Feature Article

Medicine vs. Law: Medical Malpractice and Physician Countersuits

Kyle S. McCammon, DO

The Health Care Problem

Many changes in the health care system have occurred during the past decade. As a consequence of these changes, the patient-physician relationship has been disrupted and both patient and physician frustration and dissatisfaction have increased.(1-6) Surveys have documented an extensive dissatisfaction with the practice of medicine. The reasons behind this dissatisfaction are multifactorial and include concern with spiraling increases in overhead expenses coupled with eroding incomes, the threat of malpractice claims, and the extensive regulatory network and intrusion of third parties into the clinical decision-making process that has been labeled "the hassle factor."(6)

So, what has been created by the changes in the health care system: a system where today physicians are providers and patients are consumers; a system where an entitlement to necessary and appropriate care is often disputed; a system where a National Patients' Bill of Rights is open to subjective interpretation and uncertain enforceability(7); a system that frustrates and disenfranchises both patients and physicians; a system that has undermined the patient-physician relationship; a system that is devoid of any physicians' rights; a system that "dictates the purpose of our years of study, the condition of our work, our choice of patients, and our amount of earnings"(8); and finally, a system that adds fuel to the engine of litigation.(2)

The Medical Malpractice and Tort Law Problem

Although it is unclear what percentage of medical malpractice claims is unjustified, it is generally conceded that many of them are.(9) The problem lies in the difficulty in determining what constitutes a frivolous claim.(10,11) One measure of the frequency of baseless claims may be that only about 25 to 50 percent of all claims result in payment to the plaintiff. Even some of these successful cases may actually be frivolous, but they are settled by insurance companies because of their "nuisance value" on the perceived "costs" of non-settlement.(9)

Several factors are responsible for the current malpractice problem. Medical advances have increased the opportunity for physician error in a climate where negligence is often assumed if an outcome does not meet with expectations.(12) The strained patient-physician relationship has caused an erosion of patients' trust. The adversarial nature of the tort system is counterproductive to establishing a fair and efficient system. The economic motivation of insurers to settle claims quickly, coupled with the contingent fee system, provide incentives for plaintiffs and their attorneys to bring frivolous claims or to embellish valid ones. The fear of overly sympathetic jury verdicts also fosters the early settlement of cases for their nuisance value.(13)

Physicians subjected to medical malpractice suits, regardless of the outcome, are more likely to have experienced depression, anger, frustration, suicidal ideation, and excessive use of alcohol than non-sued physicians. Sued physicians are more likely to stop seeing certain groups of patients, to practice defensibly, to think about early retirement, and to discourage others from pursuing medicine as a career.(14)

A study of 8,231 closed malpractice cases evaluated the influence of standard of care on the resolution of the malpractice claims. Payment was made in 43 percent of the 8,321 cases. The investigation concluded that physician care was actually defensible in the majority of cases. Overall, 30 percent of all payments were made to plaintiffs despite non-negligent care, 16 percent of payments went to plaintiffs with equivocal cases, and only 51 percent of all payments went to plaintiffs who had actually suffered medical injury due to negligent care.(15)

Studies evaluating the influence of the severity of disability on the outcomes of medical malpractice claims reveal that the degree of patient injury affects the payment amount and that the severity of disability can predict the amount of payment to the plaintiff, regardless as to whether negligence occurred.(15,16)

A series of Harvard medical practice studies have evaluated adverse events and negligence related to malpractice claims and their outcomes.(11,16-18) The studies involved the review of the medical records of 30,195 patients. The incidence of adverse events was 3.7 percent. The incidence of negligence was 1.0 percent, accounting for 27.6 percent of the total adverse events.(11) Performance errors were the most common but the least likely to be attributed to negligence. Errors of omission (i.e., problems in diagnosis), though much less common, were more likely to be attributed to negligence.(16)

