Wait, What Did He Just Say? Countersuits in Medical Malpractice Cases

Post Authored by Alexandra M. Verven

Imagine you’re a physician on the receiving end of a medical malpractice lawsuit. You’ve been served with a complaint, supported by a 2-622 written report criticizing your care of the plaintiff. In a deposition, when confronted with these allegations, the plaintiff’s expert admits that the allegations contained in his 2-622 report against you were not only false and without merit, but also unethical and unprofessional. Can you sue the plaintiff’s expert for defamation?

The short answer is no, but this does not mean you are left without a remedy. In general, statements made by witnesses as part of a judicial proceeding are given absolute privilege, which means they cannot be considered defamatory. See Restatement (Second) of Torts § 588 (Am. Law Inst. 1977). This is true even if the defamatory statements are not confined to a specific issue in the litigation. Further, the term “as part of a judicial proceeding” is broadly interpreted to include all proceedings where an officer or court exercises judicial functions, such as a deposition. Id. The law offers broad protection for these types of statements for the purpose of the “administration of justice,” as found in Comment A in Section 588 of the Restatement (Second) of Torts. If witnesses do not fear private suits for defamation, they will willingly come forward with their testimony. Id. at cmt. a.

While a defamation claim might not be possible in this context, an alternative cause of action may arise under a theory of malicious prosecution brought by the plaintiff. To be successful, a plaintiff in a malicious prosecution case (for example, the physician) must allege and prove: (1) the commencement or continuation of an original civil or criminal proceeding, (2) termination of the proceeding in her favor, (3) absence of probable cause for the proceeding, (4) presence of malice, and (5) damages resulting to her. Grundhoffer v. Sorin, 2018 IL App (1st) 171068. Notably, when the underlying cause of action involves claims for medical negligence, the plaintiff does not need to prove “special damages.” 735 ILCS 5/2-109. This eases the burden of proof.

To determine whether the favorable termination requirement has been met, Illinois courts have adopted the Restatement approach, which looks at the circumstances the disposition was obtained. Terminations obtained through summary judgment and involuntary or voluntary dismissals satisfy this requirement; however, neither settlements nor do dismissals pursuant to settlement satisfy it. Cult Awareness Network v. Church of Scientology Int’l, 177 Ill.2d 267 (1997). “Probable cause is defined as a ‘set of facts that would lead a person of ordinary caution and prudence to believe that he had a justifiable claim against the defendant.’ ” Grundhoffer, 2018 IL App at ¶ 14 (quoting Keefe v. Aluminum Co. of America, 166 Ill. App. 3d 316, 317 (1988)). To prove malice, the physician must establish that the plaintiff in the underlying action had improper motives for bringing the action. Miller v. Rosenberg, 196 Ill.2d 50 (2001).

Last, attorneys should be aware of this cause of action, because a malicious prosecution claim can also be brought against an attorney. See Berlin v. Nathan, 64 Ill. App. 3d 940 (Ill. App. Ct. 1978) (noting that a suit for malicious prosecution can be brought against an attorney since the attorney cannot always justify himself merely by showing that he followed his client’s instructions). If an attorney acknowledges there is no cause of action, and knowingly and improperly files suit, or acts knowing that his client has no just claim and has illegal or improper motives, the attorney may be held liable for malicious prosecution. Id.

About the Author:

Alexandra Verven.jpgAlexandra Verven is an associate attorney with the law firm of Barker, Castro, Kuban & Steinback LLC. Alexandra has concentrated her practice in the area of medical negligence serving in the defense of hospitals, physicians, and medical staff members. Her medical malpractice defense work involves pre-litigation investigation and counseling, as well as guidance and recommendations to her clients in various risk management strategies. She also handles a wide variety of civil defense litigation where she represents not-for-profit organizations and health care facilities in cases involving premises liability and personal injury. Prior to joining Barker, Castro, Kuban & Steinback LLC, Alexandra worked as a law clerk at one of Chicago’s prevalent plaintiff litigation firms, where she gained invaluable experience she uses to defend her current clients.



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