Lawyers who play the liability lottery must be stopped

A message to all physicians from AMA president Donald J. Palmisano, MD

By Donald J. Palmisano, MDis a general and vascular surgeon in private practice in New Orleans. He was AMA president during 2003-04. Posted Feb. 16, 2004.

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The United States delivers the best quality of medical care in the world to scores of millions of its citizens. This quality of care, however, is under dangerous siege -- although the attackers number but a relative handful.

A small subset of the legal profession makes fortunes for themselves -- and creates costs for the rest of us -- by suing physicians. Whether it is justified or warranted is, for them, beside the point. It is an abuse of the legal system -- and it affects everyone.

This abuse is in the form of disingenuous lawsuits aimed at getting money from someone else -- instead of seeking compensation for someone with legitimate claims. Some might call it legalized extortion.

These abuses are choking the health care system. They are sending medical liability insurance premiums soaring for thousands of physicians, making it impractical, or impossible, for them to practice in many parts of the country.

These lawsuits lead to other agonies as well. For a physician, a wrongful suit can cause great harm -- embarrassment, loss of time, defense costs, injury to reputation and resulting loss of practice, stress and anxiety.

Meanwhile, cases with merit can take years to navigate an overloaded, confusing court system -- as they wait their day in court behind a traffic jam of frivolous suits -- brought by lawyers looking to win a litigation lottery -- and then taking a huge chunk of the award.

Authoritative studies have shown that awards do not correlate with negligence and noneconomic damages can't be objectively predicted. This creates an unstable environment akin to a chain reaction.

The trial lawyers who file the suits that breed this chaos operate in a system that imposes neither accountability nor restraint. The law puts up major obstacles to countersuits, and statutes that authorize sanctions for lawyers are rarely applied in medical liability cases.

More than 125,000 cases against physicians clog our nation's courts on any given day. Yet 70% of cases filed are closed with no payment -- and physicians win 80% of the cases that do go to trial.

Imagine the outcry if a physician had a record like that. As a surgeon, if 70% of the appendices I removed were normal, I would not be allowed to operate. Which is why I believe the medical community can agree that the time is right for a little peer review for the lawyers who file these worthless complaints.

The quest for justice against meritless, frivolous or wrongful suits filed against physicians continues after more than a quarter-century history of frustration.

The latest example (link) is the story of Julie K. McCammon, MD, a West Virginia obstetrician-gynecologist who is suing the state's trial lawyers association and its president for what she says are frivolous suits against West Virginia doctors.

"We have to have legal rights, too," said Dr. McCammon. "People think we are doormats to walk all over."

This has long been an issue of great interest to me. In 1981, I wrote an article for Louisiana's Loyola Law Review, "A Quest for Justice against the Wrongful Medical Malpractice Suit: Louisiana's Unique Advantage."

Unfortunately, the concerns I expressed then about the broken medical liability system have come to pass with a vengeance.

In the article, I wrote:

"Failure to correct the present injustice and afford physicians a cause of action for wrongful suits could have dire consequences later on if, at that moment in time when death tries to capture us, our rescue from danger is impeded by defensive medicine, by hesitation to use innovative techniques, or worse, by the unavailability of a physician."

For physicians, this article is still relevant more than 20 years later. In it, you will find examples of egregious, meritless lawsuits filed against physicians, documented in the legal literature, where the law provided no remedy. It discusses various theories of recovery, but unfortunately, physicians rarely win court cases against attorneys who file frivolous suits, because of obstacles such as "special injury" requirements.

Legal scholars have recommended removal of such impediments, as does AMA policy. Because if lawyers don't have accountability, they will continue to grab for tickets to the litigation lottery, where they can reap a third to a half of any damage award -- and it might be from the gross, not the net.

Now, as in 1981, attorneys can file lawsuits without any prior investigation to determine whether the claim is reasonable. An ethical attorney who discovered that the lawsuit was baseless would advise his client against pursuing it.

Yet some attorneys forge ahead and file suits anyway. Again, a competent attorney would know that this action will do more harm to the doctor than possible good for the plaintiff -- but then some lawyers still hope for a lottery-like win or settlement despite the absence of negligence. This violates the oath taken by the lawyer upon his or her admission to the bar, and the lawyer's Code of Professional Responsibility. But for the attorney, there's no downside risk.

Wouldn't it be nice if the American Bar Assn. stepped forward to denounce meritless medical liability suits, encouraged truly effective sanctions and lowered the barriers to countersuits?

Our quest for reasonable caps on noneconomic damages is crucial, but that addresses only one part of the equation that affects insurance rates.

The other part is the frequency of suits, and no law currently addresses that. Even a state with an effective liability law, such as my home state of Louisiana, is seeing the frequency of suits on the rise. It costs a lot of money to defend meritless suits.

Let's work to get all physicians and patients informed and involved in this fight, through the tools we have on our AMA Web site, such as the Physician Action Kit (link) and the Patients' Action Network (link).

And let's ask all the conscientious and fair lawyers in America, as well as legislators, to help us address this important issue. Let's encourage the bar associations to step forward and show leadership. After all, it's only fair play, and that's the American way.

Donald J. Palmisano, MD is a general and vascular surgeon in private practice in New Orleans. He was AMA president during 2003-04.

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