Frivolity must include the lack of a good-faith basis to bring a claim.

The author’s of the study noted themselves that 16% of the 40% cases you call “frivolous” were “close calls”. Of the remainder, there may have been bad outcome and a legitimate question that some error or ommission led to the harm. In other’s there may have been a serious error that put the plaintiff in harms way, but resulted in no significant additional illness or loss of money.

There were probably some cases were the defendent and/or his lawyer filed without a good-faith belief that a tort had been committed… but they were probably not a large percentage of the 40%.

Some times issues of negligence, injury, and causation in medical cases are complex and need review of the complete record and deposition to settle. It sometimes requires filing suit to get a full appraisal of the evidence. If it should later turn out that there is no reasonable basis for maintaining a claim, that does not mean the filing was “frivolous”.

You are using a loaded term when you use that word and you should use it appropriately.

If this statement were true, you’d be correct. Unfortunately, studies like this one show that it’s not. As do studies performed by other physicians.

You’re still batting .000. Hopefully your medical diagnosis rate is a little better.

No, because this would not stop the epidemic of suits that are brought about for one reason: Bad outcomes. A “complaint office” will not help patients stop smoking 3 Rocks of cocaine a day, drinking till they fall down, showing up at the ER only when they’re too drunk to walk, and falling and hitting their heads because of all of the above. Then the family shows up out of nowhere, and wants to know why did “the ER SCREW UP”, when mom dropped dead after doing all those drugs.

CJD”

where “my” = plaintiff lawyer.

No it doesn’t. This study didn’t tell you at what stage these “frivolous” suits were stopped. Nor did it reach the conclusion that 40% of all suits were “frivolous”. It said of the 37%, at least 16% were “close calls”. What “close calls” means, I don’t know, but it would seem that if it were close, it would not be frivolous.

And remember, this study appears to include only filed cases. Pre suit settlements are also part of the tort system, although not officially.

And if your friend lost 25 out of 35, and presuming the average cost (according to the insurers) of taking a med mal case to trial is $100,000, he most certainly did NOT have a very good net off of just one $800,000 fee.

I strongly suspect many Patient Relations/Risk Management offices today exist mostly to profile patients that they think might pose a lawsuit risk and “proactively” silence them by such means as terminations, using such grounds as “past interactions” which leave the patient unable to defend him/herself. Thus, they bring lawsuits on themselves.

However, I think its a serious problem when 4 out of 10 suits are by definition “frivolous”

The study authors seem to think that since very few of the frivolous suits resulted in payment, that its essentially a “no harm, no foul” situation.

However, that conclusion DIRECTLY contradicts their finding that ALL suits, whether frivolous or not, take a long time and a lot of money to resolve. Even frivolous suits require tens of thousands of dollars.

Frivolous suits should be removed by summary judgment. My lawyer friends tell me that all friv suits are handleed this way. This study shows that to be BS. Another favorite claim of my lawyer friends is that lawyers will go out of business if they file friv suits. Once again, this study proves this to be BS.

If 40% of suits are really frivolous, that means tons of lawyers should be going out of business. But of course thats not whats happening.

The financial calculus behind suits is simple. Frivolous lawsuits are perfectly acceptable, as long as you have some legit suits to make up for them.

One lawyer I know closed 35 medmal lawsuits last year. Of those 35, 22 were dismissed with no trial (i.e. frivolous lawsuits by definition), 9 were settled out of court, 3 were lost in trial, and he won 1 case.

Now based on that data alone, you’d assume he would be going out of business right? After all how can you lose so many cases and still stay in business? However, this guy did great financially. He’s not a multi-millionaire, but definitely in the upper middle income range.

That 1 case he won resulted in a fat lawyers fee of over $800,000, which was MORE THAN ENOUGH to cover his losses on all the frivolous lawsuits he lost.

Summary: med mal law is analogous to throwing feces to a wall and seeing what sticks.

Well…..of course it’s a med blog.

I actually think caps are a band-aid that does not adequately compensate some people. A better system for everyone would be a loser pays system in which cases would be screened by a board of non-biased medical to weed out the BS (with oversight by medically exposed legal/laypeople to keep the system honest). Do you think this will ever happen with our contigency system. With who makes the laws….never.