No “frivolous lawsuits” here

The term “frivolous lawsuit” has become so pervasive in our lexicon that a constitutional right – the right to a jury trial – is at risk of extinction. 

Even President Barack Obama, in his 2011 State of the Union address, bought into the myth with his throwaway comment suggesting that he would work with Republicans to “rein in frivolous lawsuits” against medical providers “to bring down costs.” The president appears willing to go along with Republicans’ cruel game to throw away Americans legal rights, which would shield the health industry – that’s insurers, doctors, hospitals, and pharmaceutical companies – from accountability.

Let’s be clear: Frivolous lawsuits are rare. A recent survey of the federal judiciary found that approximately 85 percent of federal trial court judges perceived “groundless litigation” as no more than a small problem.

This is true for medical malpractice lawsuits in particular. Harvard University researchers who examined malpractice claims looking for frivolous lawsuits concluded “that portraits of a malpractice system that is stricken with frivolous litigation are overblown.” They went on to say that the system “performs reasonably well,” in weeding out meritless claims.

In fact, most people injured by malpractice don’t sue. Law professors David Hyman and Charles Silver estimate that there are nearly 12 times as many injuries caused by medical negligence as malpractice claims.

Similarly, the Institute of Medicine estimated in 1999 that 98,000 Americans die from medical errors, but fewer than 15,000 victims of medical malpractice received any compensation for their injuries that year. This means that between three and seven people died in 1999 from malpractice for every person who was compensated for malpractice.

Of the few payments to injured patients, the vast majority go to those who are killed or suffer significant, permanent injuries, such as quadriplegia or brain damage, that require extensive long-term medical treatment. (If the doctors and hospitals responsible for these injuries don’t pay these costs, then the rest of us pay for them.)

Why are frivolous medical malpractice lawsuits uncommon? Just ask well-known tort reform advocate Victor Schwartz, who admitted in a 2004 Los Angeles Times article, “There is no question that it is rare that frivolous suits are brought against doctors. They are too expensive to bring.”

Indeed, it is difficult even to bring a strong malpractice lawsuit. The costs of exchanging evidence, hiring expert witnesses and overcoming well-known jury bias in favor of doctors are only some of the obstacles. Further, these cases are taken primarily on a contingency fee basis, requiring lawyers to subsidize each case up front. As a result, many lawyers can afford to take only those cases that involve the most egregious conduct by health professionals and a patient who needs extensive future care (and therefore extensive compensation).

This leaves most malpractice victims without recourse. In a survey of plaintiffs’ attorneys, Herbert Kritzer of the University of Wisconsin found that malpractice lawyers rejected 80 percent or more of the requests they received to represent injured patients. To compound these problems, nearly all states have laws that limit monetary damages that victims can receive or create other hurdles for bringing even meritorious cases.

A federal law reducing medical liability would intensify the burdens on patients and their families, impose additional obstacles and ultimately leave them to find other ways to pay for medical costs caused by the health industry’s negligent or reckless acts. In most cases, the costs would fall on the rest of us through higher taxes and higher health insurance premiums. Meanwhile, the health industry would be free from taking responsibility.

Malpractice victims are already hurting, not just from the negligent acts that caused their or their family members’ debilitating injuries or deaths, but also from a political climate that aims to remove their right to hold wrongdoers accountable. And there are millions of medical malpractice victims every year.

President Obama said that he wants to cut the federal budget deficit without “doing it on the backs of our most vulnerable citizens.” If he is serious, then he needs to reassess his view on medical malpractice liability.

Christine Hines is the consumer and civil justice counsel for Public Citizen's Congress Watch.