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The Current Status of Medical Malpractice Countersuits

Published online by Cambridge University Press:  24 February 2021

David J. Sokol
David J. Sokol*
Affiliation:
University College, New York University, New York University College of Dentistry, Pace University School of Law anticipated
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Abstract

The dramatic growth of medical malpractice litigation in recent decades has contributed significantly to an overall increase in health care costs in this country. Although lawmakers, physicians, and other responsible citizens have proposed numerous solutions in an effort to curb die crisis, diese proposals have generally been ineffective.

In this Article the Audior endorses countersuits as die most appropriate response to frivolous medical malpractice actions. The Author also suggests that contingent fee systems, coupled with the economic motivation of private insurers to settle claims quickly, provide incentive for plaintiffs to initiate frivolous claims.

This Article analyzes the general legal approaches available for countersuits, emphasizing recent successful actions based on malicious prosecution and abuse of process, and proposes more widespread use of diese approaches.

Type
Articles
Information
American Journal of Law & Medicine , Volume 10 , Issue 4 , Winter 1985 , pp. 439 - 457
Copyright
Copyright © American Society of Law, Medicine and Ethics and Boston University 1985

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Footnotes

**

Hereinafter the term “medical” will be used to include all legally recognized health disciplines and “practitioner” or “physician” will be used to include all professionals engaged in these disciplines.

References

1 U.S. Dep't. of Health, Education & Welfare, Medical Malpractice Report of the Secretary’s Commission on Medical Malpractice (1973) [hereinafter cited as HEW Report]; Special Advisory Panel, State of New York, Report of the Special Advisory Panel on Medical Malpractice, State of New York 234-55 (1976)Google Scholar [hereinafter cited as New York Report]. These reports were prepared in recognition of the medical malpractice crisis of the 1970s partially in response to the concern of the medical profession.

2 See generally Havighurst, , Medical Adversity Insurance—Has Its Time Come?, 1975 Duke L.J. 1233Google Scholar; Havighurst, & Tancredi, , “Medical Adversity Insurance"—A No-Fault Approach to Medical Malpractice Insurance, 51 Milbank Memorial Fund Quarterly Health and Society 125 (1973)CrossRefGoogle Scholar (a discussion of possible “no-fault" system for handling untoward results of medical care); Note, The Massachusetts Malpractice Plaintiff’s New Hurdles: The Expanding Role of the Medical Malpractice Screening Tribunal, 8 Am. J.L. & Med. 481 (1983)Google Scholar [hereinafter cited as Screening Tribunal] (screening tribunals, which must hear all medical malpractice claims before they reach the courts, should be limited to deciding issues concerning medical treatment and the professional conduct of physicians and hospitals; issues of hospital liability and other unsettled areas of substantive law of medical malpractice should be beyond their scope).

For a comprehensive discussion of physicians’ response to the malpractice crisis in the 60s and early 70s, see Birnbaum, , Physicians Counterattack: Liability of Lawyers for Instituting Unjustified Medical Malpractice Actions, 45 Fordham L. Rev. 1003 (1977)Google Scholar (“A more constructive use of an award of attorneys’ fees in medical malpractice cases could have the positive effect of discouraging the prosecution of unjustified litigation, without having a chilling effect on meritorious litigation.”).

3 See generally ABA Comm. on Medical Professional Liability, Informational Report, Appendix B (1976)Google Scholar [hereinafter cited as ABA Report] (notes that in 1975, 25 states took some legislative action pertaining to medical malpractice insurance). See also Birnbaum, supra note 2, at 1077 (review of legislation aimed at discouraging the prosecution of unjustified medical malpractice actions); Note, Medical Malpractice Screening Panels: A Judicial Evaluation of Their Practical Effect, 42 U. Pitt. L. Rev. 939, 941 (1981)Google Scholar [hereinafter cited as Screening Panel]. (By 1980, 48 states had created some form of remedial legislation, with 28 states providing for screening panels); Note, Medical Malpractice Mediation Panels: A Constitutional Analysis, 46 Fordham L. Rev. 322, 353 app. IV (1977)Google Scholar [hereinafter cited as Mediation Panels] (listing of mediation panels and arbitration statutes in 28 states).

