Should I countersue?
For truly frivolous claims, physicians have the legal right to sue for damages caused by the unfounded complaint.
Perhaps the most well-known case of a successful malpractice countersuit is that of Louisville neurosurgeon John Guarnaschelli, MD, who in 2000 won $72,000 in damages against a plaintiffs’ attorney for malicious prosecution.
The physician’s countersuit followed the dismissal of a negligence claim against Dr. Guarnaschelli by a patient who contracted meningitis. The plaintiffs’ attorney had made little effort to gather evidence to connect Dr. Guarnaschelli to the patient’s injuries and had consulted only one other physician, a client of his, before filing the lawsuit, according to a summary of the case in the American Bar Association Journal.
Malicious prosecution is the most common legal theory of recovery for physicians in countersuits, according to a review of successful countersuits by doctors. Dr. Stawicki is a coauthor of that review. Other legal theories that physicians can raise include abuse of process, negligence, defamation, invasion of privacy, and infliction of emotional distress. Of the 13 cases evaluated in the article by Dr. Stawicki and colleagues, damages awarded to physicians ranged from about $13,000 to $125,000.
Although some doctors have success, pursuing a counterclaim can be a difficult feat, said Benjamin Braslow, MD, a trauma surgeon and professor of clinical surgery at the University of Pennsylvania in Philadelphia.
“The main takeaways were it’s an uphill battle often met with not only resistance but diminishing returns to countersue,” said Dr. Braslow, a coauthor of the countersuits analysis. “You have to meet very specific criteria regarding leveling the suit, and it may end up being a costly, time-consuming battle.”
To prove malicious prosecution, for example, a physician must show that a claim was instituted without probable cause, that the suing party acted maliciously in instituting the action, and that the doctor was damaged by the action, among other essential elements.
As for Dr. G, the surgeon, he now has a contract with a consent-to-settle clause and has taken other legal precautions since his lawsuits. He requires that his patients sign an agreement that any negligence claims they levy go to arbitration. If an arbitrator finds in the patient’s favor, the case may proceed to court, he said. However, he requires another agreement such that if patients lose in court, they are responsible for his legal fees.
“I’m just more careful,” he said. “I ask all my staff in the office to use their judgment, however superficial, if they feel something is wrong with an individual to tell me so. I’d rather send them away than operate on them and have it result in a lawsuit.”
A version of this article originally appeared on Medscape.com.