The myth of frivolous medical malpractice cases

A frivolous lawsuit is legally defined as (1) one that is wholly without merit, (2) one which the plaintiff knows has no chance of succeeding if pursued, or (3) one which is brought solely for the purpose of harassing the other party. A look at the cold, hard, objective facts demonstrates that, contrary to what the medical malpractice liability insurers would have you believe, very few entirely baseless medical malpractice case lawsuits are filed each year. The belief that there is an “extraordinary amount” of unjustified litigation against physicians is essentially a myth perpetuated primarily by the insurance companies to justify the high premiums they charge.

According to the National State Courts, of all the civil cases filed each year only 7% are for personal injury and wrongful death, and of this 7%, medical malpractice and product liability cases combined make up only 1%. A study by the Rand Institute for Civil Justice found that only 10% of Americans who have been victims of a physician’s negligence file a claim for compensation, and just 2% file a lawsuit.

It is estimated that up to 85,000 medical malpractice lawsuits are filed each year, while another million patients are injured every year by a physician’s error but do not file a claim or lawsuit. The main reason many injured patients, or survivors of a deceased patient, do not file a lawsuit is because they have no reason to suspect the physician did anything wrong. This is especially true in injuries and deaths due to diagnostic errors, which ironically are the leading complaint in medical malpractice claims.

Do the requirements of a 90-day Notice of Intent to Sue and a Certificate of Merit really make a difference?

As part of the “tort reform” movement to, among other things, cut down on the number of alleged frivolous medical malpractice lawsuits being filed, California requires a 90-day Notice of Intent to Sue to be served on the defendant health care providers. Then, when filing the complaint, the plaintiff’s lawyer must file a Certificate of Merit declaring under penalty of perjury that he has consulted with and received an opinion from a health care provider familiar with the issue and such provider opines that there is a reasonable basis for bringing the lawsuit. If the lawyer is unable to find a health care provider willing to review the case, he can file a certificate stating that he made three good faith attempts from three separate health care providers to obtain this consultation but none of them would agree to it.

Have the 90-day Notice of Intent to Sue and the requirement of a Certificate of Merit reduced the number of frivolous malpractice cases brought against physicians? Since there were no hard statistics on the number of frivolous malpractice cases filed each year before the Notice of Intent and Certificate of Merit were required, it is impossible to gauge their effect, if any, on the number of alleged frivolous malpractice cases brought annually since they were mandatory. In real life practice, Notices of Intent to Sue and Certificates of Merit are really unnecessary because medical malpractice cases are so expensive to prosecute and the patient’s lawyer in most cases is advancing the exorbitant costs of prosecution, the lawyer – who is working on a contingency fee basis – generally will not accept a case unless liability is fairly clear and the damages are at least $500,000.

One major problem is how do you decide whether a case was frivolous when it is first filed? The fact that a jury ultimately exonerates the physician does not alone prove the case was frivolous or wholly meritless. Neither does the fact that a judge dismissed the case at an earlier stage, such as by granting the defendant’s motion for summary judgment, demurrer or motion to dismiss the case.

A common misconception among the general public is that plaintiffs’ lawyers will file frivolous lawsuits in hopes of getting a quick $200,000 or $300,000 nuisance settlement from the insurance company to make the case go away. The truth is that insurance companies do not settle frivolous medical malpractice cases and will take them all the way to trial. Lawyers filing such frivolous lawsuits in the hope of getting a quick nuisance settlement would soon go bankrupt.

Why lawyers will not take most medical malpractice cases

Many personal injury law firms will not even accept potential medical malpractice lawsuits for a number of reasons:

They are time consuming, complex, difficult to prove and require a certain degree of expertise. Just because a lawyer has been successful in other fields of personal injury law, such as automobile collision or product liability cases, does not mean that he will be successful in handling medical malpractice cases.

Medical malpractice cases are extremely expensive to prosecute, costing anywhere from $50,000 to $150,000 or more to prepare and try. One of the major expenses is getting qualified experts to review the case and provide expert testimony; often just to get a qualified expert to look at the facts of the case and review the medical records costs $5,000 or more, and there is no guarantee that the reviewing expert will find the physician at fault or agree to act as an expert witness even if he does so find.

Because the typical victim of medical malpractice is not the president of a large bank or CEO of a Fortune 100 corporation, the usual victim does not have the money to pay for the lawyer’s costs and expenses as the case winds its way through the legal system, so the lawyer must advance these expenses on the client’s behalf. That means that the lawyer must advance the $50,000 or more out of his own pocket to cover the costs on behalf of the client. If the lawyer doesn’t obtain a favorable settlement or award for his client, not only does he not collect a fee (almost all medical malpractice cases are taken on a contingent fee basis, whereby the lawyer gets a fee only if he wins the case), the lawyer also does not get reimbursed for the costs and expenses advanced. For this reason, medical malpractice lawyers and law firms must have large “war chests” to fund their cases. The patient’s lawyer has only limited funds to properly prepare and try the case and must spend this money wisely. The insurance company, on the other hand, has a seemingly unlimited supply of money to it and will not hesitate to spend it. The more serious the case the more money the insurance company will spend in its defense of the physician.

Medical malpractice lawsuits are very hard to win at trial. Researchers with the Orthopaedics and Related Research Journal looked at 20 years of medical malpractice trials and found that physicians won 80% to 90% of trials where the evidence of malpractice was weak, 70% of the borderline cases, and an astonishing 50% of the cases where the evidence of malpractice was strong. The American Medical Association reported that only 7% of medical malpractice cases filed actually make it through the trial stage and of those physicians win 88% of the time.

It just doesn’t make sense for a reasonable and ethical lawyer to prosecute a patently meritless malpractice case that is probably going to be thrown out of court by a judge. But it is a true and sad fact that a few lawyers and their clients see some million- and multi-million-dollar jury verdicts in medical malpractice cases that seem of dubious merit and figure that’s an easy way to make a lot of money. So they pursue a baseless case against an innocent physician, gambling that the jury will find the client a sympathetic plaintiff deserving of compensation and will award him or her a handsome amount of money. This is often referred to as the quest for “jackpot justice.”

The real medical malpractice crisis is not in the number of frivolous medical malpractice cases being brought against physicians and other health care providers; rather the crisis is that so many preventable errors are being committed in the first place. While the tort reform measures may have resulted in a reduction of medical malpractice lawsuits, they have done absolutely nothing to reduce the incidence of medical malpractice. Tens of thousands, perhaps hundreds of thousands of patients are victims of medical malpractice each year but for whatever reason the vast majority of them do not file claims or are inadequately compensated for their injuries or loss. Those are the victims we should be concerned about and not the miniscule number of patients who file frivolous lawsuits, which in most cases get knocked out of court quickly.