4 Birnbaum, supra note 2, at 1003 (“The dramatic increase in the frequency of medical malpractice actions as well as the size of individual awards has created a crisis situation in several states . . . .”); see Densmore, , Malpractice reform: NY’s Ready and Florida is Working on a Plan, 1983 Mod. Healthcare 99 (Apr. 1983)Google Scholar (New York State Coalition of hospitals, physicians and insurers propose legislative responses to malpractice crisis); Havighurst & Tancredi, supra note 2; Ritter, & Brooks, , Rx for Physicians: A capsule on Countersuits, 7 W. St. L. Rev. 63 (1979)Google Scholar.

5 See generally New York Report, supra note 1; Birnbaum, supra note 2, at 1004; HEW Report, supra note 1, at 33-34; Busath, , The Contingent Fee: Disciplinary Rule, Ethical Consideration, or Free Competition?, 26 Dent. Clin. N. Am. 341, 349 (1982)Google ScholarPubMed.

6 For instance, the New York State Superintendent of Insurance recently granted a company’s request for a 52% increase in medical malpractice insurance rates. As a result of this increase, neurosurgeons in some regions of the state will pay $101,000 per year in premiums. N.Y. Times, Jan. 15, 1985, Al, col. 2. See also Sandrick, , Remedy for Frivolous Malpractice, 15 Private Practice 21 (Mar. 1983)Google Scholar (while professional liability rates have increased only moderately in the last few years in Michigan and physicians may have “recovered from the sticker shock,” rates are expected to continue to rise because of the continuing wave of litigation).

7 HEW Report, supra note 1, at 20; Ritter & Brooks, supra note 4, at 63.

8 HEW Report, supra note 1, at 20 (quoting Dr. George Northrup). See also Malcolm, , Fear of Malpractice Suits Leading Some Doctors to Quit Obstetrics, N.Y. Times, Feb. 12 , 1985, AlGoogle Scholar, col. 1-2. In this article, one physician states his reasons for leaving the field of obstetrics as follows:

I'll tell you why I quit after 10 years of delivering babies. It just got to be too much hassle for the return. It’s not just the disruption of your life 24 hours a day. It’s a whole atmosphere of confrontation now between doctors and patients. We believe someone must always be at fault. We're suing car makers, why not baby makers?

As another pointed out, these confrontations never benefit the physician: "You may have documentation to defend yourself. But, you still go through hell for one, two, three years of depositions and hearings and you may win. But by then you've already lost."

9 See Jankelson v. Cisel, 3 Wash. App. 139, 473 P.2d 202 (1970) (dentist’s recovery for slander). Despite the fact that these attacks may damage a doctor’s reputation, the law of defamation offers little chance of recovery. See, e.g., Ritter & Brooks, supra note 4, at 69. (Defamation actions are of “minimal utility due to the absolute privilege recognized for statements made in any judicial proceeding, if the statements have some relation to the proceedings.”). See generally Mechanic, , Some Social Aspects of the Medical Malpractice Dilemma, 1975 Duke L. J. 1179, 1180 (1975)CrossRefGoogle Scholar (“[T]he costs to the physician must be weighed not only in terms of the awards actually made, but in terms of the total costs becoming entangled in such an incident. A claim made against a conscientious physician may cause him considerable suffering and may distract him from his best efforts.”).

10 Sandrick, supra note 6, at 21.

11 DeVito, , Abuse of Litigation: Plague of the Medical Profession, 56 N.Y. St. B.J. 23 (1984)Google Scholar.

12 See generally Birnbaum, supra note 2 (analyzing approaches to countersuits); Carlova, , “Shotgun" Malpractice Suits Suffer a Costly Setback, 58 Med. Econ. 29, 34 (July 6 , 1981)Google Scholar (At time of article there were reportedly 122 countersuits pending in 28 states); Love, & Willingham, , Physicians’ Counterclaims and Remedies Against Baseless Claims, 72 J. Med. A. Ga. 509 (1983)Google Scholar (describing trends in use of various causes of action in Georgia); Ritter & Brooks, supra note 4, at 63 (describing various causes of action); Sandrick, supra note 6, at 22 (describing countersuit litigation in Michigan); Singer, , Countersuit Litigation, 26 Dent. Clin. N. Am. 389 (1982)Google ScholarPubMed (analysis of countersuit litigation); Taub, , Malpractice Countersuits: Succeeding at Last?, 9 Law, Med. & Health Care 17 (1981)CrossRefGoogle Scholar (describing recent trends in countersuit litigation); 12 Prof. Liability Newsletter no. 5, Feb. 1981 (analyzing Etheredge v. Emmons, No. 499691-6 (Alameda Super. Ct. Feb. 1981) and providing background to malicious prosecution actions in California).

