A recurring theme in the call to "reform" medical malpractice litigation is finding a way to curb "frivolous" claims. In his recent State of the Union address, President Obama said: " . . .I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits."
That's fine. And harmless enough, I suppose. I say "harmless," because of this simple fact: there is no crisis caused by frivolous medical malpractice lawsuits. I know this for an indisputable fact. I know this because I have been a medical malpractice trial lawyer for well over twenty years. During that time I have represented patients and their families, but I have also defended nurses, hospitals, physical therapists and doctors from most medical specialties. And while I certainly won't claim that no one has ever filed a frivolous medical malpractice case, I still know that frivolous claims are not a significant problem for our country. I know this because filing a frivolous medical malpractice case would cost a fortune for the person bringing the suit. Any lawyer who files frivolous medical malpractice cases will go bankrupt long before he has the time or opportunity to affect the system.
We lawyers, like everyone else, have bills to pay, and we need to provide for our families. Any medical malpractice claim I look at which lacks merit - which is to say, is frivolous - is a claim I decline to pursue. I know I will spend an enormous amount of time and energy without making a penny. Moreover, I know that I will have to spend money to bring the claim to trial, and there is NO chance I will ever get that money back.
Frivolous medical malpractice claims do not make money. They LOSE money. Big time.
Obtaining medical records takes time and costs money. Organizing them, reading them, understanding them and researching them costs time and money. And sometimes after spending this money, I realize the case nost likely cannot be pursued successfully. So we withdraw from the case before suit is even filed.
Finding expert witnesses takes time and costs money. Expert reviews cost money - LOTS of it. Filing lawsuits costs money. Taking depositions costs money. Traveling to the locations of the other side's expert witnesses costs money. Bringing my witnesses to trial costs money. And then, if it was a frivolous medical malpractice case, I LOSE. Since I, like virtually all attorneys who handles medical malpractice cases, take cases on a contingency fee - which means a percentage of the recovery- I get paid NOTHING for all my time and work if there is no recovery because it's a frivolous case. . Furthermore, the thousands and thousands of dollars I spent to bring the case to trial I will never recoup.
Accusing lawyers of filing frivolous medical malpractice cases is like accusing them of flushing massive amounts of money down the toilet, because the results are exactly the same.
I defy anyone to show me a lawyer who makes a living filing frivolous medical malpractice cases. It cannot be done.
That's my personal experience. And it makes logical sense. But what does the empirical research show? The most comprehensive review of the academic literature to date is contained in a book entitled "The Medical Malpractice Myth" by Tom Baker, a University of Connecticut professor who specializes in insurance issues. His conclusion? "If anything, there are fewer lawsuits than would be expected, and far more injuries than we usually imagine." He cites an extensive Harvard study - where over 31,000 cases were analyzed by doctors and nurses, who would be expected to be sympathetic to the position of the health care providers - that concluded doctors were injuring one out of every 25 patients, but only 4% of those ever brought a claim or sued.
But maybe badly injured patients don't sue, while the reflexively litigious clog up the legal system, so that frivolous medical malpractice cases are still a significant problem. But another Harvard study, released in May 2006, in reviewing 1,452 cases, found only six cases which might deemed frivolous. A much larger problem the researchers found were 236 cases where there appeared to be clear evidence of both injury and negligence by a physician, but the cases were thrown out of court. As one commentator noted, this study "demolishes" the possibility that cracking down on frivolous medical malpractice cases could be any solution at all.
About the Authors: Mic McConnell is a Richmond medical malpractice attorney and partner with the Allen Law Firm. Mic has handled challenging cases all over the state of Virginia in almost every medical specialty for over twenty years. Clayton Allen is a Richmond car accident attorney and partner with with the Allen Law Firm. Both attorneys have over 20 years of experience helping injured Virginians.
 A "frivolous" claim is defined as follows: "In law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related legal merit. While colloquially, a person may term a law suit to be frivolous if he or she personally finds a claim to be absurd, in legal usage "frivolous litigation" consists of a claim or defense that is presented where the party (or the party's legal counsel) had reason to know that the claim or defense was manifestly insufficient or futile. The fact that a claim is lost does not imply that it was frivolous." http://en.wikipedia.org/wiki/Frivolous_lawsuits.
 See Harvard School of Health, "Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits", at http://www.hsph.harvard.edu/news/press-releases/2006-releases/press05102006.html.  See "The Medical Malpractice Myth", in Slate magazine, at http://www.slate.com/id/2145400/#Return3.