Course Authors
Maxwell J. Mehlman, J.D.
Prof. Mehlman reports no conflict of interest.
Estimated course time: 1 hour(s).
Albert Einstein College of Medicine – Montefiore Medical Center designates this enduring material activity for a maximum of 1.0 AMA PRA Category 1 Credit(s)™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.
In support of improving patient care, this activity has been planned and implemented by Albert Einstein College of Medicine-Montefiore Medical Center and InterMDnet. Albert Einstein College of Medicine – Montefiore Medical Center is jointly accredited by the Accreditation Council for Continuing Medical Education (ACCME), the Accreditation Council for Pharmacy Education (ACPE), and the American Nurses Credentialing Center (ANCC), to provide continuing education for the healthcare team.
Upon completion of this Cyberounds®, you should be able to:
Discuss the actions that might be taken to punish attorneys and patients who file frivolous lawsuits
Discuss the ethical and legal issues raised by such actions
Describe which actions are most likely to succeed.
Increasingly, clinicians who are angered and frustrated by the impact of the medical malpractice system on their lives are seeking ways to strike back at their tormenters. One approach is to get Congress or state legislatures to change the law. Clinicians and the professional groups to which they belong are pursuing other approaches, which are described and evaluated in this Cyberounds®.
Sanctioning Attorneys Who File Frivolous Lawsuits
The rules that govern the practice of law provide that when an attorney files a lawsuit, the attorney is certifying that, to the best of the attorney's knowledge and belief, the plaintiff's claim has merit. This principle is reflected in Rule 11 of the Federal Rules of Civil Procedure and in comparable rules for state courts. It also is embodied in codes of ethics enforced by state bar associations.
Section b of Rule 11 states:
By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, --
- it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
- the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
- the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
- the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Section 11(c) authorizes a judge to sanction a lawyer who violates this rule. The sanction can include monetary penalties, such as requiring the attorney to compensate the defendant for lost income and to pay the defendant's legal costs.
A state bar association can sanction a lawyer for ethics violations. One provision of the American Bar Association's Code of Professional Responsibility, for example, states that "a lawyer is not justified in asserting a position in litigation that is frivolous" (Ethical Consideration 7-4). A lawyer who violates this prohibition could be suspended or barred from practice.
Nevertheless, judges have rarely imposed Rule 11 sanctions on lawyers for bringing medical malpractice cases. Nor have bar associations sanctioned members for this. There are a couple of possible explanations. One is that judges and members of bar associations are lawyers, and they do not like to punish one of their own any more than a clinician wants to accuse a colleague of malpractice. Another explanation has to do with the fuzziness of the concept of frivolousness. Clearly a claim is not frivolous just because it is ultimately unsuccessful. According to the relevant portions of Rule 11, a frivolous suit would be one in which the plaintiff's attorney filed the suit despite believing that the client's claim could not be supported by the evidence. This is a pretty tough test to satisfy, since the attorney can argue that it was only later, during the discovery process, that the lack of evidentiary support became clear.
The case of Quiroli v. Lieber [1994(U.S. Dist. LEXIS 4935 (E.D. Pa. 1994)], is illustratrative. The plaintiff sued clinicians following surgery. Her attorney dropped the suit after he read his expert's report and became convinced that his client did not have a valid cause of action. One of the clinicians, Dr. Lieber, filed a motion to have the court sanction the attorney under Rule 11. The judge agreed that the plaintiff's attorney had acted improperly:
Mr. Bellucci could have and should have made more thorough inquiries prior to filing a complaint in this action. He sent a claim letter notifying Dr. Lieber of the potential action on March 24, 1992, yet he did not file a complaint until November 9, 1992. Although the statute of limitations expired on November 12, 1992, it is specious for Mr. Bellucci to argue that he did not have time for an expert to review the case prior to filing a complaint. Mr. Bellucci did review medical records prior to filing the complaint. The Court cautions Mr. Bellucci to make more thorough inquiries prior to filing a complaint in the future.
But the judge declined to sanction the attorney under Rule 11, holding that the attorney's actions were neither sufficiently unreasonable nor in bad faith.
