Frivolous Medical Malpractice Suits – Lies and Distortions

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:

  1. 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.
  2. Doctors typically make very sympathetic defendants. People have a natural tendency to trust doctors.
  3. 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.

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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.

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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.”

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14 Responses to Frivolous Medical Malpractice Suits – Lies and Distortions

  1. Jim O'Hare RPLU AIC AIS says:

    Twenty seven years as a professional liability claims guy- NY, Fl and Tx, NV, Il, Wv to name a few hot spots.

    Frivelous is the case that I spend $100k defending until the case gets dropped. There are plenty or them. A certificate of merit helped and was a good reform. Can you argue there? If you can’t get a COM, probably not a good case. Fair?

    Arbitrary caps were implemented to protect against arbitrary awards. Pain is completely subjective and can’t be weighed nor measured. Argue for higher caps or policy limits. 40% fee plus your expenses could turn into 1/2. – No?
    That attempt in Florida to curtail fees was a bust as the real good plaintiff firms would turn away good cases unless the plaintiff agreed to the old rates. True?

    I believe that there may be fewer frivelous cases due to the expense, but there are still an enormous number. Tort reform has worked in Tx , Wv and Fl. There is more work to be done. A jury of peers maybe, just asking for a college degree to sit on a jury. Loser pays? arbitration? Mandatory insurance for Docs?

    It is the 20% of docs that cause the 80% of claims. That requires some investigation.

    Regards
    Jim O’HAre RPLU AIC AIS
    ‘Dir of claims
    Medicus
    Tx

    • fl_litig8r says:

      Thank you for your well thought out comment. For those who may not be familiar with the term “certificate of merit”, let me clarify. In some states, including Florida, before a lawyer can file a med mal lawsuit, he must obtain an affidavit from another doctor stating that the doctor he is trying to sue failed to meet the accepted standard of care (committed malpractice). I don’t think that this requirement is unreasonable.

      As to frivolous cases which cost the insurer $100k to defend before being dropped, I would argue that the cost to the plaintiff’s lawyers who bring them (and lose a good deal of money themselves) would be enough of a deterrent.

      I stand by my position against arbitrary damage caps. While pain and suffering are subjective, that’s why we have juries. They are in a much better position to determine a fair award on a case by case basis. In fact, they do this in nearly every personal injury lawsuit they hear. Why should med mal cases get a special cap? Trying to make a one-size-fits-all damages cap for all malpractice cases will never be fair. If a runaway jury awards a completely unreasonable amount of damages, the judge can reduce that award through a procedure called remittitur. This is a much fairer check on excessive pain and suffering.

      As far as attorney’s fees go, a 40% fee plus costs (which will always be high in med mal cases) could easily result in half of the plaintiff’s award. Of course, the award of costs is just to reimburse the lawyer for money already spent on the case, so there’s no profit there. As for the fee, whether it is a fair amount or not will vary from case to case. Some cases get settled immediately. Some take many years and a full jury trial. Some result in a defense verdict. The 40% is meant to be fair in the aggregate, but often won’t be fair for each individual case.

      As far as your suggestions for making the system more fair:
      A jury of peers maybe, just asking for a college degree to sit on a jury.
      I know plenty of idiots who graduated college and an equal number of intelligent people who didn’t. Plus, I’m not sure that any level of education would be demonstrative of an aptitude for understanding medical issues.
      Loser pays?
      I know that this wouldn’t work. First, most plaintiffs are judgment proof, so any judgment for fees against them will go uncollected. Second, Florida already has a way for defendants to recover their attorney’s fees from losing plaintiffs in all civil cases for damages. It’s called an “Offer of Judgment” (now referred to as a “Proposal for Settlement”). It’s too long to explain here, but a doctor could offer a plaintiff $100.00 to settle his case right after it’s filed. If the plaintiff doesn’t accept the offer (which would end the case) and subsequently loses the case, he owes the doctor his attorney’s fees from the time the offer was made. This has been around for many years.
      arbitration?
      I give this one not just a “no”, but a “hell no.” A secretly conducted proceeding before a panel of doctors? I’ll take an open courtroom, appeal rights and a jury trial.
      Mandatory insurance for Docs?
      While this is a good thing in the abstract, I don’t know if it would to anything to lower the number of lawsuits.

