What Can You Do about a Frivolous Lawsuit?

Fighting back is permitted, but difficult

Have you — or one of your colleagues — been named in a lawsuit that seems so frivolous that it could be the poster child for tort reform? If so, that doesn't change the fact that you may be in for a life-changing experience.

Even an unsuccessfully sued ED physician invests a tremendous amount of resources, and possibly endures some damage to his or her reputation, before emerging victorious. In light of this, is it possible for an unfairly sued ED physician to countersue for damages?

"While we should all be on the lookout for situations where countersuit is possible, there aren't many," according to Hugh F. Hill III, MD, JD, FACEP, FCLM, an assistant professor of emergency medicine at Johns Hopkins University School of Medicine in Baltimore.

"The business of courts is to settle controversies. If plaintiffs are discouraged from bringing cases by threats of countersuit, courts lose influence and power," Hill explains. "Policy favoring access to courts for potential litigants who consider themselves aggrieved is almost sacred."

Sanctions against plaintiffs' attorneys, says Hill, is more likely in "particularly egregious" cases. "The other distinction is practical: Does the plaintiff have assets?" he adds.

Only Extreme Cases

Most physicians named in a malpractice lawsuit typically go through a phase of denial immediately upon learning of the suit, says Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH.

"They believe they have done nothing wrong. They proceed to check medical records and follow up to convince themselves that the care they provided was to the standard of care," says Greenfelder.

The next phase is usually anger, both at the patient and the patient's attorney for bringing what to them seems like a frivolous lawsuit. "The physician wants to countersue for the damages this may cause to his or her reputation," says Greenfelder. "This urge to fight back is natural, but should be resisted except in the extreme case."

Most states, including Ohio, have rules and statutes that permit defendants to fight back if a frivolous lawsuit is filed against them. However, the standard for proving an action frivolous is typically very high.

"The case either needs to be legally or factually groundless, and brought for an ulterior purpose such as to cause harm to the physician," says Greenfelder. "This is typically difficult to prove early in a lawsuit."

Until the facts are known, experts are retained, and some depositions are completed, it will be nearly impossible to ascertain the motives of the plaintiff or the attorney. "Thus, threatening a countersuit immediately is not typically wise or warranted," says Greenfelder.

Move for Sanctions

If a plaintiff fails to obtain an expert opinion critical of the physician but does not dismiss the physician from the case, Greenfelder says this could be grounds to threaten bringing a motion for sanctions or a countersuit for abuse of process.

Years ago, Greenfelder defended a group of cardiothoracic surgeons who were sued for allegedly causing the death of a 40-year-old man who died during open heart surgery. The plaintiff sued every physician who was in the operating room that day. He obtained an expert opinion critical of only one of the surgeons, but refused to dismiss the others.

"We eventually asked the court to dismiss the other physicians, which it did," says Greenfelder. "Following the conclusion of the trial, in which the other surgeon was found not liable, we moved for sanctions against the plaintiff's attorney for not dismissing the other surgeons."

While the trial court denied the motion, an Ohio appeals court found that the motion should have been granted. "We negotiated a sizable settlement with the plaintiff's attorney in which he paid for the attorney's fees for defending those physicians from groundless claims," says Greenfelder.

However, the case was more the exception than the rule. Greenfelder was involved in another case in which a family physician was sued for malpractice but was dismissed because no expert was retained. The suit was re-filed and the doctor was again dismissed because no expert was retained.

A countersuit was filed for abuse of process against the patient and her attorney. "However, after a few months of discovery, we determined that our chances of prevailing were very slim, and [we] had no choice but to dismiss the case," says Greenfelder. "We found it very difficult to prove that either the patient or her attorney filed the malpractice cases for any ulterior purpose of harming the physician." Without this proof, the case could not be successful.

Is there Defamation?

If there are instances in which a patient or the patient's attorney are deliberately making false statements about a physician or a hospital, this could create a cause of action for defamation. "The allegations, however, would have to be factual in nature rather than opinion," says Greenfelder. "Simply saying that Dr. X is a bad doctor or Hospital Y is a bad hospital is not enough."

The statements would have to be directly related to some action of the physician or the hospital, that implied the physician was incompetent or something similar that is provably untrue.

"It is unlikely that an experienced plaintiff's attorney would say anything inflammatory in the media about a physician or permit his or her client to say such things," says Greenfelder. "However, it is not out of the realm of possibility, and should be considered as a negotiating point in a malpractice case."

Sources

For more information, contact:

• Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, 4518 Fulton Drive NW, Canton, OH 44718. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail: jgreenfelder@BDBLAW.com.

• Hugh F. Hill III, MD, JD, FACEP, FCLM, Assistant Professor of Emergency Medicine, The Johns Hopkins University, 1830 East Monument Street, Suite 6-100, Baltimore, MD 21287. E-mail: hhill@jhmi.edu.