Fighting back against frivolous lawsuits

Physicians are contesting attorneys who file meritless lawsuits. When doctors win, it is good for those who deliver care and those who receive -- and pay for -- it.

Posted June 18, 2007.

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When patients step into an examination room or are wheeled into the operating room, they expect their physicians to follow medical standards of care.

That reasoning also should apply to the legal profession, which too often is a third party in medical care. Shouldn't lawyers be held to equivalent standards of professionalism?

Physicians are expected to evaluate their patients thoroughly and act in their best interest. Lawyers are expected, within reasonable limits, to investigate claims that their clients bring to them and file only lawsuits that have merit.

But doctors know that doesn't always happen.

We're not talking about medical liability cases where there's a legitimate medical difference of opinion. We're talking, for example, about the shotgun-approach liability lawsuits in which lawyers name every physician who crossed a patient's path -- even if that physician obviously had nothing to do with an alleged medical error, and perhaps is even the one responsible for the patient getting better.

Ohio is a great example of a place where physicians are taking lawyers to task when they feel they have been sued frivolously.

Last month an Ohio appellate court sanctioned Cleveland-area lawyer John E. Duda, upholding a lower court decision that he pay orthopedic surgeon Michael A. Banks, MD, $4,500 for the costs of defending a unwarranted lawsuit. Another $4,000 went to the hospital where the alleged incident occurred, Southwest General Health Center.

Dr. Banks sued the lawyer for frivolous conduct with the help of a nearly four-year-old Ohio State Medical Assn. program to fight frivolous lawsuits.

Despite being unable to find an expert witness to testify that Dr. Banks acted improperly, the lawyer continued to pursue a lawsuit that accused the physician of refusing to treat a patient who fractured her ankle and of telling her that she was a drug addict. The court threw out the lawyer's lawsuit twice.

On top of that, court records show, the patient consistently told the lawyer that Dr. Banks never mistreated her, that it was another physician. She also told the lawyer she didn't want to pursue the claim.

The American Medical Association, which has policy to develop a plan to deter frivolous medical liability lawsuits, joined with the state medical society to file a joint friend-of-the-court brief in the case.

The victory marks the fourth win for the state medical association's frivolous lawsuit program.

It's heartening to see the court chip away at lawyers' over-the-top tactics. Besides devastating the physician who is wrongly accused in courts, frivolous lawsuits cost the entire medical system.

Doctors, afraid of being sued, practice defensive medicine. That means they order tests and treatments so that if they are dragged into a meritless lawsuit, they can point to the extra workups and say they did everything possible. The Health and Human Services Dept. estimates that costs the nation between $70 billion and $126 billion annually.

Frivolous lawsuits also influence who applies to medical school and what specialty they choose. For example, 62% of medical residents polled in 2003 said liability issues were their top concern, up from 15% who said that in 2001. The Merritt, Hawkins & Associates study also found that students said that concern may push them away from high-risk specialties.

On top of that, there is the pure economic cost of the lawsuit.

Defending a medical liability lawsuit in which the defendant prevails at trial costs more than $110,000, according to a 2005 Physician Insurers Assn. of America claims trend analysis. Even in cases where the claim was dropped or dismissed, the defense costs average more than $15,000, that analysis showed. Those costs add up, considering that 75% of medical liability claims don't result in patients receiving any money.

Duda has said he plans to appeal the recent Ohio ruling to the state Supreme Court. Let's hope that the court will refuse to hear the case and let the lower court decision stand. It will be sending a message to lawyers that they, too, must follow a standard of care -- care in choosing which cases to pursue.

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