      Again, thanks for your comment. As I’m sure many bloggers know, sometimes it feels like you’re just shouting into a void. It’s nice when the void occasionally shouts back.

    • Laura Hart says:

      This is one of the best articles I have read about the differences between the liability of doctors and others who are sued.
      A cogent and logical argument that may even be something that should sit on the desk of a Senator or Congressman, so that they may understand that we are not as stupid as they think.
      In my situation, I have a medical malpractice case, or cases, that may require assistance from an attorney. But what about simple responsibility? Where did that go?
      Nobody wants to be in this situation where they have to go up against their doctor or hospital, but statistics show there are medical mistakes everyday that change people’s lives and health, permanently.
      There must be some way to add fairness to this equation. Auto insurance is an area where they cheat and scam, yet there are no caps there are already caps based upon the insurance you purchase.
      Nobody should be able to walk away from harming someone else without the obligation to make some reparations.
      Cap it all then, such as the big cases taken on by AG’s, and other agencies.
      Just don’t single out a problem area. If there are doctors harming people, and nobody is willing to bring it out into the open, that’s a license to steal.
      And the mistakes may also indicate this doctor may not need to lose a license, it may mean more education, community service, but not leaving a patient abandoned as was done in my case.
      Great article. Thank you for your intelligence and compassion.

      • fl_litig8r says:

        Thank you for your kind words. It amazes me how often the focus of government officials falls on the prevention of medical malpractice lawsuits, instead of the prevention of malpractice itself. Where are the grand calls to examine how medical care is provided today? How many people leave their doctors’ offices with the feeling that their doctors couldn’t get out of their examination rooms quickly enough? Is there any way to turn medical care away from the volume business it’s become?
        Obviously, such concerns could also be expressed about the legal profession and many other professions. Unfortunately, the consequences of medical malpractice are often much more severe and personal than in other professions.
        Barring or capping medical malpractice lawsuits won’t stop malpractice from occurring. It will just shield the doctors (or more accurately, their insurance companies) from the consequences of their actions.

  2. thank you for providing awareness-raising post. This will greatly help for people who consider to bring lawsuit.

  3. Dee says:

    I am in the process of a medical malpractice case. I wanted to avoid this more than anything. The physician that I trusted made many mistakes that resulted in the destruction of my 25 year career, forced me to take an early retirement with a huge reduction in pension for the rest of my life and ruined my life. So now, I am poor, disfigured, sick and other physicians treat me sort of like a hot potato, they don’t want to be involved. When I first consulted a friend attorney who doesn’t specialize in medical malpractice, she said she would attempt to work with the insurance carrier as the case was obviously meritorious. The claims staff said “we don’t deal with threats of litigation”. I was forced to sign on with a legal specialist who had to obtain the certificate of merit. My medical history for my entire life is exposed to all and the physician is inconvenienced by what has turned into a clever game for attorneys. I do not know what the answer is but I do know that victims of medical malpractice have the most difficult time. I think the Dr. must have been using drugs or something to account for his deviation for the standard of care. He was board certified and he thought he was great. What are we to know different when we are unconscious on the operating table? I put off the legal action trying to “get better” as I learned the extent of the damage inflicted on me. then I tried to work with the physician and his insurance carrier in an attempt to get them to take responsibility. Now I am subjected to delay tactics by their attorneys who are charging insurance carriers by the hour and have no motive to accept responsibility. I understand that 3-5 years after the summons and complaint is filed should be the norm. If an electrician burned down a house he would be held accountable. If a mechanic forgot to put the brakes back on the care he and his company would be accountable. Physicians think they are above being held accountable because they can try to “treat” and stall and maybe the statute of limitations will protect them while the stupid patient tries to hope. I think they much teach how to misrepresent the truth in your medical notes at medical school after I saw his notes. They were pure fiction. Still, He can not produce consent forms that don’t exist or find reasons for doing surgery on the wrong side of the body or implanting things that were never discussed (its like he confused me with some other patient). Some notes went missing and then a missing dictation from before surgery was discovered months later. How could he have reviewed what was discussed prior to surgery if that dictation was misplaced? This is all a big unnecessary nightmare and I can not wake up.

