Title: How Doctors Can Combat Frivolous and Malicious Litigation

Author: Howard Smith, MD

Medical malpractice suits are a constant worry for doctors. While most of these claims are genuine attempts by harmed patients seeking justice, a segment is frivolous—claims filed with little to no foundation. Even more alarming are the lawsuits that veer into malicious prosecution territory, where the aim is not justice but extortion, retribution, or financial gain at the detriment of an innocent medical professional.

Typically, when a doctor “prevails” in a frivolous malpractice claim, the nightmare concludes, and they can move forward. However, emerging victorious in court—where evidence refutes claims with 95% confidence—places the physician in a unique position of authority. The legal battle doesn’t have to finish with acquittal. In specific situations, further actions can be pursued to hold those accountable for instigating unfounded or malicious claims. Notably, these actions frequently require no lawyer and minimal financial investment.

Differentiating Frivolous and Malicious Lawsuits

Although they share similarities, frivolous and malicious lawsuits have distinct characteristics:

– A case is deemed frivolous when it lacks legal foundation or adequate proof.
– A lawsuit becomes malicious when it is evident that the filer intended harm or deception.

Not every frivolous lawsuit is malicious, but all malicious lawsuits are fundamentally frivolous. Malicious claims entail a deliberate intent to mislead or financially harm the defendant. Demonstrating this intent is traditionally quite challenging and can be costly, often necessitating legal representation and the handling of intricate litigation.

Nonetheless, when a lawsuit is dismissed or when the physician triumphs with clear evidence—indicating 95% confidence of innocence—there is a chance to change from a defensive to an offensive strategy.

The Impact of Relativism in Legal Ethics

The Attorneys Rules of Professional Conduct govern attorney behavior and explicitly disallow the filing of frivolous claims. However, these regulations are frequently enforced with a measure of situational ethics—or relativism. For instance:

– A missing merit certificate isn’t always misconduct—it may be permissible if additional time is needed to obtain an expert witness.
– If a case is lodged with just a 51% likelihood of success (the civil litigation threshold), it is not deemed misconduct, even if it ultimately proves unsuccessful.

These leniencies offer unscrupulous individuals legal protection. A mere 1% chance of merit can be utilized to evade accusations of bad faith, provided they stay within the ambiguous grey area defined by “Paragraph 9” of the preamble to the Rules of Professional Conduct.

Yet, when a court decides in favor of a physician with 95% confidence, this stark disparity reveals the suit’s true character: not as a result of “zealous advocacy” but as a case of deceitful manipulation.

The Perpetrators: Beyond Just Litigious Patients

It’s a fallacy to think only dissatisfied patients initiate meritless lawsuits. Often, other entities play a considerable role:

1. Plaintiff Attorneys (“Ambulance Chasers”)
– These lawyers twist legal standards and misrepresent medical criteria.
– Driven by financial incentives from wealthy defendants and contingency fees.

2. Medical Expert Witnesses (“Hired Guns”)
– Certain medical experts might selectively misinterpret evidence, disregarding exculpatory information.
– Their motivation? High compensation from plaintiff attorneys ready to pay for biased testimonies.

Both groups disregard their professional responsibilities for integrity and impartiality. Their actions add to the mental, emotional, and financial strain faced by wrongly accused doctors.

The Way Forward: Ensuring Accountability for Wrongdoers

Doctors who succeed in frivolous or malicious claims don’t need to stop at their victory. They can, and arguably should, seek further accountability—often at minimal or no cost.

There are two main pathways:

1. File a Grievance Against the Plaintiff Attorney
– Every state has a regulatory body overseeing legal ethics.
– Successful doctors can submit grievances citing misconduct, including the initiation of a knowingly baseless lawsuit or coercive legal strategies.
– These complaints are examined by a peer committee, and notably, no attorney is needed to file such a grievance.

2. Lodge a Complaint Against the Medical Expert
– Likewise, physicians can notify the state medical board of unethical conduct by opposing expert witnesses.
– Such actions are warranted when an expert has materially misled the court by fabricating negligence based on selective data or unfounded conclusions.
– As medical professionals bound by a code of ethics, such deceit is actionable and deserving of scrutiny.

These complaints don’t necessitate any financial outlay on the part of the physician. Even if they don’t lead to formal penalties, the mere act of filing sends a strong message: Misusing the legal and medical systems for personal gain carries serious repercussions.

Leveraging the Rules—In a Different Manner

Crucially, this strategy doesn’t demand new