Can Doctors Sue Patients

[slcdoc]

I was talking to a doc the other day who had been sued. The claim was ridiculous, and when they had their pre-hearing or whatever the judge and another physician (expert witness?) quickly threw the case out and scolded the prosecutors and patient for wasting everybody's time.

My question is, can Doctor's sue patients like this? Doctors most likely don't need the money, but this might discourage patients from filing outlandish malpractice claims because it could come back and bite them in the butt.

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[HurricaneKatt]

Man wouldn't that be nice! lol ....I'm not sure...

 

[Law2Doc]

I was talking to a doc the other day who had been sued. The claim was ridiculous, and when they had their pre-hearing or whatever the judge and another physician (expert witness?) quickly threw the case out and scolded the prosecutors and patient for wasting everybody's time.

My question is, can Doctor's sue patients like this? Doctors most likely don't need the money, but this might discourage patients from filing outlandish malpractice claims because it could come back and bite them in the butt.

Nope. If a case is truly frivolous there are fines and sanctions that the defendant doctor's lawyers can ask for, or a judge can hand out, but given that they didn't, that suggests it actually wasn't so "ridiculous" that it merited any discouragement. Bear in mind that a doctor's view of frivolous or ridiculous is often different than what the law regards as frivolous. Sounds like they actually had an expert and your friend dodged a bullet. It may have been a lot better case then "outlandish".

In terms of suing a client who hasn't sued you first, this is always a bad idea. Lawyers learned this years ago the hard way -- eg those that sued clients for nonpayment often got hit with countersuits that led to big damages.

 

[barto123]

if the case goes to trial and the patient ends up losing, the doctor can sue for costs incurred in a defense, but in order to win im pretty sure the doctor and his lawyers must prove that the patient was suing out of malicious intent or with full knowledge that the their claim was groundless, which is very hard to do.

 

[Perrotfish]

Be aware that having your case thrown out of court is a lot worse, in terms of what it implies about the case, in some states than others. There are states, now, where a board of three physicians needs to approve any malpractice claim before it can even go to trial. In those states getting to a courtroom can be a lawyer's biggest challenge.

 

[elwademd]

yes, a doctor can sue a patient.

whether a doctor should sue a patient is another question.

 

[186321]

Nope. If a case is truly frivolous there are fines and sanctions that the defendant doctor's lawyers can ask for, or a judge can hand out, but given that they didn't, that suggests it actually wasn't so "ridiculous" that it merited any discouragement. Bear in mind that a doctor's view of frivolous or ridiculous is often different than what the law regards as frivolous....

Its never frivolous as long as you can lie/exaggerate enough to steal some of the defendant's money and make the world and much, much worse place to live in. Not that there aren't certain cases where a doctor/defendant is truly at fault, but there is just way too much rampant and unnecessary suing in this country.

 

[edmadison]

if the case goes to trial and the patient ends up losing, the doctor can sue for costs incurred in a defense, but in order to win im pretty sure the doctor and his lawyers must prove that the patient was suing out of malicious intent or with full knowledge that the their claim was groundless, which is very hard to do.

In the US, parties pay their own litigation costs. There are exceptions to this, of course, particularly in causes of action specifically created by statute (civil rights, consumer protection, racketeering) rather than common law. This is in contrast to the "English Rule" whereby the loser pays the cost of the suit including both sides' attorney fees. Many, myself included, believe that the English Rule removes the incentive of plaintiff's attorneys to file dubious lawsuits hoping for a quick modest settlement by an insurance company seeking to avoid the costs of defending the suit. Some have proposed a change to the English Rule, but the trial lawyers and their benefactors, federal and state legislators, have blocked this.

As Law2Doc noted, in cases where a case is completely without merit, the defense attorney can ask the court for sanctions, including legal fees. One does not file a suit, however; it just happens after the case is dealt with. Sanctions almost never happen, of course, because the of the "good old boy" network. Also, remember the lay persons concept of a meritless lawsuit is different than the law's. This is why cases rarely get thrown out of court. If there is a dispute as to facts (including what constitutes the standard of care) than the case would go forward.

