From the American Medical Association
Physicians challenge lawyers' meritless liability suits -- and win
More doctors are discovering they have some recourse through countersuits or other legal tactics to hold lawyers accountable.
By Amy Lynn Sorrel, AMNews staff. Dec. 10, 2007.
Physicians say a series of favorable court rulings is turning the tide in their crusade against frivolous medical liability lawsuits.
Three Ohio courts in six months sanctioned plaintiff lawyers for pursuing unsupported claims against three doctors. Judges awarded the physicians their legal expenses. In New Orleans, the 5th U.S. Circuit Court of Appeals upheld a similar award to a Mississippi doctor Nov. 13.
The courts chastised the attorneys for wanton behavior including: suing the wrong doctor; refiling a claim against a physician even though the plaintiff's expert withdrew his testimony the first time around; and having no expert testimony against one doctor yet failing to drop the case.
Beyond the money, doctors hope the hard-won victories in cases that often are difficult to prove send a message that deters lawyers from filing baseless claims in the first place.
"We are not trying to prevent legitimate claims. But these are egregious cases where there is absolutely no merit, whether through laziness or negligence or refusal [by trial lawyers] to do due diligence," said Almeta Cooper, Ohio State Medical Assn. general counsel. The society took on the three Ohio cases through its Frivolous Lawsuit Committee, a program that educates physicians about the practice and helps them defend against it.
Cooper said the rulings "encourage trial judges who see abusive conduct to take action ... and it helps physicians understand the system is not completely stacked against them."
On top of tort reform, proactively challenging meritless cases is another way to reduce the frequency of bad claims and curb rising liability insurance costs, said neurosurgeon Jeffrey Segal, MD, founder and CEO of Medical Justice. The national company sells insurance policies that give doctors legal resources to combat frivolous claims. For example, when a client physician receives notice that a patient is considering filing a lawsuit the doctor believes is frivolous, the company sends a letter to the lawyer that the physician may countersue. As a result, Segal said, only 11% of these instances then materialize into a lawsuit.
Plaintiff attorneys are allowed to advocate for patients, Dr. Segal said. But "where physicians go crazy is with frivolous testimony delivered by an expert witness, and the first order of business is to look at the testimony. We try to put the two together and hold the attorney accountable for his expert witness."
Trial lawyers agree that punishment may be justified if an attorney completely eschews his or her responsibilities and maliciously pursues a case. But such conduct is rare, said Jeff Boyd, executive director of the Ohio Assn. for Justice, the state trial lawyers organization.
"There really is no moral or economic incentive for plaintiff lawyers to file frivolous cases" and take on the often expensive and complicated negligence suits in bad faith, he said.
Penalizing lawyers who have shown no ill will could have a chilling effect on medical liability cases, said Paul Perantinides, a plaintiff attorney in one of the Ohio cases.
"It has a huge impact designed to put the onus on lawyers, so when they look at these cases, instead of asking, am I doing the right thing for the patient, the lawyer is going to say, if I keep [this doctor] in, there's a chance he may come against me."
Perantinides added that plaintiff attorneys must rely on expert testimony when filing their cases and said lawyers should not be held responsible when a claim ends up lacking in merit due to an expert's actions.