A third reason why few lawyers may be sanctioned may be that, contrary to popular belief, they do not actually file many frivolous malpractice cases. Before you hurl nasty epithets at your Cyberounds® Moderator, let me explain why this might be so. Plaintiffs' lawyers take cases on a contingency basis. If they don't succeed in obtaining money for a client, they not only don't get paid but they invariably lose money that they have to shell out for expert consultation fees and other litigation expenses. A lawyer, therefore, has no incentive to file a lawsuit that has little or no chance of winning.
There are two exceptions. One is the so-called "strike suit" - a lawsuit filed without the intention of proceeding to trial, but merely to extract a monetary settlement from the defendant. The defendant - or in the case of a medical malpractice case, typically the defendant's malpractice insurance company - settles the case for what it calculates is less than what it would cost to defend the suit, even if the defense were ultimately successful. Clinicians believe that lawyers file numerous strike suits against them, but little data are available to prove whether or not this belief is correct.
An example of what can probably be considered a strike suit is the case of Byrne v. Nezhat [261 F.3d 1075 (11th Cir. 2001)]. A lawyer filed a medical malpractice action arising out of an allegedly botched appendectomy. In filing the case, the lawyer did not investigate the facts but relied on an account provided by a previous lawyer who was not allowed to represent the patient because he had been sanctioned in other cases; the lawyer who filed the case also used a complaint prepared by the other lawyer, which contained a number of frivolous counts, including racketeering and mail fraud, that had been thrown in just to frighten the defendants into settling the case. The federal appellate court upheld the trial judge's imposition of sanctions on the attorney.
The second situation in which a lawyer might have an incentive to file what turns out to be a non-meritorious complaint in a malpractice action despite being paid on a contingent-fee basis is the "shotgun" suit. In the "shotgun," the lawyer sues a number of individuals and entities, including some who turn out to have no relevant contact with the patient. The non-involved clinician eventually gets dropped from the suit, but only after going through a considerable ordeal, which may include increases in malpractice insurance premiums and problems with privileging and credentialing.
Lawyers may file such suits in the hopes that some of the clinicians will settle the case just to be left alone. If this can be proven, sanctions against the attorney would be called for. But another reason the lawyer may name parties in the complaint who are later dropped is that the lawyer only has a limited amount of time " set by so-called statutes of limitations " in which to file a malpractice action, and there may not be enough time before the statutory deadline to sort out the actual involvement of everyone who might conceivably be liable. This problem is being exacerbated by malpractice reform measures that shorten state statutes of limitations.
Whether or not lawyers who file shotgun suits have a legitimate reason for doing so, the practice has spurred clinicians to fight back. Although there are no reported instances in which judges or bar associations have sanctioned lawyers for filing shotgun medical malpractice suits, the Mississippi Medical Society has filed formal complaints with the state bar association in connection with five shotgun cases.
Filing Countersuits
Defendants in non-meritorious lawsuits can incur significant expenses. Though a clinician's legal expenses are usually covered by malpractice insurance, the insurance company may cancel the policy or increase the premium even if the suit ultimately is unsuccessful. Then there are the uninsured expenses - potential problems with licensing and credentialing, time away from practice, emotional wear-and-tear, and the possibility of losing patients. Accordingly, clinicians might be interested in recouping these losses from the other side - typically, the other side's attorney -- by filing a countersuit.
Historically, this has not been a very practical option. Ordinary malpractice insurance does not cover the cost of a countersuit, and it may be hard to find a lawyer willing to take the case. If a lawyer does agree to file the suit, he or she may be unwilling to take the case on a contingency basis, so the legal fees can be steep. In addition, countersuits take time and are likely to be aggravating, thereby prolonging the stress and the disruption of the clinician's life caused by the original malpractice suit.
