Reply #5: There's NO SUCH THING as a "frivolous" malpractice suit [View All]

[GarySeven]

Judges regularly declare lawsuits "frivolous" if they have no legal basis - in fact, lawyers who file them (or prisoners filing pro se) are regularly sanctioned by courts.

"Frivolous" is actually a term of art used by defendants to challenge a lawsuit, not in a court of law but in a court of public opinion. By any real measure ANY lawsuit that survives the initial challenges to evidence and cause of action is NOT frivolous; the process has determined that whatever the plaintiff claims to have happened deserves at least a hearing before a jury. The process itself weeds out "frivolous" matters, or, alternately, shows the defense that the evidence is so strong they will certainly face a large judgment and should settle with the plaintiff.

I notice that in all the Bush Administration's claims about "frivolous medical malpractice cases" they never cite ONE example of such a case. In point of fact there CAN NEVER BE a "frivolous" malpractice claim because those actions are among the most complex to try in court. NO lawyer would ever take a malpractice case unless he were CERTAIN he had more than a 50 percent chance of winning. To prove med mal, you must show that the health care provider did not follow what the medical establishment itself has determined to be a proper course of care. To do that, a lawyer must get other doctors to tell a jury what that proper course of care is and exactly where the defendant failed.

BTW, the lawyer DOESN'T GET PAID unless he wins; his take on the judgment (up to 40 percent) may seem high, but it actually pays for all the work and research a lawyer's team has done to prepare for a case - and sometimes that can take up to a decade. Could you work on something for 10 years without any payment? Lawyers must take cases they are relatively certain will have a payout - but now the Bushies want to limit those payouts, removing a lawyer's incentive to take a case. That may seem fine to some people -- until they take medication that a company KNEW would create heart trouble, or have some other encounter with a company that puts profits over consumer service.

It does cost thousands of dollars to litigate any lawsuit, but that is often because the defense refuses to admit a mistake or liability. Jurors punish such defendants by ordering them to pay high punitives. But in almost all instances the damages awards issued by the jury - including the VERY worthwhile "McDonald's Coffee Case" - is reduced by the trial court.

As usual, the Bush Administration is trying to hoodwink people into supporting something that will actually harm them. The civil jury system exists not only to protect consumers, but also to protect capitalism itself by giving consumers a weapon to punish those businesses that put out dangerous products or put people at risk. The voters THINK they are doing something to strengthen the economy; what they are really doing is making it financially impossible for lawyers to take on the cases that will protect them as consumers.