Finally, in most jurisdictions, you cannot sue for someone for libel for allegations put forth in legal pleadings. This creates an interesting algorithm where an attorney can file a suit and leek the complaint to the press.

Ed.

 

[Law2Doc]

Sanctions almost never happen, of course, because the of the "good old boy" network.

You were accurate up to this sentence. First, sanctions are not so rare, but you only see them when the line for frivolous gets crossed, which simply doesn't happen that much. Lawyers don't put themselves and their reputations unnecessarily by backing objectively untenable cases. The "good old boy" network rarely plays any role in sanctions. You only see this in small town litigation, and it probably cuts as much in favor of the local doctor as the local lawyer.

 

[Law2Doc]

Not that there aren't certain cases where a doctor/defendant is truly at fault, but there is just way too much rampant and unnecessary suing in this country.

A study from Harvard Med not too many years ago indicated that actually in medmal, the number of frivolous suits was pretty minimal. This is because most courts require a party to have a physician as expert witness on board as part of their case. And if a doctor is willing to say the standard of care was deviated from, then it isn't frivolous. That doctors are willing to be unscrupulous and take questionable stances, if true, is a problem of the medical profession, not law, and one that ought to be addressed internally. Without medical experts, these cases don't exist.

 

[45408]

That doctors are willing to be unscrupulous and take questionable stances, if true, is a problem of the medical profession, not law, and one that ought to be addressed internally. Without medical experts, these cases don't exist.

I disagree. Some of the "experts" I've heard about are shady to a significant degree, and they don't represent the average doctor in the slightest. They're the equivalent of corrupt cops, IMO.

 

[Law2Doc]

I disagree. Some of the "experts" I've heard about are shady to a significant degree, and they don't represent the average doctor in the slightest. They're the equivalent of corrupt cops, IMO.

But they are cops this profession has the ability to control, and chooses to look the other way. Other professions have codes of ethics that everyone has to follow. Some fields aren't allowed to advertise certain ways, accept payment for certain things, etc. Medicine takes a hands off approach and in the medmal area it tends to burn them.

 

[Tired]

A better choice is to sue the plaintiff's attorney or expert witness.

http://www.physiciansnews.com/spotlight/305.html

 

[45408]

Here's one where the doctor sued a lawyer - http://www.ama-assn.org/ama1/pub/upload/mm/395/banks_amavoice.pdf

 

[Law2Doc]

A better choice is to sue the plaintiff's attorney or expert witness.

http://www.physiciansnews.com/spotlight/305.html

There's a lot of false statements in that article (esp the lack of penalties/sanctions vs lawyers who bring frivolous claims), and considering the article was written in 2005 and you've heard nothing about it, it was a dead end.

 

[Law2Doc]

Here's one where the doctor sued a lawyer - http://www.ama-assn.org/ama1/pub/upload/mm/395/banks_amavoice.pdf

If you read the pleadings (http://www.sconet.state.oh.us/rod/docs/pdf/8/2007/2007-ohio-2117.pdf), you will see that this isn't exactly the typical medmal suit, and the lawyer was way way way over the line of frivolity. It appears the plaintiff sued the defendant here for simply being an orthopod at a hospital where ANOTHER doctor allegedly accused patient of drug seeking and asked her to leave the hospital. On top of that, the patient's biggest claim for damages seems to be loss of consortium with her boyfriend, which most states don't recognize as damages. I promise you that lawsuits like this are absurdly rare and that lawyers like this don't stay in business very long. So I wouldn't chalk this up as the norm or something you will have to defend against when you are a physician.

 

[barto123]

If you read the pleadings (http://www.sconet.state.oh.us/rod/docs/pdf/8/2007/2007-ohio-2117.pdf), you will see that this isn't exactly the typical medmal suit, and the lawyer was way way way over the line of frivolity. It appears the plaintiff sued the defendant here for simply being an orthopod at a hospital where ANOTHER doctor allegedly accused patient of drug seeking and asked her to leave the hospital. On top of that, the patient's biggest claim for damages seems to be loss of consortium with her boyfriend, which most states don't recognize as damages. I promise you that lawsuits like this are absurdly rare and that lawyers like this don't stay in business very long. So I wouldn't chalk this up as the norm or something you will have to defend against when you are a physician.

i dont think this was way over the line of frivolity, like you mentioned before what the court considers frivolity is not the same as what a doctor would. in fact ive heard of many physicians being sued just by association even though they never treated the patient, so im doubtful that these are as rare as you claim. it's probably not the norm, but it does happen. and why not, because there is really very little deterrent for attorneys to pursue these frivolous claims if they're being paid for it, because what really is rare is when doctors fight back.

