The Myth of the Frivolous Lawsuit
Do people really sue just to make a buck?
Most of us have heard the term “frivolous lawsuit” tossed around. We’ve all heard the one about the judge who sued his dry cleaner for millions of dollars because the cleaner lost the judge’s pants. Ridiculous. But these ridiculous suits happen all the time, especially to doctors, nurses, and hospitals, who are blamed and sued every time a patient has an unfortunate outcome, right?
Wrong. Contrary to popular belief, frivolous medical malpractice suits are a rarity. Again, frivolous lawsuits against doctors and hospitals are very, very rare. By the time a medical negligence lawsuit is filed in court, careful research has been done on the alleged claims to ensure they are meritorious. In fact, Rule 3.1 of the Ohio Rules of Professional Conduct, the set of rules that all attorneys must follow, states, “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.” Therefore, if attorneys regularly filed frivolous lawsuits on behalf of their clients, they would be subject to disciplinary proceedings. They would also be subject to monetary sanctions under Ohio’s Rules of Civil Procedure.
When it comes to medical negligence cases, protections against the filing of frivolous lawsuits are even greater. Rule 10(D) of the Ohio Rules of Civil Procedure requires an individual filing a malpractice suit to file along with the suit a sworn statement (called an “Affidavit of Merit”) of an expert physician, stating that the physician has reviewed the medical records, is familiar with the applicable standard of care, and that the doctor or hospital who is being sued violated the standard of care and caused injury. Many states have similar procedures but only require an affidavit that says the case “might have merit.” Ohio requires a pre-suit determination by an expert that the case is in fact legitimate.
Aside from risking disciplinary proceedings and possible monetary sanctions, attorneys who file frivolous medical malpractice lawsuits on behalf of clients inevitably lose money; sometimes lots and lots of it. Medical malpractice cases are among the most expensive types of claims in civil litigation, largely due to the research and investigation that is required throughout the case. Medical experts, economists, and a number of other individuals are often consulted and deposed during a medical malpractice case. If an expert must fly across the country to attend a deposition, that expert may charge several thousand dollars for his or her time—and that is before the expert may be required to testify in trial for several days. Clearly, the costs of a medical malpractice case can multiply quickly. At The Eisen Law Firm, it is not uncommon for us to invest over $100,000 in a malpractice case. And, remember, in medical negligence cases, the client typically is not responsible for any outlay of money. It is the attorney who fronts all the money and who eats the expense money if the case is lost. Attorneys are not going to put out large sums of money on a frivolous case. Why would they? It simply does not happen.
If frivolous medical malpractice cases were filed regularly, one would expect to see thousands of claims pending on court dockets across the country. However, this is simply not the case. In fact, less than 5 percent of all court cases are comprised of medical malpractice cases. These claims are certainly not clogging the court systems and wasting court resources.
So, it really isn’t true that doctors and hospitals are regularly the “victims” of frivolous lawsuits. In fact, contrary to what most people – especially doctors – think, even when a doctor screws up, the odds are he or she will not be sued. Yes, that’s right: even in cases of provable negligence, most of the time no lawsuit is filed. Research shows that only 1 percent of adverse events caused by medical negligence results in a medical malpractice claim.
In conclusion, filed medical malpractice cases are almost never frivolous. By the time a claim is filed with the court, hours and hours of research and fact-checking have been completed, and an expert has sworn under oath that the case has merit. Then, by the time the case makes it to a courtroom and a jury, it has survived many legal challenges by the defense, and it has been determined by the court that there is enough evidence to proceed to trial. Frivolous cases are stopped in their tracks long before the courtroom and in almost all cases, long before a lawsuit is ever filed.
At The Eisen Law Firm, our Cleveland medical malpractice attorneys have advocated for clients in these claims for several decades. We are skilled in pursuing meritorious claims against a variety of medical professionals, no matter what type of injury you may have suffered. We offer a free consultation and case review for your convenience. To set up your free consultation, call The Eisen Law Firm at 216-687-0900 or contact us online.