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The Failure of the Medical Malpractice Countersuit Movement—A Reply to David J. Sokol, D.D.S., J.D., F.A.G.D.

Published online by Cambridge University Press:  24 February 2021

Jeffrey D. Parker
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Type
Correspondence
Information
American Journal of Law & Medicine , Volume 12 , Issue 2 , 1986 , pp. 323 - 334
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1986

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References

1 Sokol, , The Current Status of Medical Malpractice Countersuits, 10 Am. J.L. & Med. 439 (1985).Google Scholar

2 W. at 441.

3 Levonian v. Ramus, No. 78141 (Santa Cruz County Super. Ct., Cal. Aug. 21, 1986).

4 After 70,000 Malpractice Actions in Five Years, Physicians Strike Back With Suits of Their Own, Wall St. J., Aug. 15, 1980, at 34, col. 1.

5 Carlova, “Shotgun” Malpractice Suits Suffer a Costly Setback, 58 Med. Econ. 29, 34 (July 1981).

6 Note, Malicious Prosecution Liability of Plaintiffs Counsel For An Unwarranted Medical Malpractice Suit—New Developments In Physician Countersuits For Unfounded Medical Malpractice Claims, 7 N. KY. L. REV. 265 (1980)Google Scholar [hereinafter cited as Parker].

7 Raine v. Drasin, No. 79-CA-18-MR (Ky. Ct. App. March 21, 1980), affd in part 621 S.W.2d 895 (Ky. 1981); Peerman v. Sidicane, 605 S.W.2d 242 (Tenn. App. 1980); Bull v. McCuskey, 615 P.2d 957 (Nev. 1980); Dentist Wins Liability Countersuit, Am. Med. News, Apr. 20, 1979, at 3, col. 2. (case name not cited in article).

8 Nelson v. Miller, 233 Kan. 122, 660 P.2d 1361 (1983) (case was settled, according to personal conversation of author with counsel for plaintiff); Hospital Countersues In Malpractice Case, Am. Med. News, July 18, 1980, at 3, col. 1; Countersuit Settlement Won by MD, Am. Med. News, Nov. 23, 1979, at 3, col. 1; Rosenberg, The First Countersuit Money Changes Hands, 55 MED. ECON. 31 (Aug. 1978); Professional Liability Newsletter, Jan. 1976, at 1.

9 Levonian v. Ramus, No. 78141 (Santa Cruz County Super. Ct., Cal. Aug. 21, 1986).

10 Huene v. Carnes, 175 Cal. Rptr. 374 (1981), h'gdenied (Sept. 16, 1981) (case was settled); Etheredge v. Emmons, No. AO14929 (Cal. App. 1985) (opinion denied official publication by order of the California Supreme Court, Oct. 23, 1985) (rev'd in part and remanded, then settled); California MD Wins Countersuit, Am. Med. News, Jan. 30, 1981, at 17, col. 2 (title of article is misleading as case was settled).

11 Sokol, supra note 1, at 449.

12 Id. at 452.

13 Raine v. Drasin, 621 S.W.2d 895 (Ky. 1981).

14 175 Cal. Rptr. 374 (1981), h'gdenied (Sept. 16, 1981).

15 Id. at 377.

16 Personal conversations of author with physician's attorney. Notes on file at AJLM office.

17 630S.W.2d 68 (Ky. 1982).

18 Personal conversations of author with physician's attorney. Notes on file at AJLM office.

19 233 Kan. 122, 660 P.2d 1361 (1983).

20 Personal conversations of author with physician's attorney. Notes on file at AJLM office.

21 No. A014929 (Cal. App. 1985) (opinion denied official publication by order of the California Supreme Court, Oct. 23, 1985) (case was settled).

22 Personal conversations of author with physician's attorney. Notes on file at AJLM office.

23 81 111. 2d 201, 407 N.E.2d 47 (1980), cited by Sokol, supra note 1, at 449 n.62.

24 3 Wash. App. 139, 473 P.2d 202 (1970), cited by Sokol, supra note 1, at 449 n.62.

25 561 S.W.2d 331 (Ky. Ct. App. 1978).

