Physicians' Actions Against Medical Malpractice Suits. Countersuit for Legal Malpractice Arthur T. Davidson, MD, JD, and Arthur H. Coleman, MD, JD Brooklyn, New York
DcxBrs A:v--rthur-. T
D
idson
Dr. Arthur T. Davidson
The first article in this series had as its primary purpose the outline of certain fundamental legal concepts that must be satisfied in order to gain entry into the court system. We discussed and defined cause of action and "Prima Facie Case," and enumerated but did not discuss the three causes of action that a plaintiff (physician) can proceed upon in order to maintain a countersuit against an attorney for lodging a medical malpractice suit against the physician in question. These three causes of actions are (1) abuse of process, (2) malicious pros-
The first article in this two-part series was published in the July issue of this Journal (Vol 70:523, 1978). Requests for reprints should be addressed to Dr. Arthur T. Davidson, 1378 President Street, Brooklyn, NY 11213.
Dr. Arthur H. Coleman
ecution, and (3) prima facie tort. In this article we will discuss the necessary elements required to establish a prima facie case in each of the three causes of actions.
Abuse of Process The gravamen of an action for abuse of process is willfully using legal process, either civil or criminal: (1) for a purpose not justified by law, and (2) to effect an object not within its proper scope.1 It is important to remember that the action for abuse of process cannot be maintained merely because the action was brought. One must show an improper use, abuse, or perversion of a legally issued process. The mere issuance of a summons and complaint in a malpractice action does not satisfy that requirement.2
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 1, 1979
The legal volume New York Jurisprudence states: It has repeatedly been held that the mere institution of a civil action which has occasioned a party trouble, inconvenience, and expense of defending, will not support an action for abuse of process. Public policy requires that parties be permitted to avail themselves of the courts to settle their grievances and that they may do so without unnecessary exposure to a suit for damages in the event of an unsuccessful prosecution. "3 The two elements in an action for abuse of process are (1) the existence of an ulterior motive, and (2) an act in the
use of process not proper in the regular prosecution of the proceeding.
Malicious Prosecution To maintain a cause of action for malicious prosecution, it is necessary
to plead and prove two important elements: (1) the action complained of must have terminated favorably for the party seeking to recover for malicious prosecution, and (2) there must have been an interference with the plaintiff's person or property. Thus, we can see that in order to satisfy the first requirement, ie, favorable termination of the prior action, the physician must win the malpractice suit. This means in effect that the first action must be completed before an action for malicious prosecution can be brought. It cannot be brought as a countersuit. The second requirementthat of interference with the plaintiff's person or property-usually means interference in the form of an injunction, attachment, or some other "provisional remedy." Since most physicians are now professional corporations, it might be important to point out that a complaint for malicious prosecution in an action by a corporation, which alleges that the credit and business of the corporation have been irreparably damaged and
that it expended money for counsel fees for its defense, has been held sufficient.4
Prima Facie Tort To maintain an action under this cause of action one very important element must be satisfied, ie, only actual damages may be recovered. One cannot recover punitive and exemplary damages.5 One must be able to plead and prove the actual loss in dollars and cents occasioned by the previous suit. It is not enough to allege anticipated loss of income due to damage to one's business or profession.
Conclusion As has been pointed out in this series of two articles, a physician who has been sued irresponsibly in a medical malpractice suit can maintain an action for legal malpractice against the attorney involved in the malpractice suit.6 However, this cannot be based
merely on the fact that the suit was groundlessly instituted. Judges are usually former practicing lawyers and are very sympathetic to lawyers filing suits, within broad limitations. It is primarily essential to show that the attorney had "scienter," that is, that the attorney knew that there was no probable cause when he instituted the suit against the physician.7 References 1. 36 NY Jurisprudence, State of New York 2. Drago vs Buonagurio, 89 Misc 2d 171, State of New York 3. 1 NY Jurisprudence, Abuse of Process, Sec 2 4. New England T&S Co vs KellySpringfield Tire Co, 123 Misc 954, 207 NYS 95, State of New York 5. Bohm vs Holsberg, 47 AD2d 764, State of New York 6. 47 Appellate Division Reports, 2d Series, State of New York 7. Williams vs Williams, 23 NY 2d 592, 596 supra, State of New York
Addendum For further information, see Russo vs Dik, Index No. 77-147, New York Supreme Court, June 6, 1978, where the Court dismissed an action for malicious prosecution for failure to satisfy the criteria outlined in this article.
Out-ofmPocket Cost and Acquisition of Prescribed Medicines United States, 1973 There were an estimated 1,198.4 million acquisitions of prescribed medicine in 1973, or an average of 5.8 acquisitions per person per year. About 87 percent of them were all or partially paid for by family and about 13 percent were acquired without charge. The average cost per purchase was about $4.80. The frequency of acquisition of prescribed medicine is strongly associated with sex, age, and limitation of activity. The average out-of-pocket expense for prescribed medicine was about $23.80 per person per year. Data also show that this out-of-pocket expense is highly correlated with age, sex, and 100
limitation of activity. It increased steadily with age from $9.10 per year for persons under 17 years of age to $61.40 for those 65 years or older. The average annual expense for prescribed medicine was $18.60 per person for males and $28.60 for females. Persons who were unable to carry on major activity spent substantially greater amounts for medicines ($100.20) than did persons with no limitation of activity ($15.90). Vital and Health Statistics Health Resources Administration Department of Health, Education, and Welfare JOURNAL OF THE NAlIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 1, 1979
DcxBrs A:v--rthur-. T
D
idson
Dr. Arthur T. Davidson
The first article in this series had as its primary purpose the outline of certain fundamental legal concepts that must be satisfied in order to gain entry into the court system. We discussed and defined cause of action and "Prima Facie Case," and enumerated but did not discuss the three causes of action that a plaintiff (physician) can proceed upon in order to maintain a countersuit against an attorney for lodging a medical malpractice suit against the physician in question. These three causes of actions are (1) abuse of process, (2) malicious pros-
The first article in this two-part series was published in the July issue of this Journal (Vol 70:523, 1978). Requests for reprints should be addressed to Dr. Arthur T. Davidson, 1378 President Street, Brooklyn, NY 11213.
