The Law Offices of James J. Curry, Jr., LLM

Medical Malpractice Countersuits

What happens when a physician believes he or she has been sued unfairly? Does a physician have any recourse except to defend the suit successfully? What about the financial impact on the physician? What about the impact to the physician’s reputation? The emotional impact a lawsuit has on a physician?

Because the United States justice system is based on free access to the courts, plaintiffs can bring a malpractice lawsuit with absolutely no proof that the physician sued did anything wrong. The fact that the physician may win the suit does not erase the fact that the physician has been sued, has to defend the suit, and has to bear the brunt of any ramifications to his or her practice or insurance status as a result of the suit. The only option open to the physician other than defending the case successfully is to countersue the plaintiff.

A countersuit is not brought in the original action. Instead, they are brought after the conclusion of the original action. Countersuits in medical malpractice cases most often take the form of “malicious prosecution” actions. To establish a malicious prosecution case, the physician must show:

• that a suit was instituted against the physician without probable cause;

• that the suit was decided in favor of the physician by a judge or a jury;

• that the suit was instituted maliciously

• that the physician sustained damages as a result of the malicious prosecution

The biggest hurdle physicians face in bringing a malicious prosecution countersuit is proving that the suit was brought maliciously. A prosecution was malicious if it is brought with knowledge that it was false or with reckless disregard of whether it was false or not. It is generally held that a suit was brought maliciously if no reasonable attorney familiar with the subject matter of the law would have brought the suit.

Because of the difficulty of proof and the high costs associated with bringing malicious prosecution actions, most physicians who are sued do not bother. However, courts have been willing to enter large awards in favor of physicians who have been the subject of a malicious prosecution. In one case in which a court found in favor of a physician, the court reasoned that malicious prosecution actions are beneficial because the accusation of negligence in the exercise of one’s profession can produce mortification, humiliation, injury to the reputation, character and health, mental suffering, and general impairment of social and mercantile standing.