A total of 47 malpractice claims was identified among the 30,195 sampled patients. Overall, 17 percent of claims were related to adverse outcomes caused by negligence, 28 percent of claims were related to equivocal negligence, and 55 percent of claims were judged not to be related to negligent care. Actual malpractice claims occurred much less frequently than did injuries that resulted from negligent care, i.e., there was only a 2.8 percent chance an adverse event due to negligence resulted in a malpractice claim.(18)

Analysis of these malpractice cases after a settlement occurred revealed that the plaintiff received payment in 45 percent of cases. Only 24 percent of the total plaintiff payments were related to adverse events due to negligence.(17)

In the final analysis, it has been shown that medical malpractice claims are rarely made after patients are injured as a result of negligent care; that claims are frequent when no negligent injury occurs; and that the legal standard of medical negligence performs poorly in malpractice litigation.(17,18) Moreover, the fact that medical negligence most often does not "come to light" is no justification for the demoralization and punishment of doctors who are innocent of negligent care in an adversarial tort system.

Multiple proposals have been offered as solutions to the current tort system: a requirement for a certificate of merit from another physician in the same specialty before a malpractice case can be filed; limitations on awards for pain and suffering; elimination of the collateral source rule, which allows payments from other sources to be ignored; a cap on attorney contingency fees; shortening of relevant statutes of limitations; methods of recovery of legal fees by successful defendants; a requirement that alternative methods of dispute resolution precede court action; development of medical practice guidelines; improved internal monitoring and disciplining of physicians; and formation of administrative legal panels to decide professional liability and compensation.(3,13,19-21)

Certainly, a number of the proposed reforms would offer a more just system that would perform better at identifying and compensating injured patients while maintaining fairness to the physician, and thus restore credibility to the tort system while enhancing its service to society.(19-23)

Given the inequities of the medical liability system, one would think that the public would be supportive of tort reform designed to improve the frequency of justified compensation while protecting physicians' rights. Unfortunately, even though the public and physicians want the same outcome, i.e., a reduction in medical negligence and adverse outcomes and improved identification and compensation of injured patients, they are often at odds with one another.(24) This is because: 1) many people have been misled by attorney rhetoric designed to support and defend the unjust tort system; 2) much of society has a false belief that the current system protects victims' rights and that tort reform would limit victims' rights; and 3) many people fail to comprehend that most malpractice claims are not derived from adverse events due to negligence, and continue to incorrectly believe that ending medical malpractice will stop malpractice suits.(17)

The overriding fact that remains is that the current tort system does not work.(14,15,17,21-25) It is a system that lacks credibility and legitimacy as a means of obtaining civil justice. It is a system that does not adequately protect the rights of victims. In fact, the current system severely limits victims' rights by not adequately identifying and compensating victims (patients) of negligent care, and by punishing other victims (physicians) for delivering non-negligent care. It is a system that does not optimally deter substandard care or improve the quality of care. It is a system that impedes rather than enhances progress to improve medical malpractice prevention measures.

Perhaps the single most deterrent to tort reform is the Trial Lawyers Association and attorneys themselves. It is attorneys who benefit most from the current adversarial, inefficient, and expensive system in which half of the dollars awarded never find their way to the injured party. Therefore, attorneys have reason to fear any new system that would be fair to both patients and physicians and result in compensation for a larger proportion of injured patients in amounts that reflect each patient's actual economic loss.

However, in the public's perception, attorney rhetoric has contributed to a change in the focus of the question of tort reform to one of an emotional argument of "us" (i.e., the lawyer who supposedly represents justice and protects society) versus "them" (i.e., the physician who is alleged incompetent, uncaring, arrogant, and greedy). The effect of this argument serves three purposes: 1) it side-steps the issue of the inequities of tort law for patients and physicians as well as the overall negative impact that it has on the rest of society; 2) it fuels the incorrect argument that reform would limit the rights of patients who have been injured by negligent care; and 3) it serves to defend an unjust system.

Unfortunately, meaningful tort reform may not occur until attorneys recognize that they are a part of the problem as well.(2) In the meantime, many victims of medical negligence will continue to go unrecognized and many physicians will continue to be unjustly accused of negligence.