Dr. Arthur H. Coleman
ecution, and (3) prima facie tort. In this article we will discuss the necessary elements required to establish a prima facie case in each of the three causes of actions.
Abuse of Process The gravamen of an action for abuse of process is willfully using legal process, either civil or criminal: (1) for a purpose not justified by law, and (2) to effect an object not within its proper scope.1 It is important to remember that the action for abuse of process cannot be maintained merely because the action was brought. One must show an improper use, abuse, or perversion of a legally issued process. The mere issuance of a summons and complaint in a malpractice action does not satisfy that requirement.2
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 1, 1979
The legal volume New York Jurisprudence states: It has repeatedly been held that the mere institution of a civil action which has occasioned a party trouble, inconvenience, and expense of defending, will not support an action for abuse of process. Public policy requires that parties be permitted to avail themselves of the courts to settle their grievances and that they may do so without unnecessary exposure to a suit for damages in the event of an unsuccessful prosecution. "3 The two elements in an action for abuse of process are (1) the existence of an ulterior motive, and (2) an act in the
use of process not proper in the regular prosecution of the proceeding.
Malicious Prosecution To maintain a cause of action for malicious prosecution, it is necessary
to plead and prove two important elements: (1) the action complained of must have terminated favorably for the party seeking to recover for malicious prosecution, and (2) there must have been an interference with the plaintiff's person or property. Thus, we can see that in order to satisfy the first requirement, ie, favorable termination of the prior action, the physician must win the malpractice suit. This means in effect that the first action must be completed before an action for malicious prosecution can be brought. It cannot be brought as a countersuit. The second requirementthat of interference with the plaintiff's person or property-usually means interference in the form of an injunction, attachment, or some other "provisional remedy." Since most physicians are now professional corporations, it might be important to point out that a complaint for malicious prosecution in an action by a corporation, which alleges that the credit and business of the corporation have been irreparably damaged and
that it expended money for counsel fees for its defense, has been held sufficient.4
Prima Facie Tort To maintain an action under this cause of action one very important element must be satisfied, ie, only actual damages may be recovered. One cannot recover punitive and exemplary damages.5 One must be able to plead and prove the actual loss in dollars and cents occasioned by the previous suit. It is not enough to allege anticipated loss of income due to damage to one's business or profession.
Conclusion As has been pointed out in this series of two articles, a physician who has been sued irresponsibly in a medical malpractice suit can maintain an action for legal malpractice against the attorney involved in the malpractice suit.6 However, this cannot be based
merely on the fact that the suit was groundlessly instituted. Judges are usually former practicing lawyers and are very sympathetic to lawyers filing suits, within broad limitations. It is primarily essential to show that the attorney had "scienter," that is, that the attorney knew that there was no probable cause when he instituted the suit against the physician.7 References 1. 36 NY Jurisprudence, State of New York 2. Drago vs Buonagurio, 89 Misc 2d 171, State of New York 3. 1 NY Jurisprudence, Abuse of Process, Sec 2 4. New England T&S Co vs KellySpringfield Tire Co, 123 Misc 954, 207 NYS 95, State of New York 5. Bohm vs Holsberg, 47 AD2d 764, State of New York 6. 47 Appellate Division Reports, 2d Series, State of New York 7. Williams vs Williams, 23 NY 2d 592, 596 supra, State of New York
Addendum For further information, see Russo vs Dik, Index No. 77-147, New York Supreme Court, June 6, 1978, where the Court dismissed an action for malicious prosecution for failure to satisfy the criteria outlined in this article.
Out-ofmPocket Cost and Acquisition of Prescribed Medicines United States, 1973 There were an estimated 1,198.4 million acquisitions of prescribed medicine in 1973, or an average of 5.8 acquisitions per person per year. About 87 percent of them were all or partially paid for by family and about 13 percent were acquired without charge. The average cost per purchase was about $4.80. The frequency of acquisition of prescribed medicine is strongly associated with sex, age, and limitation of activity. The average out-of-pocket expense for prescribed medicine was about $23.80 per person per year. Data also show that this out-of-pocket expense is highly correlated with age, sex, and 100
limitation of activity. It increased steadily with age from $9.10 per year for persons under 17 years of age to $61.40 for those 65 years or older. The average annual expense for prescribed medicine was $18.60 per person for males and $28.60 for females. Persons who were unable to carry on major activity spent substantially greater amounts for medicines ($100.20) than did persons with no limitation of activity ($15.90). Vital and Health Statistics Health Resources Administration Department of Health, Education, and Welfare JOURNAL OF THE NAlIONAL MEDICAL ASSOCIATION, VOL. 71, NO. 1, 1979