13 Modern medicine is a sophisticated discipline but one which still requires more art than science. Despite the advance in diagnostic approaches and technology such as Mammography and Thermography, Computer Assisted Tomography (CAT) Scans, Nuclear Magnetic Resonance (NMR) Scans, and Ultrasonic Visualization Techniques, and the advances in surgical techniques and methodology such as microsurgery, open heart surgery, cryosurgery and laser techniques, the physician must still make countless individual judgments and decisions.

14 See Ursu, , The Medical Malpractice Dilemma, 26 Dent. Clin. N. Am. 215 (1982)Google ScholarPubMed.

15 The trends apparent in the medical field are being mirrored and replayed some ten years later in what appears to be the beginning of a dental malpractice crisis. The annual number of dental malpractice claims has grown tenfold during the past ten years with the average settlements rising comparably. Remba, , Malpractice: Coming to Grips with a Daily Reality, A.G.D. Impact May 1984Google Scholar. In addition, awards in excess of $100,000 have been reported, a number of dental malpractice insurance carriers have left the field, and insurance rates have risen by as much as 50 to 200 percent in one year. See generally Galante, , Dental Flaws: Malpractice Suits are on the Rise, Nat'l L.J., Feb. 20 , 1984, at 1Google Scholar, col. 1; Galante, , With Costs Rising Dentists’ Insurers Leave Field, Nat'l L.J., Feb. 20 , 1984, at 26Google Scholar, col. 1; see also Sokol, , Countersuits Deter Frivolous Malpractice Actions, Dent. Econ., Nov. 1984, at 85Google ScholarPubMed; Malpractice ‘Five D’s’ Help Prevent Lawsuits, Dent. Today, Apr. 1984, at 27Google Scholar. Dentists are now facing problems comparable to those faced by physicians, with the same undesirable consequences. For instance, dentists are being forced to practice defensively, e.g., taking radiographs to document treatment rather than solely to aid in diagnosis. In a field of treatment in which patients are typically highly fearful and poorly motivated to seek and accept necessary procedures which are, by their nature, quite intrusive both physically and psychologically, and in which patients are often uncomfortable when presenting for and during treatment, the dental practitioner must first attempt to create rapport with his patients in order to properly serve their needs. See, e.g., Sokol, , A Review of Non-Intrusive Therapies to Deal with Anxiety and Pain in the Dental Office, 110 J. Am. Dent. A. 217, 221 (1985)CrossRefGoogle Scholar. This effort can be severely undermined by a need to practice defensively. Major advances in approaches to treatment, technology and materials are rapidly occurring in the field of dentistry, but dentists must temper their approach in providing these services to their patients because of fear of possible lawsuits.

In view of these factors, dentists are now joining physicans and hospitals’ risk managers in a search for solutions to the malpractice crisis.

16 See Dahlquist, , The Responsibilities of Malpractice Carriers to their Insureds, The Health Lawyer Summer 1984, 3,17Google Scholar. See also, e.g., CNA Dentist’s Professional Liability Insurance Policy, at 1 (Dec. 1983)CrossRefGoogle Scholar (“The company shall have the right and duty to defend any suit against the insured even if any of the allegations of the suit are groundless, false or fraudulent, and may make . . . with the written consent of the insured, such settlement ... as it deems expedient.”). Cf. In New York State, dentists are not given the personal right to consent to settlements.

17 Dahlquist, supra note 16, at 17.

18 Prosser, W., Handbook of the Law of Torts 548 (4th ed. 1971)Google Scholar.

19 Birnbaum,.supra note 2, at 1009; see generally W. PROSSER, supra note 18, at 583; Remba, supra note 15, at 1.

20 81 111. 2d 201, 407 N.E.2d 47 (1980).

