Until now, when a lawsuit is frivolous, once a doctor who is the defendant prevails, the case concludes. However, there is a next step. Whether it is taken depends on this doctor.
Prevailing means there is 95 percent confidence that the lawsuit is frivolous. Not every frivolous lawsuit is malicious; however, every malicious lawsuit is frivolous. Malice is actionable.
As of now, malicious prosecution cases are difficult and expensive to prove because malice must be intended, and proving intention requires an attorney. If malice is dependent on a scintilla of 1 percent, which easily fosters the false impression of no intention, what happens when intention can be proven with 95 percent confidence? Also, what happens when remedies are sought in a forum that does not require an attorney?
The strategy, which I promote in the previous post, is one means to do so. It does not change the rules for malice; it just uses the rules in a way provocateurs of a malicious lawsuit never anticipate.
Some claimants have ill intentions. They are not so innocent and exploit any complication, whether the claim is meritorious or not. They do so for two reasons: First, because they are sympathetic victims of misfortune; second, because they intend to extort money from the doctor.
It is not just bad-faith claimants who cause malicious lawsuits. There are other nemeses.
There are plaintiff attorneys who are ambulance chasers. Ambulance chasers garble the rules of legal process and the standard of care. They do so for two reasons: First, because they can; second, because they know that doctors have deep pockets—medical malpractice insurance.
There are medical experts who are hired guns. Hired guns show complete disdain for the rules of objectivity by selecting certain observations in medical records that implicate negligence and excluding other observations that are exculpatory. They do so for two reasons: First, because they can; second, because they know that plaintiff attorneys pay them for doing so.
Both can also be held accountable in very cost-effective ways.
The Attorneys Rules of Professional Conduct calls for disciplining attorneys who violate rules. Intentionally filing frivolous, if not vexatious, lawsuits certainly violates rules. Yet, until now, the legal profession has turned a blind eye to such violations.
The reason is relativism or situational ethics. Paragraph 9 of the preamble in the Attorneys Rules of Professional Conduct exemplifies relativism. A violation of a rule is not always as it appears.
For instance, if a lawsuit is filed without a certificate of merit, it is not necessarily misconduct just because a lawyer requires additional time to find a medical expert. It is just as likely that a certificate of merit will be forthcoming by allowing more time.
Likewise, if a lawsuit is argued to have 51 percent probability of merit, it is not necessarily misconduct just because a jury finds otherwise. It is just as likely that prosecuting this lawsuit is zealous advocacy by the plaintiff counsel.
These are not violations of the rules.
Nevertheless, the relativism expressed in Paragraph 9 essentially excuses a violation of a rule because it all depends on what it is. In this case, it is a scintilla. When a scintilla of 1 percent stands in stark contrast to a scintilla of 45 percent, and a probative value of 51 percent stands in stark contrast to 95 percent, there is no excuse for the failure to provide a certificate of merit when a frivolous lawsuit is filed. Nor is overzealous advocacy an excuse for the prosecution of a frivolous lawsuit. Filing and prosecuting a frivolous lawsuit violates rules; violating rules is cheating, and cheating is misconduct. Hence, a lawsuit can be proven to be malicious.
The medical profession is no different. It, too, is self-governing, and it, too, tends to cast a blind eye. Also, there is a code of ethics. Relativism plays a role. Again, relativism considers circumstance. When a frivolous case is tried in court, it is not necessarily because of misconduct by a medical expert hired by the plaintiff attorney. It is just as likely that there is an honest difference of opinion between two medical experts. Still, relativism is no excuse for not doing the morally correct thing.
Every doctor who prevails in a frivolous malpractice lawsuit is in a unique position to do something. They can prove that the plaintiff’s attorney and the expert witness who is retained intentionally fabricate negligence. If merit is dependent on a scintilla of 1 percent, what happens when the absence of merit can be proven with a scintilla of 45 percent? Finders of fact will have to acknowledge that 95 percent confidence, which is the sine qua non for science, stands in stark contrast to 51 percent confidence. A medical expert is a scientist. Hence, an expert that maintains a scintilla of 1 percent is dismissive of a professional standard.
Under these circumstances, for plaintiff lawyers, a frivolous lawsuit is not zealous advocacy when it is self-interest. For medical experts, an opinion is not objective when it is a fabrication.
Doctors who are defendants are potential game changers when it comes to holding ambulance chasers and hired guns accountable for provoking a frivolous and/or a malicious lawsuit. The methodology referenced herein is their means to do so.
Just as a claimant who is malicious can be held accountable in a small claims court at little to no cost for a doctor, so too can an ambulance chaser and a hired gun. It just takes filing a grievance with the state’s peer review commission when the nemesis is a lawyer or with the state’s medical board when the nemesis is a medical expert. It costs the defendant in a malicious lawsuit little to nothing, but it sends a decisive message about the consequences of ever messing with a doctor when it comes to a frivolous medical malpractice lawsuit.
The outcome of such proceedings is less important than the proceedings themselves.
Howard Smith is an obstetrics-gynecology physician.
