<p>Probably most of them give up after being turned down by 3 or 4 lawyers.</p>
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<p>That’s complete nonsense, and it’s easy enough for you or anyone else who happens to be reading this to check.</p>
<p>The next time you or a family member has (just) a bad medical outcome, start calling up medical malpractice attorneys about it. Explain that there is very little evidence that the doctor did anything wrong, but you want to file a claim in order to extract a quick nuisance settlement. See how far you get.</p>
<p>Personally, I get 20 or 30 calls a week from people who think they’ve been wronged in some way. If I could sign up each person and extract a $5000 nuisance settlement, I would be able to clear well over a million dollars a year and by now I would own the office building I work in. Last time I checked, I was the one writing the rent check every month.</p>
<p>What does happen is that when I file good or even strong cases, defendants often try to settle the case. More often than not, those defendants tell me (and probably believe themselves) that the case is frivolous and they are just making a nuisance payment to make the case go away.</p>
<p>That’s human nature – most people, when they get sued, simply cannot accept the possibility that maybe, just maybe, they did something wrong. I suspect that’s how the myth got started that some sizeable percentage of lawsuits are frivolous strike suits. That and jealousy of plaintiff’s attorneys who occasionally reap windfalls.</p>
<p>It’s the insurance companies that talk about “frivolous” at least as much as the defendants, so it’s not necessarily personal. They believe that the case will cost more to defend than settle. Human nature is to find someone to blame, lawyers help fulfill that need.</p>
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<p>As someone pointed out upthread (when it seemed a Ferrari was your goal), you still would have to take the time to work on each case. Getting back to topic: if there is a glut of lawyers, there will be a % willing to work harder for less.</p>
<p>Probably the insurance companies are trying to get laws passed to raise more barriers to lawsuits. So it’s in their interests to promote the myth that there are a lot of frivolous lawsuits out there.</p>
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<p>Sure and the point is that it’s not ecomically viable to take on frivolous cases with the idea of extracting nuisance settlements. This is even more so in the medical malpractice arena since it’s so expensive to prosecute a med-mal case. Which is why truly frivolous med-mal cases are very rare.</p>
<p>But like I said, there’s no need to take the word of a stranger posting on the internet who claims to be an attorney. The next time you or someone in your family has a bad medical outcome but there is little evidence of any wrongdoing by the medical professional, just call up some med/mal attorneys. Explain that you read on the internet that you can just file a suit and get a quick nuisance settlement from the insurance companies. If what you are saying is true, it should be no problem finding an attorney willing to represent you.</p>
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<p>But there will never be a significant number who are willing to work for a negative amount of money. Which is essentially what is entailed by the business model you are proposing.</p>
<p>The most recent empirical literature I’m aware of suggests that approximately 17% of all filed med mal lawsuits are meritorious. (This is based on filings, not ultimate outcomes.) However, it also suggests that of all actual malpractice-leading-to-harm, only 2% of those cases are ever filed.</p>
<p>In other words:
For every 6 filed lawsuits, there is 1 legitimate one. However, there are another 50 things that would be legitmate cases if only somebody would actually file the lawsuits.</p>
<p>F.J. Hellinger and W.E. Encinosa, The Impact of State Laws Limiting Malpractice Damage Awards on Health Care Expenditures, 96 AM. J. PUB. HEALTH 1375 (2006).</p>
<p>Yeah, sorry – I had to go back and edit because my memory had failed me a little bit, and (in addition to the corrected number) I added the cite the second time around.</p>
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<p>Those are further cited to:
*Localio AR, Lawthers AG, Brennan TA, Laird NM, Hebert LE, Peterson LM, et al. Relation between malpractice claims and adverse events due to negligence. N Eng J Med. 1991; 325: 245–251.</p>
<p>Brennan TL, Leape L, Laird N, et al. Incidence of adverse events and negligence in hospitalized patients: results from the Harvard Medical Practice study I. N Engl J Med. 1991;321: 480–484.*</p>
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<p>I will admit that the further cites are to 1991, which I hadn’t realized when I was looking up my previous bibliography. 19 years is a long time in health policy.</p>
<p>Whatever, I’m not going to spend anymore time looking for evidence to support the 17% figure. I’m pretty confident that either (1) you are mis-remembering; (2) the study authors are using an unusual definition of “meritorious”; or (3) the study is just plain wrong.</p>
<p>Anyway, how would one measure the percentage of filed med-mal cases which are lacking in merit? You can’t tell just by looking at the complaint – you would need to be very familiar with the case file. If you polled the attorneys representing the plaintiffs in those cases, you would learn that 0% are frivolous. If you polled the defense attorneys, you would learn that 95% are frivolous.</p>
<p>You could go by ultimate outcome, but that’s misleading too. As a plaintiff’s attorney, I have no problem believing that of the medical malpractices cases which actually go to trial, the defendant wins 83% of the time. The best cases tend to settle early and in any event, judges and juries tend to side with defendants, particularly doctors.</p>