21 Id. at 205, 407 N.E.2d at 49.

22 HEW Report, supra note 1, at 13.

23 See, e.g., Fed. R. Evid. 411.

24 W. Prosser, supra note 18, at 549.

25 Birnbaum, supra note 2, at 1005. While no formal studies of physicians’ attitudes toward the contingent fee system have been reported, a survey conducted for the HEW Report, found that 30% of the physician-respondents who had been sued or threatened with litigation identified “Aggressive Lawyers" as the single most common cause of medical mal practice suits today. Similarly, 22% of physicians who had not been the target of malpractice claims shared that view. Pabst, A Medical Opinion Survey of Physicians’ Altitudes on Medical Malpractice, HEW Report, supra note 1, appendix 84; see also Goldstein, , Malpractice Claims, N.Y. Times, June 6 , 1975, at 18Google Scholar, col. 2. Predictably, the contrary view is espoused by the legal profession, particularly by members of the plaintiff’s bar. A survey of attorneys conducted for the HEW Report, reported that 1% of the plaintiff’s bar and 19% of the defense bar respondents felt that the contingent fee increased frivolous claims. In analyzing the results of interviews with attorneys, the authors of this study concluded that, when a nonmeritorious case was defined to be one with a low probability of winning at trial, there was little support for the assertion that nonmeritorious cases are accepted even if their potential recovery is large. Dietz, The Medical Malpractice Legal System, in HEW Report, supra note 1, appendix 118-19.

26 HEW Report, supra note 1, at 33.

27 See Busath, supra note 5, at 343. American courts do require the client to pay expenses and court costs. An attorney might accept cases without even minimal investigation as to the merits in the hope that the case would be settled for its nuisance value. See generally Bull v. McCuskey, 615 P.2d 895 (Ky. 1981); Peerman v. Sidicaine, 605 S.W.2d 242 (Penn. App. 1980); and Rogers v. Robson, 81 111. 2d 201, 407 N.E.2d 47 (1980).

28 See Busath, supra note 5, at 343. According to information provided by insurers, forty-six percent of malpractice claims are meritorious. HEW Report, supra note 1, at 10.

29 See Densmore, supra note 4, at 99 (discussing a proposal that contingent fees be limited to a sliding scale ranging from 50% of the first $3000 of court awarded damages down to 10% of any amount over $100,000). See also Busath, supra note 5, at 350.

30 See generally Aslanian, & Bedikian, , Arbitrating a Medical Malpractice Claim, 1983 Mich. B.J. 788Google Scholar (discussing a Michigan malpractice arbitration law designed to “facilitate the use of arbitration to resolve disputes arising from health care furnished by a physician, hospital, or other health care provider”); Emerson, & Schwartz, , Professional Liability, N.Y.S.J. Med. Jan. 1983 at 69, 73Google ScholarPubMed (quoting Chief Justice Burger: "[Arbitration] is generally cheaper and speedier than a trial, causes less wear and tear on the participants and will very likely produce a more satisfactory result.”); Mediation Panels, supra note 3, at 323 (“Arbitration replaces the trial process and substitutes a panel of arbitrators to recommend an equitable, binding solution.”).

31 See generally Bedikian, , Medical Malpractice Arbitration Act: Michigan’s Experience with Arbitration, 10 Am. J. L. & Med. 292 (1984)Google ScholarPubMed.

32 Id.

33 Id. at 304.

34 Id. at n. 96.

35 See Mediation Panels, supra note 3, at 328.

36 See Densmore, supra note 4, at 100; Sandrick, supra note 6, at 24; see generally Screening Panel, supra note 3, at 939. (Screening panels are “a pretrial device designed to weed out frivolous medical malpractice claims and to encourage early settlement of non-frivolous ones.”); Screening Tribunal, supra note 2. In recent years, Massachusetts’ tribunals have referred for trial only about sixty percent of the cases they receive. Boston Globe, Jan. 14, 1985, at 40, cols. 2-3.

37 See Screening Panel, supra note 3, at 939.

38 Id. at 956.

39 Densmore, supra note 4, at 100.

40 Havighurst, supra note 2, at 1241 (“The medical profession usually responds positively to proposals for a no-fault compensation system for medically caused injuries to patients. This response originates in large part in doctors’ anticipation that a no-fault scheme would relieve them not only of the psychic and other burdens of malpractice claims and lawsuits but of financial responsibility as well.”); see also Havighurst & Tancredi, supra note 2; Cf. Mechanic, supra note 9, at 1193 (“While it certainly seems plausible that a no-fault system would substantially reduce the middle-man costs associated with extensive litigation, it does not follow that an effective no-fault system would be less expensive; indeed, it may be far more costly. Unless the administration of such a system were quite conservative, it might require that many more patients be compensated.”); Emerson & Schwartz, supra note 30 at 71.