    • fl_litig8r says:

      Thank you for taking the time to share your story. Contrary to the widespread belief that frivolous medical malpractice lawsuits are “easy money” and a drain on our health care system, it has been my experience that meritorious claims are typically met with arrogance and denial. I’d like to know what fictional state provides big payouts for frivolous cases. In the real world, malpractice insurers fight tooth and nail over cases that should be settled at the outset.

      I wish you the best of luck with your lawsuit.

  4. TCRN says:

    I think I’ve read every article on this page. Awesome and informative site. Thank you for making it. I may have missed it somewhere, but is there a section that covers nursing malpractice?

    Ex: The school nurse failed to assess a child with a fracture and forced the child to walk on it (bowing out the bone 15 degrees causing a permanent limp among other injuries), then failing to call 911, etc…

    Thanks in advance

    • fl_litig8r says:

      I haven’t written any articles on nursing malpractice. I haven’t really written any on substantive medical malpractice issues, really, because of the wide variety of pre-suit procedures and damages caps in different states. I may write one eventually about general medical malpractice principles, but for now just know that a med mal case against a nurse is treated pretty much the same way one against a doctor is treated. In many states, that means that prior to being able to sue, you have to obtain an affidavit or some other written opinion from another similar medical professional (in this case, a nurse) who has reviewed the medical records and other available evidence and opines that the treatment provided by the school nurse deviated from the acceptable standard of care. That’s just a fancy of way of saying that you need another nurse to say that the school nurse was negligent.

      Med mal cases often have very short statutes of limitation, so if you are thinking of suing this school nurse, you should consult a med mal attorney as soon as possible. The lawyer, if he accepts your case, will handle getting the required expert opinion needed to file suit. If the nurse is an employee of a public school, you may have even less time to sue (or give special notice of your intention to sue), as suing a government entity often gives you less time than the standard statutes of limitations. If this is a public school, your claim may be subject to an even lower cap on damages (as happens in most states when suing a state or local government for negligence).

      If you have doubts about whether you have a case, call a local med mal lawyer and ask.

  5. Chuck says:

    Thanks for your article. It was a real interesting read for
    me as my girlfriend recently lost a medical malpractice case
    related to bad actions by the surgeon (in my opinion clear negligence) that caused nerve damage and a drop foot. She had a difficult time walking without a special show that looks like a brace.

    I think like many, before seeing her go through this
    I subscribed to some of the myths, especially that there are too many frivolous cases. I learned that there are a few issues that I don’t think the public knows about are things I wish they did:

    1) The dragging out fo the case can sometimes help the defense. This case dragged on for almost 5 years and, tragically, in my opinion, the law on New Jersey standard of care was updated and went into effect 2 weeks before the trial was heard. The new standard is so much in the doctors favor that its hard for me to see many malpractice cases being won. Moreover, the last few delays were due to defense attorney schedules and a death in the family of the lead defense attorney.

    2) The defense knew deep down the doctor had done something wrong. The reason I firmly believe this is they agreed to a $250,000 payment to my girlfriend in a “high/low” agreement even if they lost. After costs she will receive about $115,000. However, it hurts for me to see her so hurt that she “lost” the case. For her this was about making an arrogant physician be accountable for his actions.

    3) While I am not objective in this case obviously (I have served as an expert many times in my own field which is not medicine — but do consider myself knowledgable about our legal system) the doctor clearly contradicted himself on multiple occasions. I firmly believe he was lying and that the jury should have picked up on this.