26 SokoI, supra note 1, at 449 n.62.

27 Id. at 449 n.61.

28 Fee v. Sullivan, 379 So. 2d 412 (Fla. App. 1980).

29 Sokol, supra note 1, at 449 n.61.

30 Dupre v. Marquis, 467 So. 2d 65 (La. Ct. App. 1985), reh'g denied (Apr. 23, 1985), writ denied (June 17, 1985).

31 Sokol, supra note 1, at 457.

32 Id. at 439.

33 Id. at 457.

34 Parker, supra note 6, at 269 n.22 and accompanying text.

35 Id. at 270.

36 Balthazar v. Dowling, 65 111. App. 3d 824, 382 N.E.2d 1257 (1978); accord Moiel v. Sandlin, 571 S.W.2d 567 (Tex. Civ. App. 1978); Pantone v. Demos, 59 111. App. 3d 328, 375 N.E.2d 480 (1978), discussed in Lavin, The Most Discouraging Countersuit Verdict Yet, 55 Med. Econ. 74 (Sept. 1978); Ackerman v. Lagano, 172 N.J. Super. 468, 412 A.2d 1054 (1979).

37 Smith v. Michigan Buggy Co., 175 111. 619, 629, 51 N.E. 569, 572 (1898).

38 Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St. 489, 56 N.E. 198 (1900).

39 Curlender v. Bio-Science Laboratories, 106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980) (wrongful life); Sindell v. Abbott Laboratories, 26 Cal. 3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert, denied sub nam.; E.R. Squibb & Sons v. Sindell, 449 U.S. 912 (1980) (market share theory of product liability); Tarasoff v. Regents of the Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976) (duty of therapist to warn third party foreseeably endangered by his patient).

40 American Medical Association Special Task Force on Professional Liability and Insurance, Professional Liability in the 80's—Report 2, at 6 (1984).

41 Am. Med. News, Dec. 20, 1985, at 16, col. 3.

42 Physicians Insurance Company of Ohio, 1984 Annual Report (1984).

43 The percentage of all malpractice claims which are closed without payment naturally varies by state and type of insured, but apparently remains in the 50%-75% range. A recent study of claims in Michigan, for events involving commercially insured hospitals or commercially insured physicians practicing at insured hospitals, showed that only about half of all claims closed in each of the years 1978-1984 included an indemnity payment. Payne, Van Harrison & Harel, Malpractice Trends in Michigan; Commercially Insured Claims and Awards, 1978- 1984, at 32 (Nov. 1985) (Institute for Soc. Research, Univ. of Mich.).

44 “Nationwide, more than 50% of all [medical malpractice] claims filed are found to be without merit.” Huge Malpractice Suits, Premiums Threaten Insurers and Health Care, Wall St. J., Sept. 21, 1983, at 35, col. 3.

45 New state laws which limit the amount that a plaintiff may recover in a medical malpractice action for non-economic damages, such as pain and suffering, have been upheld as constitutional by the Supreme Courts of California, Indiana, and Nebraska, and the U.S. Supreme Court recently dismissed an appeal of the California ruling. However, such damage limits have been successfully challenged in Ohio, Illinois, Texas, New Hampshire, and North Dakota, where they were held to discriminate against medical malpractice plaintiffs, and thus to violate the equal protection guarantees contained in both state and federal constitutions. See Nat'l L.J., Oct. 28, 1985, at 5, col. 1. Like damage limits, many of the other new, malpracticerelated tort reform provisions now being proposed (e.g., limits on contingency fees for malpractice plaintiffs’ attorneys) will encounter such constitutional challenges, because they appear to deprive medical malpractice plaintiffs of the prerogatives enjoyed by other plaintiffs. However, properly drafted countersuit legislation would circumvent such constitutional objections, because it would not single out any group of countersuit plaintiffs for preferential treatment.

46 Frank, , Frivolous Suits Targeted, 70 A.B.A. J. 28 (1984)Google Scholar.

47 Fed. R. Civ. P. 11.

48 Frank, supra note 46, at 28; Strasser, Sanctions: A Sword Is Sharpened, Nat'l L.J., Nov. 11, 1985, at 1, col. 2.

49 Frank, supra note 46, at 28; Strasser, supra note 48, at 32.

50 See the eloquent and instructive dissents of Chief Justice Celebrezze and Justice Douglas in Crawford v. Euclid Nat'l Bank, 19 Ohio St. 3d 135, 140, 143, 483 N.E.2d 1168, 1172, 1174 (1985), and the dissent of Chief Justice O'Connell in Buck v. Gale, 271 Or. 90,95-96,530 P.2d 1248, 1250-51 (1975).