41 Sohn, , An Examination of Alternatives to Suit in Doctor - Patient Disputes, 48 Alb. L. Rev. 669, 690-91 (1984)Google Scholar.

42 Id. at 691.

43 See generally Havighurst, supra note 2; Havighurst & Tancredi, supra note 2 (comprehensive discussion of a no-fault insurance plan that would indemnify all medical expenses and all wage losses, subject to a minimum and maximum per week. Some allowance might be made for severe pain and suffering on the basis of a formula rather than attempting to individualize such damages or ignoring them altogether).

44 See generally Deutsch, , Medical Malpractice and Medical Misadventure in New Zealand: Public Insurance in Lieu of Private Liability as Administered by the Courts and the Accident Compensation Commission, 1 Med. & L. 345 (1982)Google Scholar (“Medical Misadventure is when: a) a person suffers bodily or mental injury or damage in the course of, and as part of, the administering to that person of medical aid, care or attention; and b) such injury or damage is caused by mischance or accident, unexpected and undesigned, in the nature of medical error or medical mishap.”). Medical misadventure insurance as established in New Zealand places causation (i.e. the determination that an “accident" has occurred) above fault. Physicians may still be liable in civil actions for malpractice due to nonfeasance or lack of informed consent. Punitive damages are not covered by the compensatory insurance.

45 Danzon, , An Economic Analysis of the Medical Malpractice System, 1 Behav. Sci. & L. 39, 51-52 (1983)CrossRefGoogle Scholar. (“A strong case can be made for using a schedule of awards for different types of injury in place of the current rules of compensable damages, which attempt to estimate damages incurred by each individual patient. Individual determination of damages adds to litigation costs, while adding very little to deterrence, because awards are unpredictable, often occurring many years after the event causing the injury and because such detail is currently and is likely to remain nullified by the averaging process of rating insurance premiums.”).

46 Densmore, supra note 4, at 99 (noting the New York Medical Liability Reform Coalition proposal to cap punitive awards at $100,000 per person and requiring “some objective measure" for any punitive damage award).

47 Densmore, supra note 4, at 99; Sandrick, supra note 6, at 24.

48 Sandrick, supra note 6, at 24. (To limit the use of “professional witnesses,” the Michigan State Medical Society proposal requires the expert to spend at least 75% of his or her time in clinical practice.)

49 Sandrick, supra note 6, at 24. Densmore, supra note 4, at 100. Currently, two states have instituted screening programs which require the plaintiff to pay defense costs on unsuccessful malpractice claims.

50 Densmore, supra note 4, at 100. This bond would be equal to the defendant’s likely defense costs if the plaintiff pursues a claim which a medical malpractice screening panel has determined to be non-meritorious.

51 Danzon, supra note 45, at 52. This measure would provide the insurer with greater certainty in pricing insurance and would protect defendants to some extent against retroactive application of higher standards of care arising from new judicial decisions. Danzon recommends that the shorter statute of limitations should begin on the date that the plaintiff discovers injury; substantial penalties would be assessed against any provider who seeks to conceal an actionable injury.

52 Grossen, & Guillod, , Medical Malpractice Law: American Influence in Europe?, 6 B.C. Int'l & Comp. L. Rev. 1, 16 (1983)Google Scholar. Judged by American standards, insurance premiums in Europe are negligible. For instance, premiums in France in 1978 were $100 per year for general practitioners and $1320-1400 per year for surgeons. Similarly, in Switzerland in 1960 general practitioners paid $215 in premiums and surgeons paid just $1025.

53 Id. at 25. Throughout Europe, a contingent fee system “is regarded as a serious violation of deontological rules because a lawyer should act according to principles of justice and equity, and ought to collect his fees in the most impartial way .... The direct consequence of this position is that in Europe patients usually do not want to take the financial risk of bringing a lawsuit, and lawyers have no real motive to encourage such action."

54 Black’s Law Dictionary 864 (5th ed. 1979); see also Zoldas v. Louise Cab Corp., — A.D.2d —, 489 N.Y.S.2d 468 (1985).

55 Emerson & Schwartz, supra note 30, at 70.

56 Ursu, supra note 14, at 217.

57 Model Code of Professional Responsibility DR 7-102(A)(1) (1980). See also Model Rules Of Professional Conduct Rule 3.1 (Aug. 1983) (“A lawyer shall not bring ... a proceeding . . . unless there is a basis for doing so that is not frivolous.”).

