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ysicians Actions Aainst Medical Malpractice Suis :ountersui for Legal Malpractice Arthur T. Davidson, MD, JD, and Arthur H. Coleman, MD, JD
Dr. Arthur H. Coleman Dr. Arthur T. Davidson
One of the most frustrating and annoying problems facing the practicing physician today is what to do about ungrounded and unmeritorious medical malpractice suits. We were all heartened by a case in the State of Illinois where a radiologist countersued and won. However, lest we fall into the trap of thinking that a countersuit is the panacea for all of the ills of frivolous malpractice suits, it would be well for us to review the elements necessarily contained in a successful countersuit. The basic premise required for a plaintiff to sue in a civil court is that he has "a cause of action." The phrase "a cause of action" has rather definite, though broad, limitations. In essence it means the legal right to maintain an acFirst article in a two-article series. Requests for reprints should be addressed to Dr. Arthur T. Davidson, 1378 President Street, Brooklyn, NY 11213.
tion in a court of law. This legal right is usually spelled out by (1) statutory law, and (2) the court's opinions or case law. A strict definition of this legal phrase, "cause of action," is "matter for which an action may be brought; the ground on which an action may be sustained; the right to bring a suit. . . .The term is synonymous with right of action, right of recovery." Graham vs Scripture, 26 How Prac (NY) 501. The quickest way for a young lawyer to have his case thrown out of court is to hastily draw up his pleadings and fail to state a legal "cause of action." The opposing attorney, if knowledgeable, will immediately make a motion* under Article 3211 (a) (7) of
the Civil Practice Law and Rules for a judgment dismissing the action on the grounds that "the pleading fails to state a cause of action." Every state in the Union contains a similar type of motion in its "Civil Practice Act." The Federal Court system has an identical rule. It is Rule 12 (b) (6) of the "Federal Rules of Civil Procedure for the United States District Courts," which states, "failure to state a claim upon which relief can be granted." If the young attorney has failed to state a "cause of action" the opposing attorney may make a motion for judgment before trial on application to the court with noticet to the opposing party.
*In Courts, all things are done on motions either by the parties to the suit or, in some cases, the court on its own motion.
tin the Courts, all motions are made "on notice" to the opposing party. An Affidavit or Affirmation of Service must accompany the motion papers or the clerk of the court will not accept the papers for filing. What the clerk does not accept, the judge does not see.
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 70, NO. 7, 1978
523
A second essential component to maintaining a legal action by a plaintiff is the establishment of a "Prima Facie Case." The making out of a "Prima Facie Case" is the second hurdle that the plaintiff must overcome before the opponent is required to raise his defenses. The definition of a "Prima Facie Case," rather completely and concisely stated in Black's Law Dictionary, is as follows: "A litigating party is said to have a Prima Facie Case when the evidence in his favor is sufficiently strong for his opponent to be called on to answer it. A Prima Facie Case, then, is established by producing sufficient evidence, and can be overthrown only
by rebutting evidence adduced by the other side. In some cases the only question to be considered is whether there is a Prima Facie Case or not." With this background information, we can now state that for an individual to maintain a countersuit against a medical malpractice suit that individual must, in effect, allege legal malpractice against the attorney in question and proceed on one of three causes of action: (1) abuse of process, (2) malicious prosecution, or (3) prima facie tort. If the necessary elements are present, he may proceed on all three causes of action at the same time. In a second article we will discuss
each of the above three causes of action in detail, listing the elements it is necessary to prove in order to establish "Plaintiff's Prima Facie Case."
References 1. Kass A: Necessary Elements of Common Legal Actions. Jamaica, New York, Gould Publications, 1958 2. Hart HM Jr, Wechsler H (comps): The Judicial Code and Rules of Procedure in the Federal Courts. Mineola, New York, Foundation Press, Inc., 1971 3. Peterfreund H, McLaughlin JM: New York Practice: Cases and Other Materials. Mineola, New York, The Foundation Press, Inc., 1973 4. Black's Law Dictionary (ed 2)
International Conference on the Development of Therapeutic Agents for Sickle Cell Disease
A meeting on the Development of Therapeutic Agents for Sickle Cell Disease will be held in Paris on July 19-21, 1978, in conjunction with the International Congress of Hematology. The meeting, which is being organized by the Institut National de la Sante et de la Recherche Medicale (INSERM) and the National Institutes of Health, will summarize the current knowledge of the pathophysiology of sickle cell disease and the many potential antisickling agents now under investigation, as well as the methodology for evaluating new drugs. Individuals wishing further information concerning attendance of the meeting may contact: John I. Hercules, PhD, Sickle Cell Disease Branch, Building 31, Room 4A-29, National Institutes of Health, Bethesda, Maryland 20014, (301) 496-6931. 524
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 70, NO. 7, 1978
ysicians Actions Aainst Medical Malpractice Suis :ountersui for Legal Malpractice Arthur T. Davidson, MD, JD, and Arthur H. Coleman, MD, JD
Dr. Arthur H. Coleman Dr. Arthur T. Davidson
One of the most frustrating and annoying problems facing the practicing physician today is what to do about ungrounded and unmeritorious medical malpractice suits. We were all heartened by a case in the State of Illinois where a radiologist countersued and won. However, lest we fall into the trap of thinking that a countersuit is the panacea for all of the ills of frivolous malpractice suits, it would be well for us to review the elements necessarily contained in a successful countersuit. The basic premise required for a plaintiff to sue in a civil court is that he has "a cause of action." The phrase "a cause of action" has rather definite, though broad, limitations. In essence it means the legal right to maintain an acFirst article in a two-article series. Requests for reprints should be addressed to Dr. Arthur T. Davidson, 1378 President Street, Brooklyn, NY 11213.
