Urologist Arnaldo Trabucco, MD, was outraged when he learned of a legal claim filed by a patient's family blaming him for the patient's death.
Trabucco had performed a successful laparoscopic left radical nephrectomy on Gerald Scharf, but he died 3 days later from an unrelated condition, said Trabucco, who now practices in California. The claims alleged not only wrongful death, but also that Trabucco "committed willful and malicious actions upon" the patient, eventually resulting in his death, and that Trabucco's actions constituted "extreme and outrageous behavior
"It's an uphill struggle to prevail," says Jeffrey Segal, MD, JD. "Have people done it? Yes, they have. Is it easy? No."
A physician must hit the marks of a distinct checklist to pursue a malicious prosecution case, said Segal, CEO and founder of Medical Justice, a company that aids and advises physicians on legal matters. One necessary element is that the malpractice case against the physician must have been adjudicated on the merits, he said. For example, the doctor won the case at trial or the case was dismissed on summary judgment. Summary judgment refers to a court tossing the claim because there was no genuine dispute as to any material fact and because the defendant is entitled to judgment as a matter of law.
If the case was dismissed for another reason, such as a technicality, or dropped by the plaintiff, the case would not meet the threshold for a malicious prosecution claim, Segal explains.
The physician must also show that the lawsuit was instituted with "malice," meaning with an intent to hurt the physician, and that the lawsuit was brought without "probable cause," adds J. Richard Moore, JD, a medical malpractice defense attorney based in Indianapolis, Indiana.
"The courts are still pretty good at weeding out cases with no merit whatsoever, so even if a physician takes a case to trial and wins, it is exceedingly rare that a case that makes it that far, has no merit whatsoever," Moore said.
In addition, a plaintiffs' attorney may be protected from a malicious prosecution claim because they relied on a medical expert's opinion that reasonable cause existed to file a lawsuit, notes William Sullivan, DO, JD, an emergency physician and attorney based in Frankfort, Illinois.
Sullivan has personal experience with such a challenge. He filed a malicious prosecution claim against a plaintiffs' attorney after being dismissed from a medical malpractice case. The claim stemmed from Sullivan inserting an emergency central line into a trauma patient who was taken to surgery and later died. The suit alleged Sullivan failed to diagnose internal bleeding and failed to perform surgery, although surgeons at the hospital knew internal bleeding was present and Sullivan had no privileges to perform surgery, he said.
However, Sullivan was unable to identify the medical expert involved in the claim. Illinois law allows a malpractice plaintiff to withhold the identity of a medical expert who certifies a malpractice lawsuit. Because Sullivan couldn't identify the expert, he could not depose the physician, and the law firm claimed there was no malicious prosecution because it relied on the trauma surgeon's opinion that Sullivan was liable.
The trial court agreed with the law firm's argument and dismissed them from the case, Sullivan said. The trial court also agreed that the expert trauma surgeon should be allowed to remain anonymous in accordance with Illinois law.
Alternative Options for Doctors to Recover Damages
For physicians who want to recoup after a frivolous claim, but don't want to dive into another lawsuit, there are other options, say legal experts.
One alternative is filing a motion for sanctions, Sullivan said. If an attorney files a lawsuit that does not have a reasonable basis in fact or law, that attorney could be subject to sanctions, including paying for the physician's attorney's fees and costs, he explained. If a motion for sanctions is granted against an opposing attorney, that fact may be reportable to the attorney's insurance carrier and also reportable to the attorney's state licensing board. A motion for sanctions does not require filing of a separate lawsuit and filing a motion for sanctions may allow the defendant physician or the defense attorney to depose the plaintiff attorney regarding the reasonable basis that attorney had for filing a lawsuit, Sullivan said.
Sullivan recently represented a physician who won a motion for sanctions. During the legal action against him, Sullivan presented the plaintiff's attorney with information showing why his lawsuit did not have a reasonable basis, but the attorney repeatedly ignored the information, he said.
"Eventually, I filed a motion to dismiss the physician from the lawsuit and that motion was granted," he said. "I also filed a motion for sanctions so that the physician could recover the costs involved in defending the claim. The trial court granted our motion for sanctions against the plaintiff and her law firm and awarded my client more than $10,000."
Physicians who believe a plaintiffs' attorney is acting unprofessionally can also file a complaint with the attorney's bar, Segal said. And expert witnesses acting in bad faith can be reported to professional societies, medical licensing boards, and/or specialty boards.
"There are a number of avenues to address the sense of justice," he said. "But if you're looking for a payday, the only way to do that is by going to court."
Alicia Gallegos is a reporter for Medscape Business of Medicine based in the Midwest. She has previously written for the American Medical News, the ACP Internist, and the AAMC Reporter. Contact Alicia at agallegos@medscape.net or via Twitter at @Legal_med.
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