58 Model Code Of Professional Responsibility DR 2-110(B)(1) (1980).

59 See, e.g., Carlova, supra note 12, at 34.

60 See, e.g., Physician wins countersuit, Am. Med. News, Jan. 30 , 1981,Google Scholar noted in Taub, supra note 12, at 20, n.25; Hospital Countersues in Malpractice Case, Am. Med. News, July 18 , 1980, at 1Google Scholar, col. 1 [hereinafter cited as Hospital Countersues]; Countersuit Settlement Won By MD, Am. Med. News, Nov. 23 , 1979,at 1Google Scholar, col. 1 [hereinafter cited as Countersuit Settlement].

61 See, e.g., Louisiana Physician Wins $80,000 in Countersuit Against Lawyer, Patient, Am. Med. News, Mar. 2 , 1984 at 1Google Scholar, col. 1; Dentist Wins Liability Countersuit, Am. Med. news, Apr. 20 , 1979, at 3,Google Scholar col. 2. See generally Etheredge v. Emmons, No. 499691-6 (Alameda Super. Ct. 1981) (jury trial of malicious prosecution claim resulting in $75,000 compensatory award plus $100,000 in punitive damages); Annot., 84 A.L.R.3d 555, 560 (1978) ($175,000 malicious prosecution award in 1977).

62 See Rogers v. Robson, 81 111. 2d 201, 407 N.E.2d 47 (1980); Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980); Raine v. Drasin, 621 S.W.2d 895 (Ky. 1981); Bull v. McCuskey, 96 Nev. 706, 615 P.2d 957 (1980); Peerman v. Sidicaine, 605 S.W.2d 242 (Tenn. Ct. App. 1980); Jankelson v. Cisel, 3 Wash. App. 139, 473 P.2d 202 (1970). See also Huene v. Carnes, 121 Cal. App. 3d 419, 175 Cal. Rptr. 374 (1981), h'g denied (with court order that opinion not be officially published) (Sept. 16, 1981); Mahaffey v. McMahon, 630 S.W.2d 68 (Ky. 1982); Hill v. Wilmott, 561 S.W.2d 331 (Ky. Ct. App. 1978).

63 Although countersuits based on defamation are generally not successful, see infra note

64 and accompanying text, the plaintiff recovered in Jankelson v. Cisel, 3 Wash. App. 139,473 P.2d 202 (1970), a libel and slander suit brought by a dentist. Injankelson, the dentist received compensating damages and a permanent injunction was issued against the defendant-patient to prevent her from making false and/or derogatory statements. The decision was affirmed on appeal.

64 See, e.g., Bull v. McCuskey, 96 Nev. 706, 711-12, 615 P.2d 957, 961 (1980) (“As a general proposition an attorney at law is absolutely privileged to publish matter concerning another, preliminary to a proposed proceeding, or in the institution of or during the course and as a part of a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.”). See also Birnbaum, supra note 2, at 1042-48 (ordinarily not an effective remedy if statements are made within the confines of a judicial proceeding); Rheingold, , Best Antidote to Malpractice: Countersue! 16 Dent. Mgmt. 73 (Mar. 1976);Google ScholarPubMed and Ritter & Brooks, supra note 4, at 69 (minimal utility of defamation action due to absolute privilege in “judicial proceeding”).

65 Weaver v. Superior Court, 95 Cal. App. 3d 166, 182-83, 156 Cal. Rptr. 745, 754 (1979); Nelson v. Miller, 227 Kan. 271, 289, 607 P.2d 438, 451 (1982); Hill v. Wilmott, 561 S.W.2d 331, 333-34 (Ky. App. 1978); Friedman v. Dozorc, 83 Mich. App. 429, 437, 268 N.W.2d 673, 677 (1978); Drago v. Buonagurio, 46 N.Y.2d 778, 779, 386 N.E.2d 821, 822, 413 N.Y.S.2d 910, 911 (1978); O'Toole v. Franklin, 279 Or. 513, 524, 569 P.2d 561, 567 (1977); Martin v. Trevino, 578 S.W.2d 763, 770-72 (Tex. Civ. App. 1978).

66 Wolfe v. Arroyo, 543 S.W.2d 11, 13 (Tex. Civ. App. 1976).

67 Id.

68 Berlin v. Nathan, 64 111. App. 3d 940, 950-51, 381 N.E.2d 1367, 1374 (1978) (“A ‘certain remedy’ in the laws for all injuries and wrongs is simply an expression of a philosophy and not a mandate. . . .”) (quoting Sullivan v. Midlothian Park Dist., 51 111. 2d 274, 277, 281. N.E.2d 659, 662 (1972)).