<p>Seems to me you are in fact mis-remembering. The word you used was “meritorious” but the quote you provided says “negligent injury” And that’s not even from the article itself.</p>
<p>One can easily imagine valid medical malpractice claims which do not involve “negligent injury.” For example, suppose a hospital sues a patient over a bill and the patient files a malpractice counterclaim, alleging that the treatment was unnecessary or did not achieve the promised result? Or what if a patient files a medical malpractice claim alleging that he never consented to some aspect of a procedure?</p>
<p>Seems to me it’s a game of telephone going on. I bet if you tracked down the original article it doesn’t say anything like what seem to think that it says.</p>
<p>Of course not. I was just giving an example of how the study might not say what you seem to think it says.</p>
<p>But without knowing what the study actually says, there’s really no way to account for any discrepancies or even to know if there are any discrepancies.</p>
<p>The fact of the matter is that the filing of frivolous medical malpractice claims in order to extract nuisance settlements is extremely rare, which you can easily verify for yourself simply by calling medical malpractice attorneys and seeing if they are interested in your (frivolous) case.</p>
<p>I spent a dozen years in private practice before I went in-house. (Switching from a PI practice to an IP practice is harder than the acronyms suggest.) I’ve the experience a couple of times of trying unsuccessfully to refer cases with clear-cut medical malpractice to people who handle those cases. California law limits pain and suffering damages in medical malpractice cases to $250K; that figure isn’t indexed to inflation, so it effectively shrinks every year by the rate of inflation. Attorney’s contingency fees in medical malpractice cases are statutorily limited as well. The cases are expensive to try, as you need to pay a physician who’s willing to testify that another physician was negligent. That usually means flying someone in from out of town, and paying him/her by the hour for the entire trip. Then you deal with the fact that juries tend to like physicians more than they like attorneys, which can lead to defense verdicts more often than may be warranted by the facts (in my view).</p>
<p>Legal malpractice cases are actually a lot more common than medical malpractice cases. The adversarial nature of the legal practice makes attorneys much more prone than physicians to call their fellow practitioners to task for their mistakes.</p>
<p>Any study which focuses on trial outcomes to gauge malpractice “frivolity” is, as lskinner points out, flawed. Most really bad cases are settled before the jury deliberates. Some really bad ones are settled before any papers are even filed, and therefore don’t make it into court statistics. Rather than running around filing frivolous suits, many patients who suffer malpractice injury do nothing. This usually is because the injury was short-lived (e.g., given the wrong medication and threw up for 2 days, then got better) and/or the patient didn’t suffer financial loss.</p>
<p>On the other hand, there are suits which you might count as frivolous. They happen when the patient’s attorney files a well-founded suit, then names everyone whose name appears in the medical record. So it’s not that the malpractice allegation is frivolous, but that most of the defendants know they didn’t do anything wrong and perceive the case as frivolous. From their perspective the suit is frivolous. From the perspective of the jury, the the suit is not at all frivolous, and of a total of 5 - 6 defendants, 3 may have been cleared, but the others may have committed a real error.</p>
<p>If I went to a restaurant with table service, I would expect the waiter/waitress to secure my coat if I left it at the table. If the restaurant credibly told me that they never saw the coat, then I would let it go. But that doesn’t seem to be what happened here.</p>
<p>In any event, this doesn’t seem to be a frivolous case. Probably a restaurant does have some kind of minimal duty to secure property which customers accidentally leave behind. If it turns out that this restaurant failed in its duty, then it should potentially be liable to its customer.</p>
<p>Regardless, and assuming for the sake of argument that this claim is frivolous, it seems like pretty weak evidence that there are lots of frivolous strike suits out there. Indeed, this claim has not even been filed in court.</p>
<p>Should I likewise hold all dentists in contempt because of the local practitioner who was convicted of molesting several of his patients? (Your name suggests that you practice dentristry when you’re not cavorting with movie stars on Tralfamadore.)</p>
<p>No one here was suggesting that lawyers never file frivolous actions, or threaten to do so. We did suggest that there are disincentives for filing such actions. They waste the time and money of the attorney who files them. A pattern of filing truly frivolous actions can result in extreme cases in the loss of a license to practice law.</p>
<p>I once entered a diner and was immediately presented with a hat I had left there on my last visit, eighteen months before. Some restaurants do believe that they have a duty to undertake reasonable steps to safeguard the belongings of their patrons when they accidently leave without them.</p>
<p>Optometrist, correct. And point well taken, but I am amused that you guys are defending this lawyer. It was a fast food place in a food court at a busy airport, not a four star restaurant with a coat check.</p>