To reduce some of these disincentives, the Ohio State Medical Association (OSMA) has formed a "Frivolous Lawsuit Committee" with the intention of helping clinicians who are eventually dismissed from shotgun suits to file countersuits against the plaintiffs' lawyers. The committee already is participating in one countersuit, brought by physician Victoria Ruff, who was named as a defendant along with 22 others in a malpractice suit brought by the family of a patient whom she saw briefly as he was "coding" - i.e., going into cardiac arrest or respiratory failure. Seventeen months later, Ruff was finally dropped from the case, but not before her malpractice insurance was cancelled and she had to pay more for replacement insurance. In addition, a company called Medical Justice sells insurance to clinicians covering the costs of countersuits. According to a March, 2004, article in the Wall Street Journal, the company claims to have 500 policyholders in 30 states. Premiums range from $625 to $1800 per year depending on medical specialty and location. The company has a web site: www.medicaljustice.com.
Another problem with countersuits is that it is difficult to win them. There are a number of legal theories that might be used in an effort to make the plaintiff's attorney liable, but some of them are virtually impossible to prove. A defamation action won't work because the so-called doctrine of judicial privilege provides attorneys with absolute immunity for their actions or utterances in the course of litigation. To win a suit for abuse of process or abusive litigation, the clinician would have to show that the attorney had an improper purpose in bringing the original suit, and the courts have ruled that even filing a suit for the primary objective of provoking a settlement is not an improper purpose.
However, a clinician did win a countersuit for abuse of process in Criep v. Sentry Insurance [49 F. Supp.2d 954 (S.D. Tex. 1999)]. After a man was injured at work, he allegedly suffered further injuries due to negligence at the hospital involving a fall out of bed. The employer's workers compensation insurer, Sentry, sued, among others, Dr. Criep, a physician who was on call and had prepared the patient for surgery following the fall. Evidence showed that Sentry did not think it could win against Criep, but sued him in order to pressure him into testifying against his co-defendants in return for dropping him from the case. The court held that this was an abuse of process and awarded Criep's malpractice insurer its attorney's fees, which amounted to over $18,000, and Criep himself damages of more than $100,000.
Another legal theory is malicious prosecution. This, too, is hard to prove. The clinician has to show that the attorney (or patient) acted with "malice," a legal term that is defined differently in different states, but generally means that the actor acted without a proper motive in bringing suit. An attorney would have had an improper motive if he or she had known that the suit could not be won when it was filed, but the attorney simply can argue that the lack of merit did not become clear until the discovery process was complete, making the attorney liable only if he or she unreasonably prolonged the litigation after the completion of discovery. (The courts also have ruled that the fact that the attorney did not expeditiously complete discovery does not show malice.) Despite these difficulties, a surgeon named Guarnaschelli reportedly won a malicious prosecution countersuit in 2000 in Kentucky, receiving $72,000 in damages.
In winning his countersuit, Dr. Criep, mentioned above, not only relied on a theory of abuse of process but another approach - intentional infliction of emotional distress. In order to prevail on this theory, the clinician has to show that the filing of the original suit was outrageous and beyond all bounds of decency. Some courts also require the victim to have sustained severe emotional distress. Dr. Criep convinced the court that Sentry's reason for filing the suit - to pressure him into testifying against co-defendants - was extreme and outrageous, and he introduced expert testimony that, as a result of being sued, he suffered from an adjustment disorder with chronic stress, a DSM-IV diagnosis.
Medical Justice, the company mentioned earlier that sells countersuit insurance, recommends that its members have patients sign a pledge not to sue them for frivolous reasons. The idea is not only to discourage patients from suing, but to give a clinician who is named in a frivolous suit the ability to countersue the patient for breach of contract. But courts are extremely reluctant to enforce an agreement in which a patient promises not to sue a clinician for malpractice. The clinician could argue that it was only frivolous suits that the patient had agreed not to bring, but the uncertainty surrounding what is and is not "frivolous" makes it unlikely that the courts would allow a breach of contract action to succeed.
Refusing to Treat
In the early 1980's, clinicians in Los Angeles could call an 800 number and see if a person who was seeking to become a patient was listed as a person who sued doctors. More recently, a radiologist in Texas started www.doctorsknowus.com, a website that listed malpractice plaintiffs, plaintiff's attorneys, and plaintiff's expert witnesses. For $4.95 a month, subscribing clinicians could search up to 250 names to see if they were on the list. After operating for five months, the site was shut down in March 2004, after complaints from consumer groups. A similar website in Florida, www.medicalexpertreport.com, appears to be up and running.