69 Martin v. Trevino, 578 S.W.2d 763, 770 (Tex. Civ. App. 1978).

70 See, e.g., Etheredge v. Emmons, No. 499691-6 (Alameda Super. Ct. Feb. 1981); Raine v. Drasin, 621 S.W.2d 895, 902 (Ky. 1981); Peerman v. Sidicaine, 605 S.W.2d 242 (Tenn. App. 1980); Hospital Countersues, supra note 60; Countersuit Settlement, supra note 60; see also Huene v. Carnes, 121 Cal. App. 3d 419, 175 Cal. Rptr. 374 (1981) (mere filing of action by attorney, not authorized by client, is prima facie case of malicious prosecution); Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1982) (in determination of probable cause in a malicious prosecution action, a jury may properly consider not only those facts disclosed to counsel by the client but also those facts which could have been learned by a diligent effort on the attorney’s part); Hill v. Wilmott, 561 S.W.2d 331 (Ky. App. 1978) (no action in negligence, but an action in malicious prosecution may be maintained); Ritter & Brooks, supra note 4, at 64-68 (malicious prosecution countersuits); Singer, supra note 12, at 391-97 (malicious prosecution counter-suits).

71 This is well illustrated by recent case law. Babb v. Superior Court, 3 Cal. 3d 841, 479 P.2d 379, 92 Cal. Rptr. 179 (1971); Weaver v. Superior Court, 95 Cal. App. 3d 166, 156 Cal. Rptr. 745 (1979); Taylor v. Greiner, 247 Ga. 526, 277 S.E.2d 13 (1981); Pantone v. Demos, 59 111. App. 3d 328, 375 N.E.2d 480 (1978); Berlin v. Nathan, 64 111. App. 3d 940, 381 N.E.2d 1367 (1978); Wong v. Tabor, 422 N.E.2d 1279 (Ind. App. 1981); Friedman v. Dozorc, 83 Mich. App. 429, 268 N.W.2d 673 (1978); Drago v. Buonagurio, 46 N.Y.2d 778, 386 N.E.2d 821,413 N.Y.S.2d 910 (1978); O'Toole v. Franklin, 279 Or. 513, 569 P.2d 561 (1977); Martin v. Trevino, 578 S.W.2d 763 (Tex. Ct. App. 1978).

72 Adler, , Malicious Prosecution Suits as Counterbalance to Medical Malpractice Suits, 21 Clev. St. L. Rev. 51, 54 (1972).Google Scholar A compromise or settlement does not constitute a determination on the merits for the purposes of a malicious prosecution action. See PROSSER, W.&KEETON, W., Prosser And Keeton On The Law Of Torts § 119 (5th ed. 1984).Google Scholar See also Weaver v. Superior Court, 95 Cal. App. 3d 166, 156 Cal. Rptr. 745 (1979) (dismissal resulting from negotiation, settlement or consent is not recognized as favorable termination); Wong v. Tabor, 422 N.E. 2d 1279 (Ind. App. 1981) (where original action was terminated without regard to the merits by agreement or settlement of the parties, no action lies for malicious prosecution).

73 See generally Babb v. Superior Court, 3 Cal. 3d 841, 844, 479 P.2d 379, 380, 92 Cal. Rptr. 179, 180 (1971) (“[P]recedent, principle, practicality and policy forbid such a cross- complaint, which entails the risk of discouraging legitimate claims . . . .”); Shulman v. Miskell, 626 F.2d 173, 174 (D.C. Cir. 1980) (termination of underlying proceeding in favor of defendant is an essential element of malicious prosecution action); Berlin v. Nathan, 64 111. App. 3d 940, 950, 381 N.E.2d 1367, 1374 (1978) (“[f]iling such a complaint against the attorney before the termination of the original suit would be against public policy . . . .”).

