Want to countersue? It's not that easy

October 11, 1999

I was recently a defendant in a malpractice suit that I felt was frivolous. A judge eventually dismissed the case, but for me the anguish and sleepless nights were awful. Can I countersue the greedy patient or the unscrupulous attorney who egged her on?

Q: I was recently a defendant in a malpractice suit that I feltwas frivolous. A judge eventually dismissed the case, but for me the anguishand sleepless nights were awful. Can I countersue the greedy patient orthe unscrupulous attorney who egged her on?

A: You can, but you're unlikely to win, and you'll probably causeyourself more anguish and sleepless nights. Many physicians who believethey've been unjustly accused of malpractice want to get even by suing thepatient or attorney. Though the anger is understandable, countersuits arevery difficult to win.

They're also expensive--and your professional liability insurer won'tpick up the tab. You'll have to shell out several thousand dollars to filea countersuit, and that's if you're able to find an attorney who's willingto sue a colleague--not an easy task.

In most states, you must meet several requirements before you can evenfile a countersuit. The malpractice suit must have been terminated in yourfavor, through summary judgment, dismissal, or a trial victory. Then, tohave any chance of winning in court, you'd have to prove that the case againstyou had been completely groundless or filed maliciously. The issue usuallycomes down to a matter of opinion, no matter how foolish you think the allegationsagainst you were.

Remember that the plaintiff was probably required, before she could filesuit, to have the expert opinion of another physician that you'd committedmalpractice. While such "hired gun" affidavits may be all tooeasy to purchase, the plaintiff's attorney can effectively argue that hefound the expert credible and therefore sued you in good faith.

To prevail in a countersuit, you'd also have to prove that you suffereddamages, such as lost income or attorney's fees. Humiliation, loss of reputation,or other intangibles are often too subjective to qualify as legal damages.You'd have to document that patients avoided your practice because of themalpractice suit.

Another obstacle: Many judges are openly critical of countersuits byphysicians. They believe that patients are entitled to their day in courtand shouldn't be punished for losing. Suing a failed plaintiff may strikea judge and jury as "piling on."

Still, physicians can win countersuits, especially if they showthat the patient or plaintiff's attorney acted with malice or blatant disregardof the truth. For example, a New Jersey patient claimed that her orthopedist'snegligence left her in too much pain to walk without crutches, or to engagein everyday activities such as shopping and gardening.

The physician knew the patient was faking. He hired a private investigator,who videotaped her running without difficulty to catch up with friends ata shopping mall. When the jury was shown the tape, the physician won themalpractice case. Local prosecutors declined to file perjury charges againstthe patient, so the physician sued her. After two years of negotiationsand depositions, he accepted a settlement of about $15,000, which barelycovered the legal expenses he had to pay.

If you're determined to countersue, be prepared for a long, uphill battle.Most attorneys would advise you to be grateful that you won the malpracticecase and to enjoy a respite from the legal system.

This department, prepared by the assistant vice president, risk management,Frontier HealthCare of White Plains, NY, answers common professional-liabilityquestions. It isn't intended to provide specific legal advice. If you havea question, please submit it to Malpractice Consult, Medical Economicsmagazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also faxyour question to 201-722-2688 or send it via e-mail to memalp@medec.com.

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