malicious prosecution lawsuit,” Merrill explains. “It’s hard to do and generally expensive, and then you run up against the fact that the vast majority of people who bring claims are judgment-proof. You can get a judgment against them for $25,000 in fees and costs, but it can be very hard to collect.”
Concerns About Reprisal
Risk managers at The Doctors Company, a malpractice insurer based in Napa, CA, frequently receive inquiries from insured members concerned about the risks and ramifications posed by a disgruntled former patient for a perceived professional slight or other alleged indignation, including the possibility of a civil lawsuit filed in retaliation, says Richard F. Cahill, JD, vice president and associate general counsel. Given the heightened tensions and the apparently more confrontational or aggressive nature of the public since the advent of the pandemic, the concern of reprisal is justified.
For example, a review of the many online rating sites reveals an emerging trend by dissatisfied individuals to vent their complaints against commercial or retail organizations, including healthcare providers, publicly on social media, Cahill says. A significant percentage of the criticisms reported for medical issues lack any credible basis or represent a miscommunication. Retractions or removal of harmful claims rarely occur and may have a lasting adverse effect on a clinician.
Because of the statutory limitations imposed by federal and state privacy laws, providers are strongly discouraged from responding directly to such criticisms other than generically referencing an existing office policy, Cahill says. That policy can advise people who claim to have an issue with a particular physician to contact the practice to make an appointment during which the concern can be addressed in a confidential and professional manner, with the goal of reaching an amicable resolution.
“Otherwise, the clinician risks an investigation for improperly disclosing protected health information, which may result in possible civil and administrative penalties and sanctions, depending upon the findings and conclusions reached by OCR [Office for Civil Rights],” Cahill explains.
Another legitimate concern for healthcare providers relates to an increase in consumer complaints to state licensing boards involving the delivery of professional services. The accusations range from substantive objections to the nature of the care, to more procedural questions regarding billing, scheduling, and refusals to comply with what the patient requested in terms of care, treatment, and medication management.
“The grievance process with governmental entities is easy to initiate online and carries no punitive repercussions if the report is ultimately determined to be unfounded or even frivolous,” Cahill says. “The responsible state oversight agency investigates the charge, and in most incidents, the grievance is dismissed in favor of the practitioner, usually before an adversarial administrative hearing is commenced. However, both online social media accusations and reports to government watchdog groups are time-consuming, emotionally upsetting, potentially damaging to a practitioner’s reputation, and may negatively impact a clinician’s financial security or ability to keep and attract new patients and third-party payers.”
With increasing frequency, healthcare providers express anxiety about the prospect of litigation over professional liability in the event of a medical error or adverse event, or simply in retaliation for a perceived slight or involuntary patient termination, Cahill says. Statistically, most claims for medical malpractice are resolved in favor of the clinician with the payment of no indemnity.
Ordinarily, plaintiff attorneys pursue cases on a contingency fee basis rather than charging the client an hourly rate, Cahill notes. Additionally, professional liability cases are expensive to prosecute and invariably require the payment of substantial out-of-pocket costs, such as expert witness fees, charges associated with pretrial discovery, copying charges, and related expenditures.
Those amounts are rarely reimbursed absent a recovery for the client, Cahill says. Therefore, personal injury attorneys take case selection seriously and decline to represent an individual unless the chances of prevailing are significant and the number of damages likely to be recovered is consequential.
But Cahill notes that winning a lawsuit does not always leave defendants happy. “Not uncommonly, clinicians who ultimately prevail at the trial level are angry that they expended an enormous amount of energy, financial resources, and emotional capital and may want to seek redress against the patient for monetary damages,” he says. “Unfortunately, such cases are costly to pursue, are not usually covered by insurance, and are difficult to prove.”
