THE REAL TRUTH ABOUT FRIVILOUS MEDICAL MALPRACTICE LITIGATION---IT'S THE DEFENSE!

Most defense verdicts in medical malpractice trials represent wrong decisions for wrong reasons that have had nothing to do with the merits of the case. The favorable verdicts defense obtain in the vast majority of medical negligence cases that go to trial are touted by the "tort reformers" as evidence that there is too much frivolous litigation against doctors. The claimed doomsday result is that, unless we find ways to stop this barrage of frivolous litigation, physicians will be driven into early retirement or to abandoning their health care professions in favor of a less litigious work life.

Nothing could be farther from the truth.

Think about it. In the first place, why would so many of the medical negligence cases that go to trial be frivolous? Putting aside the safeguards built into the system that are designed to weed out frivolous cases before they reach the trial stage, what attorney in his right mind would do it? Not many, if any, and those few that might do it once will not be around long enough to do it twice. Medical negligence cases take 3-4 years of hard work from the time they come through the door to the time they go to trial. In addition to devoting a significant part of your work life to the case during those three years, a plaintiff's attorney is also committing a significant portion of the available time of his legal staff to this case. The plaintiff's attorney is also investing typically from $100,000 to $300,000 of his own money into the case in order to bring it to trial. And. of course, unless his client's case is successful, the plaintiff's attorney has done all this and spent all this money for nothing---the representation has been on a contingency fee basis which means if there is no recovery, there is no fee and no reimbursement of costs.

The only attorney who can afford to be involved in a frivolous medical negligence case is the defense attorney. Defense attorneys don't select the cases they will defend---the cases are assigned to them by their medical liability insurance clients. Defense attorneys don't have to screen the cases for their merits because, whether they win or lose, they get paid---they don't work on a contingency basis. And defense attorneys don't have to worry about the merits of the case they are defending as far as how much the case will cost out of pocket because all of the litigation costs are paid for by their insurance company client.

The importance of this difference is the impact it has on what kind of frivolous cases go to trial. By and large, the frivolous medical negligence cases that go to trial are those that are frivolous from the standpoint of the defense!

Why then, do the majority of medical negligent cases that go to trial end up with a defense verdict? Because the playing field is not level and the injured patient has an uphill battle to overcome from day one to the day the verdict is rendered. The entire system is gamed in favor of the defendant.

A recently published article bears this out. The article reported on a retrospective study of medical negligence cases that had gone to trial. Each case was submitted for a blind review by a panel of physicians to determine whether the medical negligence case was meritorious. The result was that in the vast majority of the medical negligence cases where the jury had returned a verdict for the defense, the medical panel found the case was in fact meritorious and that the health care provider involved had been negligent.

Tort reform is needed in our civil justice system. But the reform we really need are changes to our system that will level the playing field and eliminate the unfairness that currently exists to those seeking compensation for harm they have suffered due to the medical negligence of their treating physician. What we don't need are any more draconian measures that will further insulate negligent members of the health care industry from responsibility for their carelessness.

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