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This is a fairly common question posed by physicians who feel victimized by baseless medical malpractice actions. It is normal for one who feels wrongly accused to desire retribution from the individual who caused him to endure the stress of a lawsuit. Once the system has vindicated the doctor’s conduct, shouldn’t the plaintiff (or the plaintiff’s attorney) be held accountable? Unfortunately, the answer is a classic legal response: It depends.

The following is a general discussion of the requirements the law has defined for malicious prosecution actions and of the difficulties that may be encountered by one who seeks to pursue such a claim. In general, such actions are disfavored by the law and it is difficult to prevail unless the facts are egregious and the evidence is clear.

Of course, this article cannot begin to address the nuances of each specific case that might arise. Questions about the viability of a malicious prosecution action in the context of a specific situation should be directed to your attorney.

Just as a patient who sues a doctor for malpractice must prove certain legal elements to prevail, the same is true for a physician who files a suit for malicious prosecution. The physician must establish the following:

1. The underlying action was brought by or at the direction of the patient and was pursued to a legal termination in favor of the physician.

Case law has limited the types of matters that fulfill this element. For instance, a claim for malicious prosecution is not available where the malpractice action is resolved through contractual arbitration, or where the malpractice case is brought in small claims court. While claims that lead to administrative actions (such as medical board proceedings) can technically give rise to a malicious prosecution claim, the numerous immunities and defenses available to the patient and the agencies in that context serve to undercut the practical wisdom of pursuing such a course.

How does one know if a matter has been “legally terminated” in the physician’s favor?

In general, a matter has been legally terminated in the physician’s favor when the trial court enters a judgment for the physician. This does not mean that the case is required to proceed to a jury trial, as a judgment following a successful motion for summary judgment can also fulfill this requirement. In addition, a dismissal (voluntary or involuntary) of the malpractice case can also provide the basis for arguing that the matter terminated in the physician’s favor. The courts have distinguished, however, between judgments and dismissals obtained due to the lack of merit of the case and those obtained for technical reasons, such as untimely filing, etc. The trend in the law is toward treating only those judgments and dismissals based on the underlying merits of the action to qualify as a “favorable termination” giving rise to an action for malicious prosecution.

2. The malpractice action was brought without probable cause.

“Probable cause” is another legal phrase that carries its own specific requirements of proof. Basically, an action is brought without probable cause where a reasonable person, given the circumstances, would be satisfied that there is no basis for filing suit. A patient may escape liability for malicious prosecution of a malpractice action where the patient acted in good faith in consulting an attorney and honestly acted upon the attorney’s advice that the patient had a good faith cause of action against the physician.

In an action against an attorney for filing a frivolous suit, the relevant inquiry is whether a reasonable attorney would have thought the claim against the physician was plausible. This determination is based only on the facts known to the attorney at the time the suit was filed. The attorney’s failure to perform adequate legal research before filing the suit is irrelevant to the analysis of probable cause. In addition, the attorney is entitled to rely on the truthfulness of information represented to her by the patient and used by the attorney to determine whether to file a suit. Recent case law has limited this rule, holding that an attorney can be sued for malicious prosecution if she continues to pursue a lawsuit after learning that the case was based on false information.

3. The action was initiated with malice.

Lastly, the physician needs to prove that the patient or his attorney was motivated by actual ill will or some other improper purpose in initiating the malpractice suit.

Examples of malice cover a range of motivating factors, including bad faith, the lack of an honest belief that the malpractice action was tenable, and/or the intent to injure the physician by filing suit.

It is important to realize that proof that an action lacked probable cause does not automatically establish the element of malice. In other words, the fact that a patient or her attorney acted unreasonably in bringing suit is not sufficient without also proving some form of improper motive or purpose. This cautionary rule works in reverse as well: Evidence of actual malice does not automatically prove that the action lacked probable cause. In other words, if reasonable grounds exist for filing suit, the patient’s vindictive motives are irrelevant.

The legal theory of malicious prosecution strikes a precarious balance between the right of access to the court system on one hand and protection from vexatious litigation on the other. The result, as reflected by the case law trends over the past several years, is a set of rigorous standards that amount to an uphill battle for most malicious prosecution claimants.

At the conclusion of this article, one might research the opinion that the answer to the initial inquiry “Can I sue for malicious prosecution?” is more accurately, “Probably not.”

While it is generally quite difficult to establish a viable case for malicious prosecution against a patient who has unsuccessfully sued you for malpractice, you should feel free to voice your concerns and frustrations with your defense counsel. Even where malicious prosecution is not an option, there may be other ways to limit a baseless malpractice case. Depending on the circumstances, procedures are available by which meritless theories of liability can be identified and disposed of early in the course of the malpractice case. In addition, the law provides for sanctions against litigants and/or their attorneys for specific frivolous or dilatory tactics.