51 American Medical Association Special Task Force on Professional Liability and Insurance, Professional Liability in the ‘80's—Report 3, at 14 (1985).

52 Section 2-109 of the new Illinois statute, Ill. Rev. Stat. ch. 110, § 2-109 (1985), states in part:

In all cases alleging malicious prosecution arising out of proceedings which sought damages for injuries or death by reason of medical, hospital or other healing act malpractice, the plaintiff need not plead or prove special injury to sustain his or her cause of action.

Such wording is unfortunate, as it clearly abolishes the special injury rule only for countersuits based on malicious prosecution of a medical malpractice claim. It thus appears to favor doctors and hospitals as compared to all other countersuit plaintiffs, and to disfavor medical malpractice countersuit defendants as compared to all other countersuit defendants. This unnecessary inequity raises the likelihood of a valid constitutional challenge. (See n. 45 and accompanying text, supra. A less parochial alternative (which sacrifices nothing) would have been to eliminate the archaic and ludicrous special injury rule for all who are wrongfully sued. Hopefully, as organized medicine refines its strategy for countersuit-related legislation, such myopic errors will be avoided.

Note: In December 1985 a circuit judge in Chicago ruled that five challenged sections of the Illinois Medical Malpractice Reform Act were unconstitutional. Bernier v Burris, 85 Ch. 6627 (Cook County Cir. Ct., 111. 1985). Although the section abolishing the special injury rule in malpractice countersuits was not among those provisions struck down, it is susceptible to the same objections, and may not survive close scrutiny. Reversing the lower court in June 1986, the Illinois Supreme Court in Bernier v. Burris, 113 111. 2d 219, 497 N.E.2d 763 upheld four of the five challenged tort reforms, rejecting only the establishment of mandatory, pre-trial screening panels.

53 E.g., Ga. Code Ann. § 9-15-14 (Supp. 1987); Idaho Code § 12-123 (Supp. 1987);

N.Y. Civ. Prac. Law § 8303-a (McKinney Supp. 1987). Although the limited damages specified by attorneys’ fee statutes may be recovered without the necessity of filing a countersuit, the other types of damages invariably suffered by physicians in frivolous malpractice suits, e.g., loss of reputation, mental anguish, increased malpractice insurance costs, etc., can only be recovered through countersuits—assuming that countersuits can be made to work. As we shall see in Yost v. Torok, infra, (text accompanying nn. 58-61) the courts may be inspired by the legislative intent evident in state attorneys’ fee statutes, and may permit countersuits as a means of legitimately compensating those other types of damages. However, in the twenty special injury rule states like Ohio, countersuits will remain hopelessly foredoomed unless the special injury rule is also abolished by the legislature, since the courts in these states have repeatedly eschewed this option.

54 E.g., Cal Civ. Proc. Code § 441.30 (West Supp. 1987); N.Y. Civ. Prac. Law § 3012-a (Supp. 1987).

55 E.g., Cal Civ. Proc. Code § 364 (West 1982).

56 See text accompanying note 47.

57 Ill. Rev. Stat. ch. 110, § 2-109 (Supp. 1987).

58 The new Georgia statute, Ga. Code Ann. § 9-15-14 (Supp. 1987), provides for the award of attorney fees and expenses of litigation for specified abusive conduct.

59 Yost v. Torok, 344 S.E.2d 414 (Ga. 1986).

60 Id. at 415.

61 Id. at 417.

62 Vincent, & Smith, , Georgia Supreme Court Creates New Tort to Combat Filing of Frivolous i Claims, 54 Citation 63, 64 (1987)Google Scholar.

63 Levonian v. Ramus, No. 78141 (Santa Cruz County Super. Ct., Cal. Aug. 21, 1986).

64 We are not persuaded by the plaintiff's argument that in light of the recent rise in the volume of malpractice litigation, including the filing of frivolous malpractice suits purely for their settlement value, public policy demands the creation of a cause of action to protect the courts from their misuse and the physician from the resulting harm… . Indeed, we believe it would be contrary to public policy for us to hold that an attorney has a duty to an intended defendant not to file a weak or perhaps ‘frivolous’ lawsuit… .” Berlin v. Nathan, 64 111. App. 3d 940, 951-52, 381 N.E.2d 1367, 1374-76 (1978).