Q&A: Do we need to protect doctors from frivolous lawsuits?

There are already difficult barriers for someone injured by a physician’s negligence to succeed in a medical malpractice claim. These lawsuits are perhaps the most involved single-plaintiff tort cases out there. A plaintiff’s lawyer has to track down and acquire forests of medical records, find and hire testifying medical experts, find other experts as necessary (life care planning, rehabilitation). These cases are very aggressively defended by skilled counsel who can call upon expertise from industry groups across the country.

Discovery is made into an ordeal: certain records are often privileged by state laws, and there’s been a strong effort by the industry to subvert the purpose of the Patient Safety & Quality Improvement Act of 2005 (one of these reform efforts passed with good intentions) into a way to hide legally mandated incident reports from discovery.

It’s expensive and complicated to pursue a medical malpractice case.

In a number of states, lobbying efforts by the medical industry have resulted in even more barriers to justice: extra hoop-jumping to even be allowed to file a case, such as approval by a physician panel, and caps on damages. In Kentucky, someone injured by a physician now has to file a “Certificate of Merit” with their case, showing that they have consulted an expert who agrees the case has a reasonable basis. See KRS 411.167 at https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49312. This is even though the whole point of having a civil justice system is to evaluate claims and decide if they’re meritorious.

It’s quite unlikely for meritless claims might make it to trial, but they’d lose there. Many meritorious med-mal claims have foundered on the rocks of juries disinclined to punish a local son. Remember too that parties and attorneys who file improper or unwarranted claims are already liable for sanctions under existing rules.

The system isn’t perfect, but in the United States it works as well as any human institution can be expected to work.

The notion that American courts are clogged with frivolous med-mal suits is, to be frank, spread by those who 1) seek to increase cynicism about our institutions, or 2) would like to limit people’s access to the courts.

This is a blog post, not specific legal advice. No attorney-client relationship is intended or created.