    4) Some members of the jury were crying when the verdict was read. I can’t be sure but my guess is that at least a few knew the doctor did something wrong but felt the new “standard of care” allowed the doctor to make a significant mistake.

    5) Both the judge and the clerk told my girlfriend’s attorney that they really thought she had one.

    In the end I can only conclude that the medical indsutry has snowed the public and that some aggresive member of juries who buy into this nonsense push other jurors to favor the doctor.

    6) The jury asked to see the new standard of care law and took 2 days to make a decision. They also asked for the resume of one of the plaintiff’s experts but the judge did not give it to him. It really was striking to me how far some of the doctor’s colleagues would go to protect him even though they ultimately had to make concession due to contradictions in the doctor’s own testimony.

    I feel so bad for my girlfriend even though she is getting money out of the case. I wish the jurors knew about the settlement and
    that a doctor who really was negligent now feels like he “won.”

    I no longer believe that we have the best judicial system in the world. This was really, really wrong.

    • fl_litig8r says:

      Thank you for sharing your story. You’re absolutely right that doctors (especially the AMA) have done a bang-up PR job in their efforts to deceive the public into giving away the rights of the patients who have been hurt the worst. If you really want to get your blood boiling about the true effects of tort reform, you should watch the HBO documentary Hot Coffee. I’d love to make it mandatory viewing for people selected for jury duty.

  6. Zenaida says:

    Hello,

    I have a quick question. My lawsuit just settled and I received the billing info from my lawyer. If we agreed to the 33% attorney fees, can my lawyer charge me the attorney fees and also charge me costs?

    • fl_litig8r says:

      Standard contingency fee contracts provide that the client pays the attorney’s fee percentage from the gross settlement and the attorney’s costs are deducted after that. So in a $10,000.00 settlement with a 33 1/3% fee and $1,000.00 in costs, the breakdown would be as follows:

      $10,000.00 gross settlement
      – $3,333.33 fee
      – $1,000.00 costs
      = $5,666.67 to client

      Any medical liens or health insurance liens are also taken out of your share of the settlement, after fees are deducted.

  7. Angus Bull says:

    Very good reading!!
    It is obvious Mr O’Hara is deeply entrenched in the defensive zone with the task of defending the 20%of Dr’s who cause most of the problems.
    This 20% Kill 100k per yr in the USA.This 20% can’t drive a nail straight but money has got them a deg to treat humans with major injury or heath issues.
    The reform that is need will Only come from the Dr’s who understand the fact that there are Some who Do Not have the skill or mindset needed to treat Any human in a Correct manner.Some of these Dr’s just plainly Suck to be blunt.
    And as far as the “Certificate of Merit” goes. In major cases like Foreign Objects,Wrong Site operations,Cover-ups of malpractice plus many more acts of clear malpractice, You can wipe your ass with the COM its not needed in clear acts.
    (The Thing Speaks for itself)Hopefully the CO of the site will go into depth on the COM issue.He knows more then me about its usage.I just wanted to throw a stick into the front spokes concerning the COM issue.
    The bottom line is
    Until Dr’s start to police there ranks,Stop protecting those who cause harm Mr Ohara will have a big case load and should
    set his reserves accordingly.
    Theres no hiding it.I’m a Big Fan of protecting the people from Dr’s who care more about there bank acct then the people they treat.
    We all make mistakes But when a Dr makes a mistake he is told to Not Addmit to anything by the likes of Mr Ohara.This Tactic alone Kills Many.
    Fact is, Dr’s who do the right thing are less likely to see any action and if they do, the pay-out is much less. looks good to a jury that he manned up to his mistake.We all make mistakes How you handle them is what counts.
    The recent Shake Up of the VA Dr’s and how they conduct treatment of the men who bled for them should give you a feeling of the reform needed.Criminals to say the least.
    Again, Great reading here!
    Thx
    A Bull
    usaco 1Batt/327th HHC Med-Corps 1967-87

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