Are shotgun lawsuits frivolous?
To many physicians, being dragged into a lawsuit over a complaint or medical outcome in which they were not involved is frivolous, said Stanislaw Stawicki, MD, a trauma surgeon and researcher based in Bethlehem, Pa. Dr. Stawicki was named in a lawsuit along with a long list of medical staff who interacted in some way with the plaintiff. Dr. Stawicki himself saw the patient once and made a note in the chart but had nothing to do with the patient’s surgery or with any critical decisions regarding his care, he said.
“Nothing really prepares you for seeing your name on a legal complaint,” Dr. Stawicki said. “It’s traumatic. I had to block out entire days to give depositions, which were really kind of pointless. Questions like, ‘Is this really your name? Where did you train? Were you there that morning?’ Stuff that was really not consequential to the fact that someone had surgery a month earlier and had some sort of complication.”
Dr. Stawicki was eventually dropped from the claim, but not before a nearly year-long ordeal of legal proceedings, meetings, and paperwork.
It is common practice for plaintiffs’ attorneys to add codefendants in the early stages of a claim, said David M. Studdert, ScD, a leading health law researcher and a professor of law at Stanford (Calif.) Law School. Defendants are gradually dismissed as the case moves forward and details of the incident become clearer, he said.
“Plaintiffs’ attorneys have strong incentives to try and choose claims that will be successful,” Dr. Studdert said. “However, in the early point in the process, neither the patient nor the attorney may have a good idea what has actually happened with care. So sometimes, filing a lawsuit may be the only way to begin the process of opening up that information.”
A study by Dr. Studdert in which medical malpractice claims, errors, and compensation payments were analyzed found that, out of 1,452 claims, about one-third (37%) did not involve errors.
“Many physicians might call those frivolous lawsuits, but in fact, most of those don’t go on to receive compensation,” he said. “We suspect that in many instances, those claims are simply dropped once it becomes apparent that there wasn’t error involved.
“They can still be burdensome, anxiety provoking, and time consuming for physicians who are named in those suits, so I don’t want to suggest that claims that don’t involve errors are not a problem,” said Dr. Studdert. “However, I think it’s wrong to assume, as many people do when they use the term ‘frivolous lawsuit,’ that this is really an extortionary effort by a plaintiffs’ attorney to try to get money out of a hospital or a physician for care that was really unproblematic.”
Certain ‘frivolous’ cases more common than others
Nonmeritorious claims still occur relatively frequently today, according to data from the Medical Professional Liability Association’s Data Sharing Project. Of about 18,000 liability claims reported from 2016 to 2018, 65% were dropped, withdrawn, or dismissed. Of the 6% of claims that went before a jury, more than 85% resulted in a verdict for the defendant, the researchers found.
“Basically, any claim that does not result in a payment because the underlying claim of negligence on the part of a health professional had been demonstrated, proven, or adjudicated false is one we would describe as nonmeritorious,” Mr. Stinson said.
The MPL Association does not track cases that meet the legal definition of frivolous, said Mr. Stinson, and they “don’t see truly frivolous lawsuits very often.”
Malpractice claims are risky, expensive, and aggressively defended, says Mr. McConnell, the plaintiffs’ attorney. Mr. McConnell, who has been practicing for 30 years, said his own claim selection process is very rigorous and that he cannot afford to pursue claims that aren’t well supported by science and medicine.
“Pursuing frivolous cases would bankrupt me and ruin my reputation,” he said. “A lawyer I know once said he would write a check for $10,000 to anyone who could show him a lawyer who makes a living pursuing frivolous medical malpractice cases. It’s a fair challenge. The economics and the practices of liability carriers and defense lawyers make frivolous cases a dead end for plaintiff lawyers.”
Most medical malpractice cases are taken on a contingency fee basis, Mr. McConnell noted, meaning that the plaintiff’s lawyer is not paid unless the claim is successful.
“This means that the plaintiff’s lawyer is risking 2 years of intensive labor on a case which may yield no fee at all,” he said. “Obviously, any reasonable lawyer is going to want to minimize that risk. The only way to minimize that risk is for the case to be solid, not weak, and certainly not frivolous.”
But Dr. Segal, the health law attorney, says that plenty of frivolous liability claims are levied each year, with attorneys willing to pursue them.
It’s true that seasoned plaintiffs’ attorneys generally screen for merit and damages, Dr. Segal said, but in some instances, attorneys who are not trained in malpractice law accept frivolous claims and take them forward. In some cases, they are slip-and-fall accident attorneys accustomed to receiving modest amounts from insurance companies quickly, said Dr. Segal, founder of Medical Justice, a company that helps deter frivolous lawsuits against physicians.
“If we lived in a perfectly rational universe where plaintiffs’ attorneys screened cases well and only took the meritorious cases forward, we would see less frivolous cases filed, but that’s not the universe I live in,” Dr. Segal said. “There are well over a million attorneys in this country, and some are hungrier than others. The attorneys may frequently get burned in the end, and maybe that attorney won’t move another malpractice case forward, but there’s always someone else willing to take their place.”
Medical Justice has twice run a Most Frivolous Lawsuit Contest on its website, one in 2008 and one in late 2018. The first contest drew 30 entries, and the second garnered nearly 40 submissions, primarily from physicians who were defendants in the cases, according to Dr. Segal. (Dr. G’s lawsuit was highlighted in the most recent contest.)
In one case, an emergency physician was drawn into litigation by the family of a deceased patient. The patient experienced sudden cardiac arrythmia at home, and paramedics were unable to intubate her or establish IV access. She was transferred to the hospital, where resuscitation efforts continued, but she remained in asystole and was pronounced dead after 15 minutes.
At the hospital, blood tests were conducted. They showed that her serum potassium concentration was elevated to about 12 mEq/L, Dr. Segal said. The family initiated a claim in which they accused the emergency physician of failure to diagnose hyperkalemia. They alleged that had the hyperkalemia been discovered sooner, the patient’s death could have been prevented.
“If you had no other facts about this, you would wonder how a person with potassium that high would even be alive,” Dr. Segal said. “But what they were looking at was the body decomposing and all the potassium in the cells being released into the bloodstream. It wasn’t the cause of the problem, it was an effect of the problem. She really was dead on arrival, and she was probably dead at home.”
The case was eventually dropped.
Although the outcome for the patient was tragic, says Dr. Segal, the case is one of many types of frivolous claims that exist today.
“Yes, frivolous cases are out there,” he said.