Dr. G, a New York surgeon, was only a couple years into practice when he faced his first lawsuit.
After undergoing liposuction surgery on the area of her calf and ankle, a patient claimed she had developed a severe allergic reaction, characterized by small areas of necrosis on the lower extremities, said Dr. G, who asked to remain anonymous. However, the alleged injury seemed suspicious, said Dr. G, considering that 3 weeks after the surgery, the area had shown a successful result with minimal swelling.
Six months into the suit, Dr. G received a shocking phone call. It was the patient’s estranged husband, who revealed that his wife was having an affair with another man, a physician. In recorded phone calls, the patient and her paramour had discussed causing an injury near the patient’s calf in an attempt to sue and get rich, the husband relayed. Dr. G immediately contacted his insurance carrier with the news, but his attorney said the information would not be admissible in court. Instead, the insurer settled with the patient, who received about $125,000.
At the time, Dr. G did not have a consent-to-settle clause in his contract, so the insurer was able to settle without his approval.
In legal practice, a frivolous claim is defined as one that lacks a supporting legal argument or any factual basis. A claim issued with the intent of disturbing, annoying, or harassing the opposing party can also be described as legally frivolous, said Michael Stinson, vice president of government relations and public policy for the Medical Professional Liability Association (MPL Association), a trade association for medical liability insurers.
However, when most physicians refer to “frivolous claims,” they often mean a claim in which there is no attributable negligence. Such suits represent a second category of claims – nonmeritorious lawsuits.
“I think people intermix nonmeritorious and frivolous all the time,” Mr. Stinson said. “In the vast majority of nonmeritorious claims, the patient has suffered an adverse outcome, it’s just that it wasn’t the result of negligence, whereas with a frivolous lawsuit, they really haven’t suffered any damage, so they’ve got no business filing a lawsuit on any level.”
A third type of so-called frivolous suit is that of a fraudulent or fake claim, in which, as Dr. G experienced, a patient causes a self-injury or lies about a condition to craft a false claim against a physician.
If a patient files a claim that the patient knows is false, the patient commits fraud and may be subject to counterclaims for malicious prosecution or abuse of process, said Jeffrey Segal, MD, JD, a neurosurgeon and health law attorney. Further, the patient would be testifying under oath, and such testimony can be considered perjury, a criminal offense with criminal penalties.
Sadly, Dr. G was the target of another frivolous lawsuit years later. In that suit, a patient claimed the surgeon had left a piece of sponge in her breast cavity during surgery. The case was dismissed when medical records proved the patient knew that the foreign body resulted from an unrelated procedure she had undergone years earlier.
“There is so much abuse in the court system,” Dr. G said. “You really don’t think stuff like that will happen to you, especially if you honor the profession. It’s unfortunate. It’s left a very bitter taste in my mouth.”
Frivolous claims have long been a subject of debate. Tort reform advocates often contend that such claims are pervasive. They cite them as key reasons for high health care costs and say that they have led to the rise of defensive medicine. Plaintiffs’ attorneys counter that the rate of frivolous claims is widely exaggerated and argue that the pursuit of frivolous claims would be “bad business” for legal firms.
“I have never seen a frivolous malpractice claim,” says Malcolm P. McConnell III, JD, a Richmond, Va., medical malpractice attorney and chair of the Medical Malpractice Legislative Subcommittee for the Virginia Trial Lawyers Association. “I cannot say that such things never happen, but any lawyer bringing such a thing is foolish, because there is no reward for it.”