Countersuit is rarely good option for MDs
It can quickly backfire on physician defendant
Executive Summary
Physicians often wish to countersure a patient or plaintiff attorney if they think a frivolous lawsuit is filed, but this action is rarely a good option.
- Countersuits are unlikely to be successful.
- In rare cases, the court will pendlize the plaintiff for filing a frivolous case.
- Attorneys typically take cases only with a strong likelihood of return on investment.
When physicians feel they’re wrongly accused of malpractice, they sometimes think of countersuing the patient or plaintiff attorney.
This option is rarely a good one, according to Leonard Berlin, MD, FACR, professor of radiology at Rush University and University of Illinois, both in Chicago, and author of Malpractice Issues in Radiology.
"Your insurance company will appoint a defense lawyer and review the case. After investigating all aspects of the medical care rendered to the plaintiff-patient, if they feel there are no grounds for a suit, they will probably wind up having the suit dismissed," he says.
In 1975, Berlin was one of the first physicians to countersue, after being named in a suit involving a patient with an injured finger. "It was an absolutely absurd case, and the patient was looking for a fast settlement," he says. He sued the patient and the patient’s lawyer for filing a frivolous malpractice suit without any objective basis, which harmed Berlin’s reputation and increased his insurance premiums.1
After the case received national publicity, the plaintiff offered to drop the case if Berlin would do likewise, but he refused. The suit progressed to a jury trial with a verdict in Berlin’s favor. "Over the next year or two, about 100 countersuits were filed [by physicians sued for malpractice], in over a dozen states," says Berlin. His and virtually all other similar countersuits eventually were reversed on appeal.
"Countersuits today are extremely rare," says Berlin. One reason is that attorneys face significant expenses in taking on a malpractice lawsuit, says Berlin.
"Even on a minor malpractice case, they may pay over $50,000 out of their pocket, and if it goes to a jury trial it might be well over $200,000," he notes. "Plaintiff attorneys won’t take a case unless they really see a strong likelihood of ROI."
Because countersuits are unlikely to be successful and costly, it is better to allow the legal system to take its course, advises Berlin.
"If you are sued and you really feel that there is absolutely no basis, on rare, egregious situations, the court will penalize the plaintiff for filing a frivolous case," says Berlin. "But that is very rare. Also, the courts won’t even take a look at a countersuit until after the malpractice case is resolved, one way or another." (See related story, below, on scenarios where countersuit is an option.)
Mark L. Rosen, Esq, a partner at Lubell Rosen in Fort Lauderdale, FL, says there are several downsides to suing your own patient. "First of all, you have a lot more at risk than your patient. Any misstep can lead to disaster," he says. "One mad patient can create a public relations nightmare online." (For more information on this topic, see "Negative online review of MD? Keep legal risks top of mind," Physician Risk Management, May 2013, p. 121.)
An angry patient might retaliate by filing a complaint with the board of medicine. "It is very easy for a patient to do and will be expensive for the physician to respond," he says. "If the board of medicine agrees with your patient, you will be worse off."
The best step is to remove your emotions from the lawsuit and remember that lawsuits are business, not personal, says Rosen.
"If you are wrongfully accused, then vindicate yourself in court and move on," he says. "If the case is frivolous, it will be apparent during the underlying case, and the judge will knock the case out of court."
These situations might call for countersuit
Although Mark L. Rosen, Esq, a partner at Lubell Rosen in Fort Lauderdale, FL, almost never recommends countersuit to a physician client, he says there are a few exceptions. Here are some circumstances in which a physician can successfully countersue a patient and/or attorney:
• When the attorney is not following the rules.
"The physician’s attorney should be aware of circumstances where a plaintiff attorney has crossed the line," says Rosen. For example, the attorney is not allowed to talk directly to a represented physician instead of defense counsel.
"If the attorney stops by your office to intimidate you, then that attorney has broken the rules and may be sanctioned," says Rosen.
• When the lawsuit contains intentional factual inaccuracies.
"In most states, if a lawsuit is found to be frivolous, the patient and the attorney could be liable to reimburse your attorneys’ fees," says Rosen.
• If the patient or family engages in inappropriate conduct.
Rosen was involved in a case in which a patient died during surgery performed by one of his physician clients. The family of the deceased hired an attorney to investigate a potential negligence claim.
"In the interim, the family appeared at our client’s medical office and began to create a ruckus," says Rosen. "The family had a video camera and was warning patients in the waiting room of the dangers’ of our doctor."
Rosen’s firm sued the family to prevent them from trespassing in the physician’s office. "Later, when the case was being filed in court, our client was not included in the case," he says. "There was too much baggage created by the trespass case, and the plaintiff’s attorney wanted no part of it."
