Most malpractice claims may be unmeritorious, but they're not frivolous. Regardless of outcome, a physician isn't negligent if he or she possessed and exercised the same degree of skill and learning reputable peers possessed and would have exercised under similar circumstances. The law neither requires physicians to be perfect nor judges them solely on the outcome of their care and treatment. The law therefore gives physicians broad latitude to make skilled judgments, recognizes a diversity of treatments, and doesn't consider a physician's inability to cure or resolve a condition indicative of incompetence or negligence. Practically speaking, exonerated malpractice defendants have little recourse against plaintiffs who sued them on the erroneous assumption that bad outcomes result only from bad care.
Countersuits are costly and rare.
Winning one is even rarer, because the doctor must prove the plaintiff's case was capricious, fraudulent, or utterly lacking in merit. Plaintiffs' attorneys receive subtle encouragement to sue by insurers that routinely settle defensible, unmeritorious claims solely to avoid the expense of litigation. Prelitigation screening panels that some states use to weed out unmeritorious claims have been only moderately successful. Physicians sued for malpractice today are confronted with most of the same allegations their predecessors have faced for decades. But many physicians still are unfamiliar with the recurring malpractice allegations against their specialty.