Use of the countersuit by pharmacists who have been groundlessly sued for malpractice

Attorneys for patients who have been injured by adverse reactions to drugs often name as defendants the prescribing physician, the drug manufacturer, and the pharmacist. In many jurisdictions neither the law of warranty nor the law of strict liability will support a cause of action against a pharmacist who has done nothing more than correctly dispense a drug which was correctly prescribed. If the lawsuit against the pharmacist can be shown to have been filed for no other reason than to coerce a nuisance settlement or just to be cautious, the pharmacist may have available a remedy in the form of a countersuit. Malicious prosecution is one cause of action which might be maintainable as a countersuit. The elements of the cause of action are: 1) the initiation of a lawsuit; 2) lack of probable cause; 3) malice; 4) termination in favor of the pharmacist; and 5) damages. Lack of probable cause and malice are interrelated and are the two most difficult elements to prove. Abuse of process is another possible cause of action. The elements are: 1) an illegal, improper, or perverted use of the process; 2) an ulterior motive or purpose; and 3) damages. Other causes of action which have been considered by attorneys for groundlessly sued health professionals are barratry, defamation, attorney negligence, prima facie tort, and violation of a disciplinary rule.