Medical malpractice litigation in the United States is the endless struggle to find meaning.
Lawyers, plaintiff and defense attorneys alike, reject the notion that they are involved in a frivolous medical malpractice lawsuit. To protect themselves from this notion, they use semantics. There are four words: legitimate, meritorious, frivolous, and malicious.
Legitimate is whimsical. It is in the eyes of the beholder. According to lawyers, all claims are legitimate.
Legitimate is conflated with meritorious. Just because a lawsuit does not prevail does not mean it is not meritorious. One must always consider the circumstances under which each allegation occurs before a lawsuit can be filed or defended. If, more likely than not, there is an injury, a breach of duty, and proximate cause, a case is legitimate.
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Meritorious, however, means “having reliable proof.” This is a higher bar than “more likely than not.” In many states, a medical malpractice claim must be accompanied with an affidavit or a certificate of “merit,” not one of “legitimate.” Merit is a measure for the reliability of evidence used in the proof of negligence. The affidavit is not proof of negligence. Only a trial determines proof. The affidavit of merit is a gatekeeper for a trial.
However, the affidavit or certificate of merit can also be submitted within 90 days after the lawsuit is filed or else the case is dismissed with prejudice. These are the rules.
Hence, when a lawsuit is filed, merit is known to the lawyer representing the case. This is also true of the defense attorney who is provided the certificate of merit.
The notion that lawyers never file frivolous lawsuits is fallacious. If an affidavit or certificate of merit is required when a case is filed, but a case can be filed without a certificate of merit as long as it is submitted within 90 days, this is a paradox. When lawyers file frivolous medical malpractice claims with this impunity, they protect themselves by following rules written by lawyers for lawyers. Hence, the 90-day waiver. Ninety days is a long time and the damage is done. Yet, technically, lawyers violate no rule.
That brings me to malicious. Pernicious intent is malicious. All claims having pernicious intent are frivolous. Thirty-five thousand out of 50,000 claims filed per year are frivolous and, therefore, are potentially malicious. This corresponds to 95 per day or 4 per hour.
It is all about malpractice insurance. Some lawyers, who are ambulance chasers, and their hired guns covertly and underhandedly garble the rules of legal processes and the standards of care. They do so because they know doctors have malpractice insurance and they intend to extort money from it. How they manipulate these rules is problematic. If you are a user of the health care system, you pay the price. Therefore, it is your problem.
The same is true of defense attorneys and their hired guns, except they are paid by the malpractice carrier. In the final analysis, both sides know if a lawsuit is frivolous and potentially malicious.
The Attorneys’ Rules of Professional Conduct calls for disciplining those who circumvent rules. Yet, the legal profession turns a blind eye. This is because the infamous “paragraph 9” in the preamble cautions lawyers to always consider circumstances, which affect the actions of their colleagues, before judging their colleague’s conduct. This is relativism or situational ethics. Nevertheless, relativism is not an excuse for a lawyer for not reporting a colleague who intentionally files a frivolous claim.
It is no different in the medical profession. Every doctor who prevails in a frivolous malpractice lawsuit knows that the plaintiff’s medical expert intentionally fabricates negligence. However, he or she does nothing.
In both cases, the threat of reprimand causes a doctor or a lawyer, who should report a colleague, to remain silent. This emboldens future frivolous malpractice lawsuits and is the result of relativism.
Relativism may excuse circumstance but there is no excuse for misconduct. This comes to an end as of now.
The infamous “paragraph 9” may forgive attorneys who file a frivolous lawsuit, but it has no counterpart in the AMA’s Code of Medical Ethics. In fact, there is a professional obligation to report misconduct and an obligation for peer reviewers to perform a preliminary investigation of any report of professional misconduct (9.4.1, 9.4.2, and 9.4.3).
In the law, professional misconduct occurs when zealous advocacy is perverted by those who file a known frivolous lawsuit. Once the motive for filing a frivolous lawsuit is exposed, it is not zealous advocacy, but self-interest.
In medicine, objectivity is perverted by fabricating a departure from standards of care. Once a distorted opinion is exposed, the motive is not objectivity, but self-interest.
Therefore, what happens next is up to the defendant doctor. Once a lawsuit is proven to be frivolous with 95 percent certainty, other decisions could be made about whether the suit is malicious. After all, all malicious lawsuits are frivolous. Remedies can be sought against ambulance chasers, hired guns, and even plaintiffs, all of whom are witting accomplices in the same racket to extort money from a malpractice carrier. Seeking a remedy does not change the rules; it uses them in a way lawyers never anticipate.
Howard Smith is an obstetrics-gynecology physician.