At the June 2004 meeting of the American Medical Association, a South Carolina surgeon introduced a resolution to allow clinicians to refuse to treat trial lawyers and their spouses except in an emergency. The proposal was dropped before it came to a vote. But according to an article in the San Diego Union-Tribune (June 16, 2004), a neurosurgeon in New Hampshire refused to perform elective surgery on the president of the state trial lawyers association and a plastic surgeon in Mississippi refused to treat the daughter of a state legislator who opposed malpractice reforms.
Arguably it is a natural reaction to malpractice attacks to refuse to treat the attackers. But this tactic raises both ethical and legal issues. The AMA Code of Medical Ethics states that "physicians are free to choose whom they will serve." (E-8.11). Nevertheless, many clinicians believe that it is unethical to refuse to treat people merely because they are attorneys. Another argument might be that it is justifiable to refuse to treat someone whose past or potential future behavior would interfere with the clinician's ability to provide adequate care. For example, what if a patient threatens to sue a physician if the physician makes a mistake?
How would you react? Do you think that it is appropriate to refuse to treat someone because he or she has sued physicians in the past?
The risk is that clinicians who refuse to treat people may be setting themselves up for legal trouble.
One problem is that a primary care physician in a managed care network is likely to have relinquished the freedom to pick and choose patients, agreeing instead to accept any plan member who signs up so long as the physician's practice remains open. Refusing to take on a patient would be a breach of the agreement with the plan, subjecting the physician to termination from the network.
Another problem is that, although a clinician may be free to decide whether to accept someone as a patient, once the clinician agrees to accept a person as a patient, the clinician can terminate the relationship only after giving the person notice and a reasonable opportunity to obtain care elsewhere. The problem is exacerbated by the fact that it may not always be easy to tell whether, or when, a patient-physician relationship has been formed.
In Scripps Clinic v. Superior Court of San Diego County [134 Cal. Rptr.2d 101 (Cal. App. 2003)], a court refused to dismiss a complaint by a patient against the Scripps Clinic, a medical group, asserting that it had interfered with contractual relations, negligently inflicted emotional distress, and breached its fiduciary duty to her when it transferred her to another group after she sued two Scripps physicians. The patient alleged that, as a result of the transfer, she had had to cancel an appointment with her Scripps gynecologist even though she was still in severe pain and bleeding from endometriosis, and had had to see a new primary care physician to obtain authorization to see a new gynecologist, which took two weeks.
Outing Accusers
A number of states require that, before a medical malpractice case can be filed, the plaintiff's attorney must consult a physician who agrees that the case has merit. Most of these jurisdictions require the physician to submit a sworn affidavit of merit that becomes available to the defendant. But some states, including New York and Illinois, permit the physician to remain anonymous. In Sullivan v. DeJong, an emergency room physician sued to learn the identity of the physician who had signed the affidavit of merit in a malpractice case that was subsequently dropped. The Illinois appellate court rejected the physician's physician's claim because he failed to show that the affiant had acted in "bad faith." (The court also refused to "publish" its opinion, meaning that it has no value as precedent for the future; if the issue comes up again, the parties will have to litigate it from scratch.)
Sanctioning Expert Witnesses
One of the latest rounds in the battle against unfounded malpractice cases is for state licensing boards and medical societies to sanction plaintiffs' medical experts on the ground that their opinions were so unfounded that they amounted to unprofessional conduct.
State boards and medical societies acknowledge that they have no business delving into clinician's private lives; their only legitimate concern is the manner in which clinicians practice their profession. A threshold question, therefore, is whether serving as a medical expert is professional practice or an avocation. A review of this issue can be found in an article by attorney Russell M. Pelton, who is legal counsel to the board of the American Association of Neurological Surgeons, in Annals of Health Law [13 Annals Health L. 549 (2004)]. He cites a 1997 survey of state medical boards [Douglas R. Eitel, Robert J. Hegeman, Eric R. Evans, Medicine on Trial: Physicians' Attitudes About Expert Medical Witnesses, 18 J. Legal Med. 345, 350 (1997)] that found that of the 32 boards that responded, only six reported disciplining a physician for fraudulent expert testimony, and only eight regarded an expert to be engaged in the practice of medicine.