tion in a court of law. This legal right is usually spelled out by (1) statutory law, and (2) the court's opinions or case law. A strict definition of this legal phrase, "cause of action," is "matter for which an action may be brought; the ground on which an action may be sustained; the right to bring a suit. . . .The term is synonymous with right of action, right of recovery." Graham vs Scripture, 26 How Prac (NY) 501. The quickest way for a young lawyer to have his case thrown out of court is to hastily draw up his pleadings and fail to state a legal "cause of action." The opposing attorney, if knowledgeable, will immediately make a motion* under Article 3211 (a) (7) of
the Civil Practice Law and Rules for a judgment dismissing the action on the grounds that "the pleading fails to state a cause of action." Every state in the Union contains a similar type of motion in its "Civil Practice Act." The Federal Court system has an identical rule. It is Rule 12 (b) (6) of the "Federal Rules of Civil Procedure for the United States District Courts," which states, "failure to state a claim upon which relief can be granted." If the young attorney has failed to state a "cause of action" the opposing attorney may make a motion for judgment before trial on application to the court with noticet to the opposing party.
*In Courts, all things are done on motions either by the parties to the suit or, in some cases, the court on its own motion.
tin the Courts, all motions are made "on notice" to the opposing party. An Affidavit or Affirmation of Service must accompany the motion papers or the clerk of the court will not accept the papers for filing. What the clerk does not accept, the judge does not see.
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 70, NO. 7, 1978
523
A second essential component to maintaining a legal action by a plaintiff is the establishment of a "Prima Facie Case." The making out of a "Prima Facie Case" is the second hurdle that the plaintiff must overcome before the opponent is required to raise his defenses. The definition of a "Prima Facie Case," rather completely and concisely stated in Black's Law Dictionary, is as follows: "A litigating party is said to have a Prima Facie Case when the evidence in his favor is sufficiently strong for his opponent to be called on to answer it. A Prima Facie Case, then, is established by producing sufficient evidence, and can be overthrown only
by rebutting evidence adduced by the other side. In some cases the only question to be considered is whether there is a Prima Facie Case or not." With this background information, we can now state that for an individual to maintain a countersuit against a medical malpractice suit that individual must, in effect, allege legal malpractice against the attorney in question and proceed on one of three causes of action: (1) abuse of process, (2) malicious prosecution, or (3) prima facie tort. If the necessary elements are present, he may proceed on all three causes of action at the same time. In a second article we will discuss
each of the above three causes of action in detail, listing the elements it is necessary to prove in order to establish "Plaintiff's Prima Facie Case."
References 1. Kass A: Necessary Elements of Common Legal Actions. Jamaica, New York, Gould Publications, 1958 2. Hart HM Jr, Wechsler H (comps): The Judicial Code and Rules of Procedure in the Federal Courts. Mineola, New York, Foundation Press, Inc., 1971 3. Peterfreund H, McLaughlin JM: New York Practice: Cases and Other Materials. Mineola, New York, The Foundation Press, Inc., 1973 4. Black's Law Dictionary (ed 2)
International Conference on the Development of Therapeutic Agents for Sickle Cell Disease
A meeting on the Development of Therapeutic Agents for Sickle Cell Disease will be held in Paris on July 19-21, 1978, in conjunction with the International Congress of Hematology. The meeting, which is being organized by the Institut National de la Sante et de la Recherche Medicale (INSERM) and the National Institutes of Health, will summarize the current knowledge of the pathophysiology of sickle cell disease and the many potential antisickling agents now under investigation, as well as the methodology for evaluating new drugs. Individuals wishing further information concerning attendance of the meeting may contact: John I. Hercules, PhD, Sickle Cell Disease Branch, Building 31, Room 4A-29, National Institutes of Health, Bethesda, Maryland 20014, (301) 496-6931. 524
JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION, VOL. 70, NO. 7, 1978
