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Frivolous? Not so fast...

Posted by attorney Jason Mayberry

Lets cap them! Lets create a pre-suit period to ensure meritorious claims! Lets hide from the public records of all our mistakes! Slice it how you want, Republicans have bent over backwards in most states to make bringing a medical malpractice case against a doctor or hospital ridiculously difficult. Florida medical malpractice cases can be extremely difficult to bring if for no other reason but cost. Try telling someone who has been maimed by an inept medical professional that we can't bring a case for them because their injuries aren't permanent. Lead balloon anyone? All of the "safeguards" I've mentioned have been implemented under the sham created by the healthcare industry that this will help prevent "frivolous" lawsuits against them. Bah humbug. I recently read an excellent blog entitled, "No "frivolous lawsuits" here," by Christine Hines. Ms. Hines hit on several high points for why the so called "safeguards" implemented by our Red friends and their Purple friends don't do a damn thing to prevent frivolous litigation. I believe the very nature of medical malpractice litigation operates to prevent the filing of baseless claims. 1) Frivolous Lawsuits are rare- Ms. Hines cited a survey of federal judges wherein 85% of those judges polled, perceived "groundless litigation as no more than a small problem. Ok. How about the State Circuit Level Judges? I'm betting the lion's share of them would concur with the Feds. Bottom line, most plaintiff's lawyers in Florida refer their potential medical malpractice cases to those few guys that still handle them. In my experience working with and against medical malpractice attorneys, I've found them to be the biggest guns out there. The plaintiff's lawyers that still handle Florida medical malpractice cases are only going to move on meritorious claims. Only a fool would embark into a case where A) he isn't familiar with the practice area, B) has to shovel out no less than 10K to prosecute a case, and C) is going to be pushing this case forward at the pace of Sisyphus and his boulder. Combine those reasons with the idea that an attorney must informally prove his case against the healthcare industry five times as well as he would were the defendant Joe the Plumber, and you don't have attorneys chasing these claims like the cheese chasers at Cooper's Hill. The long and short is that I'm willing to bet most state level Circuit Judges don't believe the medical malpractice cases before them are frivolous/groundless due to the quality of lawyer screening them from the outset. 2) Injuries v. Claims made- One word, DISPROPORTIONATE. Within Ms. Hines' blog she cites Law professors David Hyman and Charles Silver who estimated that "there are nearly 12 times as many injuries caused by medical negligence as malpractice claims." I disagree. 12 times doesn't touch it in sunny Florida. I don't know what the number is, but I know how many I accept versus how many I decline. Typically there is one or two of the puzzle pieces but not the real linchpin. There might be catastrophic injury but that injury is an accepted risk of the surgery and no negligence can be shown. There could be great liability but the injury isn't permanent and only minor to average at that. Couple that with the difficulty of working around damage caps and the importance that puts on tangible damages and that presents a problem if your client works under the table or for tips. Unlike an auto case where you look for 1) liability, 2) minimal comparative fault, 3) insurance availability, and 4) permanent injury; a medical malpractice case requires a considerably more stringent screening process. It goes something like this, the potential client is hurt. That client either elects to pursue the claim or not pursue the claim. If they don't pursue the claim, return to "GO" and collect $200. If they pursue the claim they call an attorney and then the strenuous screening process begins. So, a considerable amount of injured potential clients screen themselves using a common sense approach to Professor Hyman and Professor Silver's assertion. Take those that want to go forward and minimize that number to about 1 of 50 having a pursuable claim and you have a miniscule amount of people ready to bring a Florida medical malpractice claim. An assertion that there are large amounts of frivolous/groundless litigation doesn't wash. 3) Increasing Insurance Costs- Not our fault. Perhaps the medical field should do a better job policing themselves rather than pointing their finger at the attorneys. Specifically to Florida, according to the article, "Florida's Real Medical Malpractice Problem: Bad Doctors and Insurance Companies Not the Legal System," ("Real Problem") 6% of the doctors in Florida account for 50% of the Florida medical malpractice cases. Here's a novel idea, how about implementing harsher penalties to weed out the bad doctors, thereby eliminating much of the malpractice and in turn decreasing the cost of medical malpractice insurance. Never. Blame the lawyers! What about penalties that were imposed? According to Real Problem, only 36% of Florida's disciplinary actions in 2001 were serious. Real Problem defined those serious actions as those involving license revocation, suspension, surrender or probation. Only two states were worse. When the healthcare industry squeals about frivolous litigation, they are bootstrapping problems they've created into a nice "blame the lawyer casserole." The statistics in this paragraph aren't material for showing how much frivolous litigation exists, what it does do is show an alternative as to why medical costs and insurance are high. So, contrary to what the healthcare industry would love for you to believe, frivolous medical malpractice suits are not a problem. Furthermore, they are not the driving force for increased medical malpractice insurance and healthcare costs. No need, President Obama to work with Republicans to "rein in frivolous lawsuits" in order "to bring down costs" as you mentioned in your 2011 State of the Union. Lawsuits are not driving up costs for Dr. Feelgood, nor are they increasing costs for Joe the Plumber. The problem lies within those state doctor watchdog organizations, ironically operated by, you guessed it, doctors. Doc, quit pointing at lawyers and take your scalpel and amputate that portion of your buddies that are driving up your costs.

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