 

[PeepshowJohnny]

For the legal minds in this thread, here's a hypothetical.

What about defamation law suits?

I.E. let's say I'm a physician and I have a poor relationship with a former patient. He/she commits slander/libel against me, saying/printing I'm addicted to painkillers, I screw my patients out of money by false billing practices, I'm under investigation to have my license taken away. Now assuming those are all false (and I can attempt to prove the former patient knows them to be false) is there any barrier to me pursuing legal action against them simply because our relationship use to be patient-phsycian?

 

[Tired]

There's a lot of false statements in that article (esp the lack of penalties/sanctions vs lawyers who bring frivolous claims), and considering the article was written in 2005 and you've heard nothing about it, it was a dead end.

The lack of action by physicians has nothing to do with whether or not this can be done.

 

[Law2Doc]

As I've said above there are VERY significant sanctions against attorneys for truly frivolous suits. The folks on here who keep harping on there being very little deterrent are simply, flat out wrong. Lawyers get sanctioned and disciplined for frivolous cases. But what you guys consider frivolous is probably very different than what a court considers frivolous. And what it tends to turn on is whether an expert, i.e. a licensed physician, is willing to throw his hat into the ring and say "yes, the standard of care was violated in this case". In which case it isn't frivolous by definition, it's a prima facie good case and every judge in the nation will give the plaintiff a chance to get to court. As for being sued by association, when a plaintiff files a suit, he doesn't always know who was involved in the malpractice, so he tends to sue everyone in the OR or everyone who provided care to him during the admission, plus the hospital. Then as it becomes clear who did what, parties are dismissed from the suit. What is egregious about the claim cited above is that even after being dismissed from the suit both as a non-involved party, and because the plaintiff did not make out a prima facie case, the plaintiff filed suit AGAIN against this same doctor with the same, previously-dismissed claim. So this suit is, in fact, far beyond that which you typically will see and pretty clearly off the wall. You don't get loss of consortium for non-spouses, so this couldn't be a legitimate ground to sue. The plaintiff herself acknowledged that this was not the doctor involved. And yet the attorney still went forward. So yeah, this is frivolous and undeniably so. And not comparable to anything you will face as a doctor. And this lawyer will likely get more than a slap on the wrist for this -- he will pay a heft fine, plus damages, maybe even disciplinary action. This aint what you will see in real life, this is a fairly unique train wreck.

 

[Law2Doc]

The lack of action by physicians has nothing to do with whether or not this can be done.

It does though. Successful ideas catch on. If there's money to be had, there will be folks doing it, and lawyers flocking to jump on board and get a piece of this action (and yes, many lawyers make good livings suing other lawyers for legal malpractice, so this isn't a circling the wagons situation). That it doesn't happen means it simply isn't a workable idea.

 

[Law2Doc]

For the legal minds in this thread, here's a hypothetical.

What about defamation law suits?

I.E. let's say I'm a physician and I have a poor relationship with a former patient. He/she commits slander/libel against me, saying/printing I'm addicted to painkillers, I screw my patients out of money by false billing practices, I'm under investigation to have my license taken away. Now assuming those are all false (and I can attempt to prove the former patient knows them to be false) is there any barrier to me pursuing legal action against them simply because our relationship use to be patient-phsycian?

Bringing that suit is fine, unless he committed this alleged slander/libel to you in a lawsuit or legal filings, in which case it's privileged.

 

[Sol Rosenberg]

As for being sued by association, when a plaintiff files a suit, he doesn't always know who was involved in the malpractice, so he tends to sue everyone in the OR or everyone who provided care to him during the admission, plus the hospital. Then as it becomes clear who did what, parties are dismissed from the suit.

