Yes, Virginia, Attorneys Do File Pointless Lawsuits [Updated]

Elizabeth Edwards, spouse of Democratic Vice Presidential candidate Senator John Edwards and herself formerly a practicing attorney, spent Wednesday of this week campaigning in the State of Virginia. Naturally, given her husband's background as a prominent member of the plaintiffs' bar, she had plenty to say in the continuing debate over how best to reduce medical malpractice insurance premiums, some of it less helpful to her cause than might at first appear.

The Richmond Times-Dispatch writes:

Elizabeth Edwards, the wife of Sen. John Edwards of North Carolina, agreed yesterday that rising medical malpractice rates are driving some obstetricians and gynecologists out of business.

However, she said the crisis could be solved if the legal and medical communities weeded out those responsible for frivolous lawsuits and malpractice.

* * *

Mrs. Edwards said the legal profession should weed out lawyers who file frivolous lawsuits; the medical profession should weed out the few bad doctors, who account for most of the medical mishaps; and the insurance industry should be made to compete.

A former lawyer herself, she said a cap on malpractice awards, which the Bush administration is proposing, is not needed. States without a cap have lower premiums than states with a cap, she said. President Bush wants a $250,000 cap for pain and suffering damages.

Out of Fredericksburg, the Free Lance-Star adds:

'There are a lot of frivolous cases' brought to court, [Mrs. Edwards] said, and having a panel of attorneys weed out those lawyers who bring frivolous cases could reduce the number.

Such a group could 'make sure we root out these cases by rooting out the lawyers who file them,' Edwards said. 'The current administration has no real plan to rid the system of frivolous lawsuits.'

Edwards also said that 50 percent of malpractice claims are against just 5 percent to 7 percent of doctors. If doctors could be more vigilant in policing their own, that would help.

Just what proportion of the medical malpractice suits that are pursued to trial are unmeritorious? The decidedly non-neutral site Medical Malpractice Today¹ reports that in the year 2000 "health care providers won approximately 62% of the cases that were tried by a jury" and that on average over a six year period "patients only won 34% of the time and health care providers won 66% of the jury trials."

Roughly 2/3 of all malpractice lawsuits are unsuccessful, which I will grossly over-simplify by taking it as a sign that 2/3 of those suits are lacking in factual merit. It follows that even the authentically "bad" doctors, who are conceded to be a very small proportion of the medical population, are frequently on the receiving end of unmeritorious claims, and that genuinely "good" doctors are targeted more often than not for no good reason. When we consider that (1) an unsuccessful/unmeritorious malpractice lawsuit still has to be defended by the insurer, and (2) that the costs of defending an unmeritorious suit are roughly comparable to the costs of defending a meritorious one (and frequently higher, given that the meritorious claim is more likely to settle at an early stage in the litigation), and (3) that defense costs are a driving factor in the calculation of premium, it would seem that Mrs. Edwards' comments serve to prove the insurers' point: skyrocketing premiums for doctors really are being driven by some members of the plaintiffs' bar (perhaps as small a proportion as those "bad" doctors just mentioned) who can't or won't stop themselves from filing many too many pointless lawsuits.

The Kerry-Edwards "three frivols and you're out" solution (see earlier "Campaign 2004" posts for a description) is hardly compelling in light of the campaign's own stated figures. By definition that proposal actually permits, even encourages, the continued filing of suits that lack merit and would likely leave a significant portion of needless claims -- the ones that are "meritless but not quite frivolous" -- unaffected, with no reduction in claims costs. Better, it would seem, to reduce the frequency of claims by raising obstacles to their being filed in the first place, and to reduce or contain the severity of claims by capping, as California has done for many years and as the Republican campaign proposes to do nationally, the amounts that can be awarded, above the injured plaintiff's objectively measurable damages, for intangible, "non-economic" losses.

UPDATE: In comments to this post, The Uncivil Litigator and Ted Frank of Overlawyered quite properly take me to task for my sloppiness in the use of the statistics tossed about by Elizabeth Edwards. Their mathematics are far more reliable than mine on this point.

Even better, they bring up what really should have been one of my points originally: that the statistics that get bandied about in arguments against tort reform generaglly and med-mal reform in particular tend to focus on an incomplete sample of the costs involved. The Edwards and Cochran numbers look at jury verdicts, but leave out all of the cases that are settled -- and in my anecdotal experience, more cases are settled for purely economic reasons, to "make them go away" at a lower cost than will be involved in litigating all the way to trial, than are settled on their objective merits -- and ignore (which I did have the presence of mind to mention) the costs of defense.

With even the opponents of reform admitting with Mrs. Edwards that some very large portion of these cases are filed for no good reason, the Kerry-Edwards proposals seem to amount to little more than a cry of "Stop me before I sue again!" If the less discerning members of the plaintiffs' bar won't break themselves of the habit of filing an excessive number of suits in the hope of getting lucky or of finding the one "big one" out of the bunch, then sterner measures are needed to break that habit for them.

¹ And just who is behind "Medical Malpractice Today"? Well, every one of the 50 links on its home page offering to "help you find a law firm in your area" leads to the seemingly ubiquitous law firm of Johnny Cochran.

Comments

[UCL]

You state or quote:

"health care providers won approximately 62% of the cases that were tried by a jury"

and "on average over a six year period "patients only won 34% of the time and health care providers won 66% of the jury trials."

and conclude, "Roughly 2/3 of all malpractice lawsuits are unsuccessful".

The latter statement is incorrect. Only 2/3 of malpractice lawsuits that go to a jury trial are unsuccessful. 95% or more of all medmal lawsuits do not go to a jury trial and are settled out of court, and most likely all of them are settled for money damages of some amount. It is more accurate to say that well over 95% of all medmal lawsuits result in settlements or plaintiff verdicts.

[Ted]

That 66% of medical malpractice trials are lost by plaintiffs does not mean that 66% of medical malpractice suits are meritless, since there's no reason to think that the larger universe of settled cases has the same distribution as the tried cases.

UCL overstates the case in the other direction: one can't make any judgment on the settled cases without more data. Plus some value judgments: is a nuisance settlement below the cost of defense a victory for the plaintiff or defendant? What about settlements where the plaintiff walks away with nothing except a release of malicious prosecution claims?

The better place to challenge Ms. Edwards is on the "50% of malpractice is committed by 5% of doctors" claim that I have yet to see support for -- especially in the ob/gyn field, where the vast majority of doctors have been sued.

[david giacalone]

I just want to remind everyone that while all frivolous suits are meritless, not all meritless suits are frivolous, as the 2nd Cir. App. Court recently reminded us in the MetLife reorganization case. (NYLawyer, Aug, 12, 2004).

The customary frivolousness standard is "without basis in law or fact," and allows good faith argument for an extension, modification or reversal of existing law. See Model Rule 3.1, and the definition at law.com.

A case or a defense that is a close call on the law or the facts is not frivolous (even if it loses on the merits and is therefore "without merit"). Bringing such a case or raising such a defense should not be the basis for disbarring a lawyer.

[Rufus]

I see that David has already said what I was going to say. A defense verdict does not make a suit frivilous. In ten years doing defense work I saw very few cases that I considered frivilous. The few frivilous cases that I did see, largely legal malpractice, were usually won on motion with no discovery or with minimal discovery. I did see more, and still see now that I'm in-house, coverage/bad faith cases that I considered frivilous. But then I'm pretty doctrinaire when it comes to coverage, so I'm not one to judge, particularly given the fact that in many of the coverage cases I considered frivilous the insured ended up prevailing.