While this article is something of a departure from my usual niche of providing educational articles for plaintiffs involved in personal injury suits, I do feel that people are entitled to know the truth about “frivolous” medical malpractice lawsuits from a lawyer’s perspective. Medical malpractice cases were never my “bread and butter,” but I have handled enough of them to know that the picture of a “medical malpractice crisis” in this country painted by the media and one particular political party is patently false.
Frivolous Medical Malpractice Cases – Big Money Makers?
One of the most laughable arguments put forth by proponents of tort reform is that frivolous medical malpractice cases are driving up health care costs and forcing good doctors to close their businesses. The fundamental flaw with this argument is the premise that plaintiffs who bring frivolous medical malpractice lawsuits frequently win, and that they are awarded large judgments. Think about this. You are asked to believe by the proponents of so-called “tort reform” that juries across the country are routinely duped into awarding huge sums of money for frivolous med mal claims. One thing I have yet to see, and I welcome any reader to correct me in the comments if I am wrong, is a single example of such a case. Where is the “McDonald’s coffee case” of medical malpractice? As a side note: I discuss the misinformation about the hot coffee case and the wonderful HBO documentary “Hot Coffee” in this article.
The reason you are not shown examples of successful frivolous med mal cases is that they are as rare as hen’s teeth. It is insulting to juries to suggest that they are all under the control of the evil plaintiffs’ lawyers (would that it were so easy!). Frivolous med mal cases rarely make it through litigation to get to a jury, much less result in a huge plaintiff’s verdict.
Medical Malpractice Plaintiffs’ Lawyers – Why Would They Ever Want to Pursue a Frivolous Lawsuit?
Put yourself in the shoes of a medical malpractice plaintiff’s lawyer. I’ll help you by giving you some of the knowledge they have:
- Medical malpractice lawsuits are expensive. You will invest thousands, if not tens of thousands of dollars of your own money on costs such as expert witnesses and depositions to bring this lawsuit. If you lose the case, you will eat that cost.
- Doctors typically make very sympathetic defendants. People have a natural tendency to trust doctors.
- Medical malpractice insurance, unlike nearly every other form of liability insurance, gives the insured (the doctor being sued) the final say as to whether a case settles. It’s fair to say that most doctors are reluctant to admit when they’ve acted negligently, making quick and painless settlements quite rare in the med mal field.
Knowing these things, how likely are you as the med mal plaintiff’s lawyer to want to take on a frivolous case? Unless you have a severe gambling addiction, you are only going to want to take cases that have a strong likelihood of being proven. Only a fool would want to gamble his own money on a frivolous med mal case.
Most Losing Med Mal Cases are Not Frivolous
A distinction needs to be drawn between med mal cases where the plaintiff loses (defense verdict) and a frivolous med mal case. There are many civil lawsuits which are close calls — cases in which a jury could reasonably find for either side. Losing does not make your case frivolous any more than winning makes your case a “slam dunk.” A defense verdict is merely a finding by a jury that it was more likely than not that the doctor did not commit malpractice. It is not a finding that the case had no merit and never should have been brought in the first place.
Medical Malpractice and Tort Reform
Most of the times that you hear of tort reform, it will be in the context of medical malpractice. The AMA and other medical lobbying groups work tirelessly to end medical malpractice lawsuits. Not medical malpractice, mind you. Just medical malpractice lawsuits.
Most of these efforts are geared towards imposing arbitrary caps on damage awards. Many states have already imposed these caps (my home state of Florida being one of them). Caps on damage awards do absolutely nothing to deter frivolous lawsuits. Why? Because a truly frivolous case would almost never result in a jury award that would exceed a damages cap. These caps are a thousand times more likely to punish plaintiffs with meritorious claims and severe injuries. Imagine being blinded due to a doctor’s negligence and then being told you are limited to $250,000.00 in pain and suffering damages. I’d expect that a lifetime in darkness would be worth far more than that.
Some states have even gone so far as to limit not only your pain and suffering damages, but also your economic damages, such as wage loss and medical bills. This means that even if you prove that your lifetime medical bills due to a doctor’s negligence exceed $2 million, you could be limited to a judgment of one quarter that amount. Guess who winds up paying for the rest? In all likelihood, your friendly taxpayer, through medicare or medicaid. So, the next time you hear a doctor asking you to cap economic damages for med mal claims, tell that welfare queen to pay his own damages. Also, ask him for a single example of a “frivolous” med mal case which recovered more than the amount of his proposed damages cap.
Caps on Medical Malpractice Attorney’s Fees
One particularly sneaky tactic the doctors’ lobby employed in my home state (Florida) was to trick the public into voting for a state constitutional amendment (known as Amendment 3) which tried to limit the percentage of attorney’s fees plaintiffs’ medical malpractice lawyers could recover. The standard attorney contingency fee contract in Florida provides (after a lawsuit is filed) that the lawyer gets 40% of the first $1 million recovered, 30% of the second million, and 20% of anything above that. Amendment 3 provides that med mal plaintiff’s lawyers recover 30% of the first $250,000.00 and 10% of anything above that. This is obviously a huge difference in potential recovery.
I say that the doctors’ lobby tricked the voters into approving this amendment because they sold it as being a boon to the plaintiff — the plaintiff gets to keep more money and the greedy lawyer gets screwed, what’s not to like? The problem is, the real goal of this amendment was to make it unaffordable for lawyers to accept medical malpractice clients at all. Why take a difficult and expensive med mal claim and recover 10% when you could just take a car accident and get your full 40%?
Luckily, there was a giant loophole which the doctors’ lobby had not anticipated when they got this amendment passed. Clients could sign a waiver of their state constitutional right to have their fees capped which would allow their attorneys to recover their usual fees. So now, thanks to the efforts of doctors and hospitals to trick Floridians into giving up their ability to sue for medical malpractice, the end result is this — if you want to hire a med mal lawyer in Florida, you have to sign an extra piece of paper.
I tell the saga of Florida’s Amendment 3 not to brag about how the lawyers snatched victory from the jaws of defeat, but more as a cautionary tale. No matter how good a tort reform law sounds, take the time to learn what the consequences will be before you decide how to vote. If it seems like a can’t-lose proposition that only hurts lawyers, odds are it will wind up hurting the public more.
Defensive Medicine and Medical Malpractice — You’re Welcome
One of the popular talking points of the med mal tort reform hawks is that med mal lawsuits lead to “defensive medicine.” Defensive medicine is often described as doctors ordering unnecessary tests to protect themselves from lawsuits. These unnecessary tests then drive up the cost of health care for everyone.
I would counter that any test that a doctor feels will protect him from a med mal lawsuit is de facto not unnecessary. A truly unnecessary test would provide no protection from a med mal lawsuit. If your doctor is afraid of being sued for missing something that would show up on one of these tests, he damn well should order the test. Anything that makes my doctor afraid of screwing up my treatment is a good thing. I would hope that most doctors care enough about their patients to be thorough without needing the spectre of a lawsuit to provide further incentive. However, if lawsuits cause doctors to be more thorough in their testing, as a lawyer I say, “You’re welcome, patients.”