I'm not clear that these claims are, indeed, not frivolous (by the legal definition.) Though I am probably not even half the legal scholar that you are, from Wikipedia:

In the United States, Rule 11 of the Federal Rules of Civil Procedure and similar state rules require that an attorney perform a due diligence investigation concerning the factual basis for any claim or defense. Jurisdictions differ on whether a claim or defense can be frivolous if the attorney acted in good faith. Because such a defense or claim wastes the court's and the other parties' time, resources and legal fees, sanctions may be imposed by a court upon the party or the lawyer who presents the frivolous defense or claim. The law firm may also be sanctioned, or even held in contempt.

If a plaintiff's attorney simply sues everyone involved with the plaintiff's care first, and asks to dismiss baseless claims later, is the attorney really performing a "due diligence investigation" of the plaintiff's claims? Is the attorney really acting in good faith? (Why not eliminate the baseless claims first -- before filing? No, "because it allows the attorney to get around the SOL" is not a valid answer in my opinion, though it may be the real reason why things actually happen this way.) The defendants of the baseless claims surely incur some cost in the preparation of their defense of the baseless claims, and it is my understanding that these costs are not normally ordered to be paid by the plaintiffs in these circumstances.

I agree with most everything that you have written, but where I feel the system is broken is in the "sue everybody first, ask questions later" philosophy that most malpractice attorneys pursue with impunity.

 

[Law2Doc]

If a plaintiff's attorney simply sues everyone involved with the plaintiff's care first, and asks to dismiss baseless claims later, is the attorney really performing a "due diligence investigation" of the plaintiff's claims? Is the attorney really acting in good faith? (Why not eliminate the baseless claims first -- before filing? No, "because it allows the attorney to get around the SOL" is not a valid answer in my opinion, though it may be the real reason why things actually happen this way.) The defendants of the baseless claims surely incur some cost in the preparation of their defense of the baseless claims, and it is my understanding that these costs are not normally ordered to be paid by the plaintiffs in these circumstances.

I agree with most everything that you have written, but where I feel the system is broken is in the "sue everybody first, ask questions later" philosophy that most malpractice attorneys pursue with impunity.

You have to realize that at this stage the attorney doesn't yet have access to the hospitals records, just what the patient is able to give him. He doesn't know for sure who did what, just usually an overview of what was done and what the hospital says when wrong. You don't get to depose people or make document requests until you file suit. So you go by what records you do have, and list everyone who potentially could have caused the error. Not because you are being mean or being lazy, but because the hospital and defendants are the only ones with the records and knowledge of what actually did go down, and at this stage they haven't given you access yet (and won't unless a court directs them to), so you are totally acting in "good faith" in trying to name the negligent party or parties. And the way the law is set up, it's easier to dismiss non-essential parties than add them later. So yeah, that's a glitch in the system. You have an overview of what went wrong, get an expert to step in and say, yeah, a severed ureter tends to be a deviation from the standard of care, and you have a list of who saw the patient in the OR. But you don't know who was handling the scalpel, who was responsible for the cut, what the folks in the OR did about it, and so on. And defendant's regularly will use the "empty chair" defense if you give them that option -- the person at fault is the guy who should have been sitting in that empty chair, because you foolishly didn't name him in the suit. So yeah, it's not an ideal system, and is a glitch as you suggest, but usually the legal costs aren't that significant until the first round of folks get dismissed out.

And again, these aren't baseless claims, by and large. They may not be claims for which a later dismissed defendant should be culpable, but that does not mean they are frivolous. If the case is truly frivolous, it gets thrown out and lawyers often get sanctioned. But this is actually pretty rare, and a recent Harvard Med study reiterated this.

The key issue in determining whether something is frivolous or not is whether a physician will come forward and testify as an expert. That makes the case legit. And doctors are singularly under the control of the profession. So if you don't like the idea of frivolous cases, however rare, then that's something you can take up with your profession, and try to create a rule regarding a doctors role as professional witness. Other fields have done this. Medicine takes a hands off approach, and it doesn't actually have to.