Physician Countersuits

The current medical malpractice and tort law problem begs the question that few have considered: What about the rights of physicians? The court states that all persons must have "free and unfettered access to the courts," and that "the importance of free access demands that this access be maintained even though occasionally some innocent person must suffer."(10) Therefore, physicians appear to have little, if any, legal recourse.(9,26)

In response, many physicians practice defensive medicine. In its positive form, defensive medicine may account for as much as 10 percent of total medical care costs.(22,27) Defensive medicine also costs society when it is seen in its negative form, i.e., as among doctors who have stopped delivering babies.(21) Other costs are those of large malpractice insurance premiums and of lost productivity.(14)

Some physicians have attempted to retaliate by bringing countersuits against malpractice plaintiffs and their attorneys who have "unjustly" brought suit.(9, 28) There are several different legal theories of recovery that physicians have attempted to argue in countersuits including: 1) malicious prosecution; 2) abuse of process; 3) negligence; 4) defamation; 5) infliction of emotional distress; 6) invasion of privacy; and 7) prima facie tort.

Malicious Prosecution

Malicious prosecution is the most frequent legal theory of recovery for physicians in countersuits. In order to prove malicious prosecution the plaintiff physician must show: 1) that the defendant instituted or caused to be instituted (or continued) a prior judicial proceeding against the plaintiff physician; 2) that the prosecution was instituted without probable cause; 3) that the defendant acted maliciously in instituting the action; 4) that the prosecution terminated in the plaintiff physician's favor; and 5) that the plaintiff physician was damaged by the action. In addition, some jurisdictions further require that the plaintiff physician prove a "special injury" such as arrest, seizure of property, or other injury that is different from the traditional incidents of defending a lawsuit.(9,10,12,13,26,28-30)

A lack of probable cause may arise from an intentional disregard of the facts or from failure to reasonably investigate the facts. However, the courts have ruled that probable cause is determined on the basis of the facts known to the attorney at the time the malpractice suit is filed and that lack of probable cause cannot be based solely upon an attorney's apparent failure to conduct prompt and thorough discovery.(29) Furthermore, the courts will usually consider the malpractice plaintiff's use of expert witness testimony as proof of probable cause.(12)

Malice which includes proof of an intentional or willful act that attempts to bring about a wrongful result, can be inferred by proving a lack of probable cause.(10,28,29)

A prior favorable termination of the malpractice action requires a judgment in favor of the physician or a voluntary dismissal of the case.(26,29)

The courts have not recognized the expense, annoyance, and inconvenience of defending a suit, or the loss of income, increase in malpractice insurance premiums or cancellation of insurance, damage to personal and professional reputation, or mental suffering as damages that satisfy the special injury requirement.(9,10,12,13,26,28,29)

To date, the courts have not held attorneys liable for malicious prosecution except in a few extreme cases.9 Even violation of the American Bar Association Rules of Professional Conduct which prohibits a lawyer from using "means that have no substantial purpose other than to embarrass, delay, or burden a third person" has not been upheld within the context of a malicious prosecution action.(13)

Abuse of Process

The essential elements for proof of abuse of process are: 1) the patient or attorney made improper and unauthorized use of the legal process; 2) the malpractice plaintiff had an ulterior motive in bringing the suit; and 3) the physician must incur damage as a result of the abuse of process. However, the courts have concluded that the institution of a baseless civil suit is not sufficient for the reason that "process" does not include a civil complaint and a summons to appear in court.(9,10-12,26,29,30)


Attempting to prove attorney negligence has been completely unsuccessful for physician countersuits because the courts have held that an attorney can be liable for professional negligence only to a client and that, "clearly, an adverse party is not an intended beneficiary."9 This analysis ignores the rule which prevents a lawyer from asserting a client's position unless there is a nonfrivolous basis for doing so, and the rule which provides that a lawyer shall withdraw from representation of a client if the representation will result in violation of the rules of professional conduct or other law.(13,26)


