Countersuits - Fact or Fiction

When confronted with a medical malpractice action, most physicians react with a combination of emotions which include both a sense of anxiety and anger. As the case wears on and the expense of time and money becomes apparent, frustration develops. The physician feels that there must be some way to compensate him for what he has been put through or at least deter plaintiffs' attorneys from taking cases which have little, if any, merit.

In response, defense attorneys have been active over the last several decades in attempting to fashion from existing law various causes of action that would allow the physician to strike back against his protagonist. These have been popularly termed countersuits. Unfortunately, the track record has not been admirable and, in fact, only a handful has been successful. This article is intended to provide the physician with an understanding of the various types of countersuits. Hopefully, with this basis, he can make an informed decision as to whether his own circumstance might legitimately fall within one of these categories so as to provide him relief.

Actions for Malicious Prosecution

Perhaps the most common remedy utilized by physicians in countersuing is the suit based on an allegation of malicious prosecution. These suits were originally developed in response to the filing of criminal actions. However, over the years they have seen expanded application into the civil arena. To succeed, the physician must prove the existence of several elements. These include the following:

1. That a judicial proceeding has commenced against the physician.
    
2. That the action has now terminated in favor of the physician.
    
3. That there was an absence of probable cause for the proceeding.
    
4. That there was malice on the part of those who prosecuted the action.
    
5. That damages resulted to the physician.

As noted, the first element is that a judicial proceeding has actually commenced against the physician. Under current statutes in Florida it is necessary for a plaintiff to file a ninety (90) day notice of intent prior to proceeding with a formal civil suit. Although no cases have been decided on this point, it would appear that such a commencement by notice of claim is not a formal judicial proceeding so as to satisfy element 1. In other words, this element would probably require the actual commencement of a civil suit.

The second element is that the civil suite has terminated in favor of the physician. Suits end in a number of ways. Often, they are voluntarily dismissed by the plaintiff when he discovers that he has insufficient grounds for proceeding. There is some controversy among different states as to whether this qualifies as a determination in favor of the physician. However, in Florida there is case law to the effect that it does not. In other words, the termination has to be on the merits of the case. This most often occurs when the physician obtains a judgment in his favor. The termination must also be final. If post-trial motions or appeals are pending, it is unlikely that a court will entertain a cause of action for malicious prosecution.

The next element is that the action was brought without probable cause. Either the plaintiff himself, his attorney, or both must have filed the action with an insufficient basis. Perhaps the clearest test of this element was provided in a recent Florida case as follows:

It is the attorney's reasonable and honest belief that his client has a tenable claim, that is the attorney's probable cause for representation, and not the attorney's conviction that his client must prevail. The attorney is not an insurer to his client's adversary that his client will win in litigation. Rather, he has a duty "to represent his client zealously... (seeking) any lawful, objective through legally permissible means... (and presenting) for adjudication any lawful claim, issue or defense." So long as the attorney does not abuse that duty by prosecuting a claim which a reasonable lawyer wou1d not regard as tenable or by unreasonably neglecting to investigate the facts and law in making his determination to proceed, his client's adversary has no right to assert malicious prosecution against the attorney if the lawyer's efforts prove unsuccessful.

One caveat with regard to this element is that if the plaintiff brings the case to be prosecuted as a result of the attorney's advice, he is shielded from a malicious prosecution action. The attorney, on the other hand, has no immunity if that case was unfounded. In addition to lack of probable cause, most courts, Florida among them, hold that there must be malice in the prosecution of the case. Malice is most often described as ill will or a reckless disregard of the rights of another. It is a matter of intent and as a result is often difficult to prove. However, in Florida it has been held that if there is a lack of probable cause the jury may infer that the action was brought maliciously. In other words, if the plaintiff or attorney has moved forward without probable cause, then a jury could conclude, based on that alone, that he did so with a reckless disregard for the rights of another.

The last element discussed above is damages. In some states these are restricted to damages other than one would normally expect in a civil action. Florida, however, seems to be following a more liberal rule which allows for any damage which would normally flow from the bringing of such a cause of action against the physician. These might include not only the cost of defense in the original action, but also damage to reputation.

Abuse of Process

Another cause of action attempted by physicians to perfect a counterclaim is the allegation that there has been an abuse of process. In essence, this is a misapplication of a suit by the original plaintiff for some purpose not warranted or intended by the law. It is a perversion of the legal system through the prosecution of an action. Unlike the count for malicious prosecution, it does not require that the original action has terminated in favor of the physician nor does it require there be a demonstration of 'probable cause or malice. It does require that the following be proved:

1. That the patient or his attorney has made improper and unauthorized use of the process;
    
2. That the patient or his attorney had an ulterior purpose in bringing the suit; and
    
3. That the physician has incurred damages.

In spite of what appears to be a more relaxed criteria, there have been even fewer successful suits based on this theory than malicious prosecution. An example of one that did succeed was decided recently in Nevada. There the court found that the lawsuit against the physician was filed for the purpose of extorting a nuisance settlement.