Myth of the Frivolous Medical Malpractice Suit

For over forty years dim-witted politicians, ideologically blinded medical doctors, profit driven medical malpractice insurance companies have lamented the “frivolous medical malpractice lawsuit”. I can say with assurance after some forty years spent representing patients injured by medical negligence that the “Frivolous Medical Malpractice Lawsuit” is a myth. A unicorn born of legend with the magical power to drive insurance rates into crisis and doctors to practice defensive medicine for no reason other than to avoid being sued. I hope to debunk that myth with some simple logic born of logic and common sense.

  1. Presuit Screening Requirements. The vast majority of jurisdictions have adopted some sort of presuit screening requirement before an injured patient may file suit. While the requirements may vary from state to state, an injured patient (unlike just about any other type of injured claimant) cannot just march to the Courthouse, pay a filing fee, and sue a health care professional. Instead, the records must be reviewed and often sworn reports produced from qualified experts in the same (or at least similar) field with experience in the procedure before the lawsuit can be filed. While one’s perspective may define whether a claim is “frivolous” or not, a qualified healthcare professional thought it was meritorious.
  2. The Costs of Bringing a Case Are Prohibitive to Frivolous Cases. There is no way to get around it- medical malpractice cases are among the most time consuming, labor intensive, and expensive personal injury cases in the tort system. No case should ever be taken without the expectation that it may have to go trial. Medical malpractice insurers do not settle easily and many will defend far beyond the value of any small case. An inexperienced young lawyer may take a small marginal medical malpractice case once- and after losing over a $100,000.00 or more at trial will never do it again. Hence, the extraordinary financial risk to the lawyer presents an inherent control over a lawyer bringing a “frivolous” case.
  3. Medical Specialty Professional Groups Aggressively Monitor the Testimony of their Members. You cannot proceed without a competent expert and usually a highly trained board certified specialist. Medical specialty boards are monitoring the testimony of their members and are acting aggressively to sanction specialists who do not adhere to standards of honesty and fairness in their testimony (although it seems that more leeway is always given to the testimony of the defense expert than the expert for the patient). Board certified specialists are careful to put their professional credentials at risk with testimony in support of “frivolous” cases.

These are three simple arguments to dissuade the myth of the frivolous lawsuit. A skilled medical malpractice lawyer Orlando FL trusts declines even to investigate over 95% of the contacts we receive from patients claiming medical negligence occurred. When a case meets our criteria for acceptance it is far from “frivolous” and usually involves a life changing event due to clear deviations from accepted standards of practice. We cannot afford to take risks on “myths”.

Law Offices of Needle & Ellenberg P.C. Thanks to our friends and contributors from Law Offices of Needle & Ellenberg P.C., for their insight into medical malpractices suits.