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    Planning your next move when wrongly accused of medical malpractice

    Countersuing may be tempting, but other paths could be more productive


    Getting sued for malpractice is every doctor's nightmare. The fact that more than 42% of physicians have been sued during their careers, according to an American Medical Association survey, provides little solace. The public assault on your reputation and the emotional anguish you'll face can be devastating even when the lawsuit is completely frivolous.

    In some notorious cases, plaintiffs' attorneys have sued the wrong doctor about a patient he never even met, refused to drop a lawsuit despite having no expert witness until the physician made a settlement offer, and re-filed a case against a doctor when the plaintiff's own expert said no negligence existed.

    Courts sanctioned the attorneys in those cases, but egregious behavior by plaintiffs, their attorneys, and expert witnesses continues to flourish and usually goes unpunished. The desire by physicians to retaliate against these sleazy tactics is palpable. If you find yourself in such a situation, turning the tables on these adversaries would provide some emotional satisfaction for the havoc they've wrought in your life.

    Lee J. Johnson, JD
    Unfortunately, filing a countersuit is an expensive, years-long endeavor that is likely to fail. "To have any chance of winning in court, you'd have to prove that the case against you had been completely groundless or filed maliciously," says Lee J. Johnson, JD, a New York health law attorney and Medical Economics editorial consultant. "The issue usually comes down to a matter of opinion, no matter how foolish you think the allegations were."

    Countersuits rarely succeed for plenty of other reasons, and we'll discuss those later.

    Despite the odds against them, more doctors and their medical societies are fighting back against dishonest lawyering and bogus witness testimony. They've scored some impressive victories.

    Jeffrey Segal, MD, JD, FACS
    "Physicians are justifiably outraged by frivolous lawsuits, and there are steps they can take against the lawyers and experts involved, even when a countersuit might not be the best tactic," says Jeffrey Segal, MD, JD, FACS, a neurosurgeon who launched Medical Justice, an insurance company that provides physicians with legal resources to fight frivolous suits and bring complaints before bar associations, state licensing boards, and professional medical societies.

    Here are some of the victories.

    • Court sanctions attorney who sued the wrong doctor

    Ob-gyn Ward P. Vaughan, MD, was sued in 2004 over an obstetrical procedure performed at a Front Royal, Virginia, hospital where he's never had privileges. He also never had met the patient.

    Plaintiff's attorney Michael P. Weatherbee, JD, reviewed an operative report that noted the lead surgeon was assisted by "Bob Vaughan," according to court records. Several Vaughans were listed on the Virginia Board of Medicine's Web site, and Weatherbee wrongly assumed he'd picked the correct one to sue.

    The unjustly accused Vaughan ultimately was dismissed from the case and then filed a complaint with the Virginia State Bar Association. An investigation quickly determined that Weatherbee had committed professional misconduct, including filing a frivolous lawsuit and failing to act with competence and diligence.

    Although the penalty was merely a public reprimand, Weatherbee appealed to the Virginia Supreme Court, which unanimously upheld the finding.

    The high court noted that Weatherbee did not take even "simple" steps to adequately research Vaughan's involvement, such as verifying his hospital privileges or contacting his office regarding the patient's medical records.

    "The lawsuit had a deleterious impact upon Dr. Vaughan's practice," the court held. "He lost patients, and he was subjected to ridicule and scorn. A local radio station repeatedly informed its listeners, approximately once each hour for a full day, that Dr. Vaughan had been sued for medical malpractice. Also, the litigation against Dr. Vaughan was reported on a local television station."


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