Magazine article Medical Economics

Malpractice Consult

Magazine article Medical Economics

Malpractice Consult

Article excerpt

Want to countersue? It's not that easy

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?

A: You can, but you're unlikely to win, and you'll probably cause yourself more anguish and sleepless nights. Many physicians who believe they've been unjustly accused of malpractice want to get even by suing the patient or attorney. Though the anger is understandable, countersuits are very difficult to win.

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

In most states, you must meet several requirements before you can even file a countersuit. The malpractice suit must have been terminated in your favor, through summary judgment, dismissal, or a trial victory. Then, to have any chance of winning in court, you'd have to prove that the case against you had been completely groundless or filed maliciously. The issue usually comes down to a matter of opinion, no matter how foolish you think the allegations against you were.

Remember that the plaintiff was probably required, before she could file suit, to have the expert opinion of another physician that you'd committed malpractice. While such "hired gun" affidavits may be all too easy to purchase, the plaintiffs attorney can effectively argue that he found the expert credible and therefore sued you in good faith.

To prevail in a countersuit, you'd also have to prove that you suffered damages, such as lost income or attorney's fees. Humiliation, loss of reputation, or other intangibles are often too subjective to qualify as legal damages. …

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