The legal theory of defamation has proven to be unsuccessful for physician countersuits due to the inability to overcome the doctrine of judicial privilege. This doctrine provides that statements made in judicial proceedings, including allegations made in the pleadings, will be immune from a defamation suit.(9,10,12,29,30)

Infliction of Emotional Distress

Infliction of emotional distress is unlikely to ever be argued successfully because the physician must prove that he was damaged by conduct "so extreme in degree and so outrageous in character that it goes beyond all possible bounds of decency."(9,10,29)

Invasion of Privacy

The advancement of an invasion of privacy theory involves an intrusion upon the plaintiff's solitude or seclusion, public disclosure of private facts, or publicity which places the physician in a false light in the public eye. This countersuit theory of recovery has proven unsuccessful to physicians because the courts have held that the judicial privilege rule will serve to defeat this action.(26,29)

Prima Facie Tort

The essential elements of prima facie tort are: 1) an intent on the part of the original plaintiff to injure the defendant; 2) a lack of justification; and 3) special damages.(9,10,26,29,30) Advancement of this argument has been unsuccessful for physician countersuits because the courts have viewed this theory as an attempt to present a defective action of malicious prosecution, stating "it would make little sense to hold that the plaintiff would not prevail under malicious prosecution having failed to establish certain essential elements, then without correcting any of the defects, apply a different name to it and permit the cause of action to stand."(12)

The Physician Countersuit Problem

It is extremely doubtful that any legal theory of recovery other than malicious prosecution will ever prove successful in physician countersuits because the pattern of the court decisions has been to refer the plaintiff back to the "appropriate" cause of action --- malicious prosecution. However, because the courts have made the threshold for establishing lack of probable cause so high that it becomes virtually impossible to prove, the catch-22 paradox of physician countersuits becomes painfully obvious, i.e., it is a "just cause" without subsequent action.(12)

Thus, the harsh reality of the current situation is that physician countersuits present little or no threat to malpractice plaintiffs or their attorneys. At present, the mere existence of the theory of recovery through a malicious prosecution action serves as nothing more than window dressing, designed to convey the false appearance of equal justice under the law.

Certainly, at least on a case by case basis, the policy against punishment of malpractice plaintiffs and their attorneys has been outweighed by its adverse effect on the wider community. Isn't it time for the courts to pose the question, "Should physicians be protected from baseless malpractice suits?"30 The law should provide a remedy for each and every wrong and there should be no legal right to harass another.(12) If the law will not punish such conduct, our tort system will continue to lack credibility and the courts will continue to harbor injustice.(19)

A middle position which would give physicians protection and yet not be so broad as to jeopardize the free access to the judicial process is obtainable under many of the current proposals for tort reform.(26)