In addition, a Missouri appellate court in 1991 ruled that testifying as an expert did not constitute the practice of medicine and, therefore, a physician could not be disciplined by the state medical board for testifying falsely (Board of Registration for Healing Arts v. Levine, 808 S.W.2d 440 (Mo. Ct. App. 1991)). (The false testimony had to do with the expert's qualifications; he testified once that he had passed his otolaryngology boards on his second attempt and another time that he had passed them on his fourth attempt, but in fact he had passed them on his fifth attempt.)
However, both the AMA and the American Association of Neurological Surgeons (AANS) have declared that serving as an expert witness does constitute the practice of medicine, and that, therefore, they have the authority to sanction members who testify in an unprofessional manner. Moreover, at its April 2004 annual meeting, the Federation of State Medical Boards adopted a resolution that false, fraudulent or deceptive testimony given by a medical professional while serving as an expert witness should constitute unprofessional conduct, as defined in state licensure acts.
The AANS and the Florida Medical Association appear to be in the forefront of medical society efforts to sanction expert witnesses, although other organizations, such as the American Society of Anesthesiologists, are beginning to follow suit. The AANS program is described in the Pelton article, cited above. In December 2003, the AANS board of directors adopted Rule VII of its Rules and Regulations, which can be found at www.aans.org. According to Pelton, during the past 20 years, eight neurosurgeons have received letters of censure from the AANS, 11 have had their membership suspended, and one has been expelled for unprofessional conduct while testifying as an expert.
One suspended neurosurgeon, Donald Austin, sued the AANS in federal court claiming that his suspension violated public policy because the association only sanctions members who testify on behalf of plaintiffs. The trial court dismissed the complaint, and the U.S. Court of Appeals for the Seventh Circuit affirmed the dismissal in an opinion written by Judge Richard Posner [Austin v. AANS, 253 F.2d 967 (7th Cir. 2001)]. Posner commended the AANS for its rule regarding expert testimony, calling it "sensible-seeming" for the rule to require that members serving as experts testify "pruduently," that they must identify personal opinions that are not generally accepted by other neurosurgeons, and that they should provide the court with "accurate and documentable opinions on the matter at hand" (253 F.2d at 971). Responding to Austin's complaint that the AANS only targeted plaintiffs' experts, Posner said that, while that had been true to date, "the reason is at once obvious and innocent:"
If a member of the Association is sued for malpractice and another member gives testimony for the plaintiff that the defendant believes is irresponsible, it is natural for the defendant to complain to the Association; a fellow member has irresponsibly labeled him negligent. If a member of the Association who testifies for a plaintiff happens to believe that the defendant's expert witness was irresponsible, he is much less likely to complain, because that expert (and fellow member of the Association) has not accused him of negligence or harmed him in his practice or forced him to stand trial or gotten him into trouble with his liability insurer (253 F.2d at 972).
In June 2004, a physician named John Fullerton filed suit claiming that he had been defamed by the Florida Medical Association and three physicians who asked the association to investigate his expert testimony.
Liability Surcharges
A final tactic that bears mentioning is the idea of charging patients an additional fee to cover increases in malpractice insurance premiums. This idea was raised at the 2004 annual meeting of the AMA, which plans to study the legal implications. The approach could be problematic, since clinicians' fees may be limited under agreements with public and private third-party payers.
Conclusion
The actions described in this Cyberounds® reflect the increasing need to reform the malpractice system. The trick is how to do it so that the system can accomplish its primary functions of helping to prevent medical errors and easing the financial and emotional burdens on legitimate victims without at the same time being so costly and aggravating for clinicians. Probably the most fruitful avenue outside of legislative reform is for the courts to do a better job of making sure that expert testimony is accurate and truthful. A number of proposals are being considered along these lines, including relying more on "neutral" or court-appointed experts. It remains to be seen whether the efforts described above, in which clinicians try to take matters more into their own hands, will exert pressure for fruitful change or provoke a backlash.