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Not A Frivolous Matter

By Jock Hoffman, CRICO

Related to: Ambulatory, Emergency Medicine, Primary Care, Nursing, Obstetrics, Other Specialties, Surgery

During his 2011 State of the Union Address, President Obama was not breaking new ground when he coupled “medical malpractice” and “frivolous lawsuits.” Presidents from both sides of the aisle have invoked the menace of malpractice lawsuits for decades:

After 40 years of pairing the terms “frivolous lawsuit” and “medical malpractice,” the general public (and physicians…and presidents) may be inclined to think the two go hand in (rubber) glove. Unfortunately, that notion is counterproductive. The term frivolous is overly dismissive: conflating truly meritless cases with those that may lack a solid clinical basis (following discovery), involve temporary or emotional injuries, or name as a defendant a physician who believes he or she was not directly responsible for the care the patient is questioning.

Even when applying a much broader interpretation of the term than its legal definition, “frivolous” malpractice suits are less common than the politicians espousing them. Plaintiffs whose claims lack the fundamental legal components are challenged to find an attorney willing to devote time and out-of-pocket resources, unlikely to find a tolerant court, and even less likely to receive compensation. In states, such as Massachusetts, with a formal process to establish the merit of a malpractice allegation, plaintiffs who prevail without verifiable damages or a patient relationship with the named providers named are the rare exception rather than a common nuisance. From 2006–2010, less than six percent of lawsuits naming CRICO-insured defendants were dismissed as frivolous. The vast majority of cases that go forward are deemed (by a tribunal of clinical and legal experts) to have some merit.

Rather than dwell on the frivolous bogeyman, politicians, and health care providers will likely be more successful at reducing patient injuries, costs, and lawsuits by studying the underlying causes of the malpractice cases that reflect suboptimal care and present opportunities to repair flaws in the health care delivery system. Seriously.

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January 4, 2011
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