Many jurisdictions recognize two types of punitive actions that providers who successfully defended a professional liability claim may wish to contemplate, Cahill says. First, a malicious prosecution claim may be available but requires the aggrieved provider to demonstrate there was no objective probable cause, that the plaintiff harbored subjective malice against the clinician in initiating the original lawsuit, and that the physician won. These types of cases may be defeated if the patient can establish the evidence sufficiently exhibited the elements of a legitimate claim were objectively present as established by independent expert testimony, or that the patient bore no malice or ill will and held a good faith belief in the validity of the claim.
A second cause of action is generically referred to as “abuse of process,” Cahill says. Although the nature and elements of a claim for this tort may vary by jurisdiction, abuse of process essentially involves the injured party proving the allegations were fabricated and the underlying suit was willfully pursued for an improper motive.
On rare occasions, healthcare providers may believe false statements made either online to social media services or to state licensing boards reporting a healthcare provider for unprofessional conduct or in civil litigation constitute libel or slander, Cahill says. As with these other possible remedies, defamation lawsuits are difficult to win — primarily because of free speech protections afforded by the First Amendment — are expensive to prosecute, and present substantial obstacles when trying to recover any damages awarded by the jury against an individual, noncorporate tortfeasor.
Hard to Recover Expenses
In Texas, the recourse for a groundless medical malpractice case are attorneys’ fees and expenses sought, says Christina C. Huston, JD, LLM, an attorney with Wilson Elser in Houston. In Texas, those fees and expenses “shall be” awarded for those cases filed without sufficient expert reports produced shortly after filing suit.
“While this statute had substantial teeth when first passed 20 years ago, the case law has slowly ground away at those teeth to the point that often times the report is the bare minimum of information checking the boxes of duty, breach, causation, and damages,” Huston explains. “Expert reports, in fact, now need only address one potential cause of action, and this need not be the act or omission that is ultimately submitted at trial.”
Huston defended one case in which the claim was part of a personal vendetta of a plaintiff’s counsel against a co-defendant. Relief was not granted for her client at the expert report stage by virtue of a plaintiff-friendly judge.
“Past this stage, there are no future avenues for return of defense costs until verdict, and only if triggered by a settlement offer specifically invoking a particular statute that allows for fees should the offer be declined, and then verdict is close to that offer,” Huston says.
Filing Against Everyone Possible
Although a patient may have suffered an injury, he or she may be unable to prove by the requisite testimony or evidence that compensation should be granted, says Christopher E. Brown, JD, partner with Kaufman Dolowich in Orlando. That does not make the lawsuit malicious, but it is not uncommon for a plaintiff to file suit against all parties involved in the individual’s care, regardless of whether the provider’s treatment had anything to do with the outcome. Those parties can believe they were unfairly dragged into the case and wish for recourse.
“Unfortunately, there isn’t a lot that can be done to thwart a malicious malpractice action. One avenue of defense is a malicious prosecution action brought by the defendant provider against the plaintiff,” Brown says. “This provides an avenue of redress for the maligned defendant who has been compelled to defend against a spurious claim. However, such an action can only be brought after dismissal of the original action in favor of the defendant.”
Additionally, such an action is difficult to prove because the provider must show the original claimant against whom the malicious prosecution action was filed instituted the claim without a reasonable belief in the viability, Brown says. This is especially difficult in states with medical malpractice presuit requirements, and the plaintiff has complied.
SOURCES
- Christopher E. Brown, JD, Partner, Kaufman Dolowich, Orlando. Phone: (407) 904-0919. Email: [email protected].
- Richard F. Cahill, JD, Vice President and Associate General Counsel, The Doctors Company, Napa, CA. Phone: (800) 421-2368.
- Christina C. Huston, JD, LLM, Wilson Elser, Houston. Phone: (713) 353-2008. Email: [email protected].
- Janice L. Merrill, JD, Shareholder, Marshall Dennehey, Orlando. Phone: (407) 420-4411. Email: [email protected].
Every lawsuit against a healthcare provider is costly and time-consuming, even if the defendant prevails in the end. But it is especially frustrating when it seems there was never any legitimacy to the action. Determining when a plaintiff’s actions constitute a malicious lawsuit can be difficult — and the recourse for the defendant may be limited.
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