Lawyers successfully sued by doctors for filing frivolous lawsuits

Robert H. Aicher, Esq., Sonoma, CA , is general counsel to ASAPS. After winning a frivolous medical malpractice case, a doctor's thoughts often turn to revenge, historically the remedy of choice for wrongs unjustly inflicted. Because society's greater need is for civil stability in such matters, the doctor's only option is to file a lawsuit against the patient or his or her lawyer for malicious prosecution.Such lawsuits were originally designed to provide a remedy for defendants wrongly charged with crimes, inasmuch as dire consequences could result from the malicious prosecution of innocent citizens by the state. This right to redress was later expanded to include civil lawsuits. However, because civil litigants suffer only loss of property and not loss of life or liberty, as they do in criminal prosecutions, civil actions for malicious prosecution are disfavored to promote free access to the court system without fear of retribution if such a case is lost.Because of the unfavorable status of malicious prosecution, many states treat civil and criminal lawsuits equally and require doctors to prove that they have been arrested or have had their property seized in order for them to recover for damages. This is called the “English rule.” In such states, doctors lose, because only rarely in medical malpractice trials are doctors physically taken into custody for failure to comply with court orders, prevented from practicing medicine, or …