74 Wong v. Tabor, 422 N.E.2d 1279, 1288 (Ind. App. 1981).

75 Id. at 1288.

76 Id. at 1286.

77 Pantone v. Demos, 59 111. App. 3d 328, 334, 375 N.E.2d 480, 484 (1978).

78 Friedman v. Dozorc, 83 Mich. App. 429, 442, 268 N.W.2d 672, 679 (1978).

79 64 111. App. 3d 940, 947, 381 N.E.2d 1367, 1372 (1978). The Berlin case is discussed in Taub, supra note 12, at 19-20, and Green, , You Can Fight That Malpractice Suit, 16 Dent. Mgmt. 39 (Dec. 1976).Google Scholar

80 Weaver v. Superior Court, 95 Cal. App. 3d 166, 193, 156 Cal. Rptr. 745, 760 (1979), h'g denied (Sept. 12, 1979) (emphasis in original).

81 64 111. App. 3d 940, 945, 381 N.E.2d 1367, 1371 (1978).

82 Pantone v. Demos, 59 111. App. 3d 328, 336, 375 N.E.2d 480, 486 (1978); O'Toole v. Franklin, 279 Or. 513, 517, 569 P.2d 561, 563 (1977); Martin v. Trevino, 578 S.W.2d 763, 767 (Tex. Ct. App. 1978).

83 Martin v. Trevino, 578 S.W.2d 763, 767 (Tex. Ct. App. 1978).

84 Taylor v. Greiner, 247 Ga. 526, 528, 277 S.E.2d 13, 15 (1981), reh'g denied (Apr. 28, 1981); O'Toole v. Franklin, 279 Or. at 517, 569 P.2d at 563-64.

85 Pantone v. Demos, 59 111. App. 3d at 336-37, 375 N.E.2d at 486.

86 Taylor v. Greiner, 247 Ga. 526, 277 S.E.2d 13 (1981).

87 Id. at 528, 277 S.E.2d at 15.

88 626 F.2d 173 (D.C. Cir. 1980).

89 Id.; accord Babb v. Superior Court, 3 Cal. 3d 841, 845, 479 P.2d 379, 381, 92 Cal. Rptr. 179, 181 (1971).

90 621 S.W.2d 895 (Ky. 1981).

91 Id. See also Taub, supra note 12, at 17-18 (discussing Raine, 621 S.W.2d 895).

92 Raine, 621 S.W.2d at 899.

93 Id. at 900.

94 Id. at 902.

95 630 S.W.2d 68 (Ky. 1982).

96 Id.

97 227 Kan. 271, 607 P.2d 438 (1980).

98 Id. at 286, 607 P.2d at 446.

99 Id. at 281-82, 607 P.2d at 446.

100 Nelson v. Miller, 233 Kan. 122, 660 P.2d 1361 (1983).

101 Id. at 131, 660 P.2d at 1368.

102 121 Cal. App. 3d 419, 175 Cal. Rptr. 374 (1981), h'g denied (Sept. 16, 1981) (in denying, the California Supreme Court ordered that the opinion not be officially published).

103 Id.

104 Id. at 377.

105 No. 499691-6 (Alameda Super. Ct. Feb. 1981) (discussed in Carlova, supra note 12, and 12 Prof. Liab. Newsletter no. 5 (1981)).

106 See Carlova, supra note 12, at 31, 12 Prof. Liab. Newsletter no. 5, (1981).

107 Carlova, supra note 12, at 32.

108 Id. at 34.

109 12 Prof. Liab. Newsletter no. 5 (1981).

110 PROSSER, W. & KEETON, W., Prosser and Keeton on Torts § 121 (5th ed. 1984).Google Scholar

111 Id.

112 Ritter & Brooks, supra note 4, at 60.

113 See, e.g., Raine v. Draisin, 621 S.W.2d 895 (Ky. 1981); Friedman v. Dozorc, 83 Mich. App. 429, 268 N.W.2d 673 (1978); Drago v. Buonagurio, 46 N.Y.2d 778, 387 N.E.2d 821,413 N.Y.S.2d 910 (1978); Martin v. Trevino, 578 S.W.2d 764 (Tex. Ct. App. 1978). See generally Birnbaum, supra note 2, at 1033-42 (an overview of abuse of process); Ritter & Brooks, supra note 4, at 69 (abuse of process is generally unsuccessful as cause of action in malpractice countersuit unless one could show that process was used in attempt to coerce a settlement); Singer, supra note 12, at 398 (abuse of process not a viable remedy for frivolous malpractice suit).

114 96 Nev. 706, 615 P.2d 957 (1980).

115 Id. at 710-11, 615 P.2d at 961.

116 Id.

117 605 S.W.2d 242 (Tenn. App. 1980).

118 Id. at 243.

119 Id. at 245.