In line with my previous posts that explain how to resolve all medical malpractice lawsuits, especially frivolous ones, at the lowest possible cost for the physician and the malpractice carrier, this article addresses a malicious medical malpractice lawsuit. Malicious lawsuits deserve something more. Not only are they all frivolous, but they should exact a cost from those who seek to profit from them.
On June 19, 2018, a patient signed a six-month contract for services with my former employer. She first met me on June 29, 2018. On August 8, 2018, upon her return from vacation, she was hospitalized by other health care providers for flu-like symptoms and a tickborne illness that accompanied a transient elevation of liver enzymes.
She was discharged on August 9, 2018, with the diagnosis of transaminitis. Upon discharge, a note from her PCP advised a cancellation of the contract because it was most likely that the liver damage was caused by a medication I prescribed. I do not doubt the transient elevation of liver enzymes. I doubt iatrogenic liver damage. When seeing the note, I advised that the patient discontinue her contract. My recommendation depended upon the approval of the VP of operations at the clinic. I never saw the patient thereafter. The story should end here.
Three years later, no longer an employee at the clinic, on September 15, 2021, I was served with a $2.9-million malpractice lawsuit. The patient alleged a litany of departures from standards of care and tortious misconduct which caused her serious injuries that led to her hospitalization and from which she had yet to recover. To make a long story short, there was no liver damage and by the end of January 2022, I was dismissed with prejudice. The story should end here.
I prevailed. I know I have two options:
Let sleeping dogs lie: This may be preferable but there would be no penalty for malice.
Sue: An attorney would want a $10,000 retainer.
However, my damages were small. I will represent myself. On December 28, 2022, I filed a lawsuit against the patient in small claims court. To the best of my knowledge, this was the first time a small claims court was used in this fashion.
My proof that this lawsuit is malicious depends on six criteria:
First: The lawsuit is initiated by the patient. The Complaint proves this.
Second: The lawsuit concludes in my favor. Dismissal with Prejudice proves this.
Third: The lawsuit is frivolous. A letter from the medical expert for the plaintiff states that there is no injury, no departure from standards of care, and no causation; therefore, there are no reasonable grounds to initiate a medical malpractice lawsuit.
Fourth: The patient acts out of malice. Malice is difficult to prove. However, the patient’s attorney establishes the circumstances. In a letter, he undeniably admits that he retains the medical expert; however, he proceeds to sue knowing there is no certificate of merit and no expectation of obtaining one. When he does so, he attaches a “Warning” to the lawsuit. “Warning” gives public notice that the lawsuit contains defects. Indeed, it does; the allegations are fabricated by the patient and there is no medical expert. The patient signs the “Warning.”
The “Warning,” by no means, excuses the attorney, but my dispute is not with the attorney. The patient owes me a duty to do what is decent and drop the case as soon as the defects are known. The attorney’s complicity is a separate issue. If malice is wanton disregard for the truth or for common decency, the attorney establishes that the patient’s state of mind is wanton and reckless disregard for both the truth and common decency. “Warning” is no accident.
Furthermore, the business log of my employer clearly documents that the patient, first, cancels her contract on July 16, 2018, one month before the events in question. This suggests a patient who is unhappy with the clinic. What follows is that the contract is reinstated on July 17, 2018, because my employer accepts this cancellation as a standard cancellation, which results in 60 days of penalties. Ultimately, there is a medical cancellation on August 10, 2018, which avoids those penalties. This all suggests that this lawsuit is more about retaliation for a contract dispute with my employer than it is about medical malpractice.
Fifth: My damages. An invoice from my attorney for $1,430 proves this. I ask for a total monetary judgment of $5,000, which includes $3,570 for punitive damages.
Sixth: The burden of proof is clear and convincing evidence. I prove this by using the scientific method, which is hypothesis testing using a significance level of 0.05, equivalent to 95 percent confidence, corresponding to clear and convincing evidence.
This is what I presented to the court on August 7, 2023. In court were the patient, the attorney, another attorney, and the judge. After I presented my case, the attorney moved to have a directed verdict. The judge apologetically granted the motion, admitting to being sympathetic to the fact that there were no grounds to sue me in the first place.
I could have objected to the attorney’s motion; however, I decided that, in the big picture, it is more advantageous to let the dice fall as they may. The judge could have denied the motion until hearing all testimony, but allowing the motion precluded this, which spoke volumes about the objectivity of the court in this matter.
This lawsuit cost me $102. It cost the State of Maryland, the patient, and two attorneys a lot more. If I wanted to exact a toll for filing a malicious medical malpractice lawsuit, mission accomplished. If the proceedings in small claims court opened a rift between the patient and the attorney, all the better. Not bad for $102.
Howard Smith is an obstetrics-gynecology physician.