As is usual in a tort complaint, all potentially available claims are usually made. As a result, both malicious prosecution and abuse of process are often included in a malpractice countersuit complaint.
Before initiating a countersuit, a physician would do well to consider the fact that he or she has an extremely remote likelihood of prevailing in a countersuit. Then, after losing the countersuit, which is the overwelmingly likely outcome, it will be only natural for some people to question the favorable verdict the physician won in the underlying malpractice case — "If Dr. Smith didn’t do anything wrong, why did she lose her countersuit?" People do not understand how difficult it is to win a countersuit and might see the countersuit as merely a retrial of the original malpractice case, this time with a judgment against the physician.
In Dutt, the Supreme Court of Nevada considered an appeal of a jury verdict and judgment against an attorney, Virgil Dutt, for malicious prosecution and abuse of process. Mr. Dutt had previously filed a malpractice action against the physicians on behalf of Jack Rentnelli. This malpractice case was then voluntarily dismissed by the plaintiff. Following dismissal of the case, the physicians brought suit against both Mr. Dutt and his client, Mr. Rentnelli, claiming malicious prosecution and abuse of process.
The focus of the cases is primarily on the second element. In the medical malpractice context, plaintiffs generally attempt to prove the second element by showing that the real purpose of the suit was not to compensate the plaintiff for real damages, but rather to extort a nuisance settlement out of the defendant physician.
Successful physician defendants have attempted to bring countersuits against plaintiff’s attorneys ( not plaintiffs) on a negligence theory. This requires proof of essentially the same basis elements that are at issue in a medical malpractice claim: duty, breach of the standard of conduct, damages, and proximate causation. As the next case demonstrates, the insurmountable hurdle for the physician in bringing a countersuit under this theory is the lack of duty.
The malpractice suit was brought by Stanley Schwartz, an extremely well-known and successful plaintiff’s attorney in Michigan. The countersuit was filed while the underlying medical malpractice case was yet unresolved and claims of malicious prosecution by the Emmons and negligence on the part of Mr. Schwartz were brought.
Malicious prosecution is the favored claim in a medical malpractice countersuit, although labeling the claim as "favored" is misleading. It is only favored in reference to the other claims that are sometimes brought in countersuits. Malicious prosecution is technically limited to wrongful prosecution of criminal matters. The claim brought in response to a civil suit that is perceived to have been frivolous is more correctly labeled as "wrongful use of civil proceedings." That being said, it is the common usage, although technically incorrect, to refer to such cases as malicious prosecution claims.