Because "I'm going to sue" seems to be uttered as often as "What's for dinner?" these days, it's not surprising that the expression
"frivolous lawsuits" resonates—especially with physicians. There are so many suits, the reasoning goes, it's likely that many
of them are filed by people who hope to turn a less-than-perfect medical outcome into a quick payday. And in so doing, they've
made malpractice insurance more expensive than a luxury car, spurred some physicians to move to another state, change their
specialty, or pursue a different career, and forced doctors everywhere to waste time and money practicing defensive medicine.
Baseless lawsuits, experts agree, fall into two basic categories: those in which the patient may have an injury, but it doesn't
stem from the physician's failure to provide appropriate care, or those that are filed as part of a "shotgun" action in which
every doctor on the chart is named. "We're not saying that patients who have been harmed shouldn't have their day in court,"
says Almeta Cooper, the Ohio State Medical Association's general counsel and adviser to the organization's Frivolous Lawsuit
Committee. "What we're opposing are suits that never should have been brought." The committee, believed to be the first to
spring from a state medical association, was formed in 2003 as part of OSMA's multifaceted effort to address spiraling liability
insurance rates; OSMA has also been pushing for tort reform.
On the flip side of this contentious issue are those who maintain that the focus on meritless lawsuits as the chief cause
of high malpractice insurance rates is mistaken at best and spurious at worst. "Personal injury lawyers work on a contingency
fee basis," says David Karp, a risk management consultant in Cloverdale, CA. "Before they can file a lawsuit they have to
invest their own time and money. If a case is without basis, they're not going to get paid for it. Only a very inexperienced
lawyer—one who jumps to the conclusion that a bad outcome means bad medicine—would waste his time and energy."
Even the term "frivolous lawsuit" is inflammatory, Karp maintains. "It implies that a suit is filed by parties who know that
there's no case. That happens more often than it should in auto accident and workers' comp matters, but rarely in medical
malpractice situations." Palo Alto, CA, internist and attorney David W. Shapiro, editor of Professional Liability Newsletter, agrees with Karp's assessment and adds that, "In medicine, ostensibly unjustifiable accusations are triggered by a search
for information that the health professionals didn't or wouldn't provide, and thus could be prevented by better communication
with patients and families about adverse outcomes." For many experts, attempting to divide lawsuits into "with merit" and "without merit" categories is problematic. "There are
a small number of totally meritless cases," says James Robb, president of claims operations for Medical Liability Mutual Insurance
in New York. "But there are cases that we thought were defensible and took to court and lost. Yet if the defendant prevails,
is that a meritless case? The devil is in the details."
Point: Baseless lawsuits take heavy tolls
According to the most recent data from the Physician Insurers Association of America, 71 percent of medical malpractice cases
were dropped or dismissed in 2004, 22 percent were settled, 6 percent went to trial and were decided in favor of the defense,
and 1 percent went to trial and yielded a verdict for the plaintiff.
No one can say for sure how many of the dropped or dismissed cases were meritless, but PIAA president Lawrence E. Smarr surmises
that most of the cases that end without a payment to the plaintiff are without foundation. Yet these cases cost an average
of $24,970 to open a file, pursue the case, and close it, according to the PIAA. "A large portion of the premium dollar is
used to defend these claims," says Smarr.
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