OSMA Connect to Justice

addressing FRIVOLOUS LITIGATION AGAINST PHYSICIANS

OSMA has over time continued to receive complaints from its members regarding frivolous professional liability litigation. These complaints arise from situations in which physicians are named as defendants in professional liability litigation which reasonable due diligence would have revealed that no negligence was involved on the part of the specific physician. In these instances a physician has been named as a defendant solely because he or she treated or is alleged to have treated the injured party during the course of the patient's medical treatment. Historically, physicians have had little success in obtaining relief through the judicial process for an attorney's failure to exercise reasonable due diligence or in some instances for an attorney's flagrant abuse of the judicial process.

According to traditional judicial philosophy, access to the courts must be maintained so that an injured party with a plausible cause of action may seek judicial relief, even if that party is ultimately unsuccessful. In addition, plaintiff counsel argue that they are unable to better identify the appropriate physician defendants because of the so called "conspiracy of silence" which prevents plaintiff counsel from ferreting out the responsible party early in the litigation process. As has been stated repeatedly during OSMA's tort reform campaign, physicians do not oppose injured patients obtaining either judicial relief or compensation for their direct losses and injuries if caused by a physician. What physicians oppose is reckless disregard for the facts surrounding a specific patient's injury, which results in a physician needlessly, and wrongfully, being named as a defendant. When this happens a physician must retain defense counsel, spend time assisting in his/her defense and, most importantly, must notify the physician's professional liability carrier. Notification of one's carrier of even a frivolous lawsuit is likely to result in increased premium cost to the individual physician. Carriers assert that they
must cover the costs of defending frivolous suits.

Based upon the information currently available, it would appear that a "Motion for Sanctions for Frivolous Conduct" is the most likely avenue of recourse. The likelihood of obtaining a favorable ruling is greater with this strategy rather than a separately initiated suit based upon either abuse of process or malicious prosecution. A separately initiated lawsuit for abuse of process or malicious prosecution must overcome a high threshold for success in that the complaining physician would have to overcome such obstacles as demonstrating material damage and proving that the defendant attorney had malicious intent. In contrast, a motion for sanctions could succeed if the complaining physician demonstrated successfully that the lawyer did not act reasonably or that he did not take an action he should have.

The Typical Process

Generally a motion for sanctions is filed after the physician's defense counsel in a professional liability action filed and was granted a motion for summary judgment. The motion for summary judgment to dismiss the physician from the professional liability action is likely to be obtained after legal fees have been incurred and the physician has spent at least an hour with defense counsel explaining the reasons the physician should be dismissed from the case.

During this time a physician prepares an affidavit attesting to the facts relating to the physician's involvement or lack of involvement with the alleged negligent care. After the physician is dismissed from the case and a motion for sanctions for frivolous conduct is filed, a memorandum in support of the motion is filed, a reply memorandum in opposition to the motion is filed and the same judge who dismissed the physician from the case issues a decision on the motion. This process conceivably lasts about two to three months in Ohio courts.

Click the links below for more information about how to pursue a motion for sanctions if you believe you are involved in a frivolous lawsuit.