1. Emanuel EJ, Brett AS. Managed Competition and the Patient-Physician Relationship. New Engl J Med 1993;329:879-882.
2. Todd JS. Reform of the Health Care System and Professional Liability. New Engl J Med 1993; 329:1733-1735.
3. Graetz MJ, Mashaw JL. Praise Reform and Start the Litigation? New Engl J Med 1993; 329:1735-1737.
4. Iglehart JK. Managed Competition. New Engl J Med 1993; 238:1208-1212.
5. Kassirer JP. Medicine at Center Stage. New Engl J Med 1993; 328:1268-1269.
6. Schroeder SA. The Troubled Profession: Is Medicine's Glass Half Full of Half Empty? Ann Intern Med 1992;116:583-592.
7. Annas GJ. A National Bill of Patients' Rights. New Engl J Med 1998;338:695-699.
8. Rand A. Atlas Shrugged. New York, NY: Random House, Inc; 1957:692.
9. Witlin LT. Countersuits by Medical Malpractice Defendants Against Attorneys. J Legal Med 1988;9:421-447.
10. Janzer JM. Countersuits to Legal and Medical Malpractice Actions: Any Chance of Success? Marquette Law Rev 1981;65:93-119.
11. Brennan TA, Leape LL, Laird NM, et al. Incidence of Adverse Events and Negligence in Hospitalized Patients. Results of the Harvard Medical Practice Study I. New Engl J Med 1991; 324:370-376.
12. Reuter SR. Physician Countersuits: A Catch-22: Univ San Francisco Law Rev 1980;14:203-237.
13. Sokol DJ. The Current Status of Medical Malpractice Countersuits. Am J Law Med 1985; 10:439-457.
14. Charles SC, Wilbert JR, Franke KJ. Sued and Nonsued Physicians' Self-Reported Reactions to Malpractice Litigation. Am J Psych 1985;142:437-440.
15. Taragin MI, Willett LR, Wilczek AP, Trout R, Carson JL. The Influence of Standard of Care and Severity of Injury on the Resolution of Medical Malpractice Claims. Ann Intern Med 1992;177:780-784.
16. Leape LL, Brennan TA, Laird N, et al. The Nature of Adverse Events in Hospitalized Patients. Results of the Harvard Medical Practice Study II. New Engl J Med 1991;324:377-384.
17. Brennan TA, Sox CM, Burstin HR. Relation Between Negligent Adverse Events and the Outcomes of Medical-Malpractice Litigation. New Engl J Med 1996;335:1963-1967.
18. Localio AR, Lawthers AG, Brennan TA, et al. Relation Between Malpractice Claims and Adverse Events Due to Negligence. Results of the Harvard Medical Practice Study III. New Engl J Med 1991;325:245-251.
19. Parker JD. Malicious Prosecution Liability of Plaintiff's Counsel for an Unwarranted Medical Malpractice Suit - New Developments in Physician Countersuits for Unfounded Medical Malpractice Claims. Northern Kentucky Law Rev 1980;7:265-286.
20. Simmons HE, Rhoades MM, Goldberg MA. Comprehensive Health Care Reform and Managed Competition. New Engl J Med 1992;327:1525-1528.
21. Bovbjerg RR. Medical Malpractice: Folklore, Facts, and the Future. Ann Intern Med 1992; 117:788-791.
22. A Proposal of the American College of Physicians: Universal Insurance for American Health Care. Ann Intern Med 1992;117:511-519.
23. Manuel BM. Professional Liability - A No-Fault Solution. New Engl J Med 1990;322:627-631.
24. Mirvis DM. Physicians' Autonomy - The Relation Between Public and Professional Expectations. New Engl J Med 1993;328:1346-1349.
25. Morse LJ. A Declaration of Independence for Health Care Reform. New Engl J Med 1993; 329:804-805.|
26. Greenbaum H. Physician Countersuits: A Cause Without Action. Pacific Law J 1981;12:745-762.
27. Piorkowski JD, Gibbs RF, Hirsh HL. Malpractice Liability, Risk Management, in Falk KH, Geisel EB, (eds) for the American College of Legal Medicine: Legal Medicine: Legal Dynamics of Legal Encounters, 2nd ed. St. Louis, MO: Mosby-Year Book, Inc, 1991:510-524.
28. Rawson J. Wong v. Tabor: The Latest Word in Physician-Attorney Countersuits. Valparaiso Univ Law Rev 1983;17:755-765.
29. Logan S. Physician Countersuits: An Eye for an Eye, A Tooth for a Tooth, Etc. Medical Trial Technique Quarterly 1985;32:153-163.
30. McCaman B, Hirsh HL. Physician Countersuits. Case & Comment 1980;85:39-42.

Dr. McCammon is an emergency medicine physician at United Hospital Center in Clarksburg, WV, a diplomate of the American Board of Emergency Medicine, and a fellow of the American Academy of Emergency Medicine and the American Academy of Family Physicians. His e-mail is kmccammon @prontomail.com.

Originally published in the Medical Sentinel 2000;5(3):92-95. Copyright ©2000 Association of American Physicians and Surgeons.