Comments on: “The End Result of a Lawsuit”

By: David Nieporent

David Nieporent — Wed, 18 Oct 2006 01:34:12 +0000

Markm, you define frivolous as “there’s absolutely no way they could win even if you believed everything they alleged.” Unfortunately, the anti-tort reformers try to make it sound as if “frivolous” is that simple, but it isn’t. You’ve described the standard for a motion to dismiss.

But most suits resolved via MTD are not deemed frivolous. Frivolous is a much higher (or lower, depending on how you look at it) standard; one nearly has to accuse someone of cooperating with the CIA to beam alien transmissions into one’s head before a judge will classify a suit as frivolous.

By: wavemaker

wavemaker — Tue, 17 Oct 2006 20:34:15 +0000

Well, the source post is fine, and let’s assume that the conclusions are 100% accurate. It tells me that the doctor is an idealist who should have been better prepared during his medical education and professional internship for the ugly realities of the healing business.

Aside, that is, from the fact that the plaintiffs’ bar is out of control.

By: tyree

tyree — Tue, 17 Oct 2006 16:00:04 +0000

Peter…
I know first hand what a lawsuit did to my father, a fine doctor who dedicated his life to his patients. My father did not quit but his practice was never the same. The hurt was so deep he stopped taking in new patients, because he trusted the old ones and they trusted him. Over the decades, his practice died off. When he finally stopped practicing he was making $20,000. a year. Now medicine is a business and the patients are just customers, but those of us who remember what we had will never forget what the lawsuit industry did to our loved ones.

By: markm

markm — Mon, 16 Oct 2006 12:38:54 +0000

“The system works both ways right? Can any legal minds here tell me the odds for a successful countersuit to recover money, time, stress, etc?”

Essentially zero. In most states, the only way a losing plaintiff owes the defendant anything is if the suit is “frivolous” – which doesn’t mean what it sounds like, but rather that there’s absolutely no way they could win even if you believed everything they alleged.

That’s the problem. If the loser had to pay the winner’s legal fees, insurance companies would rather pay $100K fighting a poorly-based suit (and be reimbursed in the end) than settle for $50K, and lawyers wouldn’t be filing suit when they were unlikely to win.

By: Anirban

Anirban — Sun, 15 Oct 2006 11:27:30 +0000

As someone asked about the state of physician counter-suits , I would like to highlight something , but Ted as an authority can do better

The legal literature as I could gather is replete with “nuisance suits” , frequently filed by attorneys who are confident that the suit will never go to court because the defense costs of such suits may well exceed what would be acceptable in settlement. [Sokol 1985] Indeed, in many cases, insurance companies settle such suits out of court even though that is not the wish of the physician, who is the client. In such situations, the physician has little or no recourse and must accept the implication that some may infer–that he or she performed in a manner that was below standard, even though there may be no evidence of that. Nevertheless, the insurance company can make such a decision based on finances, rather than on whether the physician was innocent or guilty. Any such settlements should contain statements that the physician admits no guilt and is held harmless from further action in this matter.

In some situations, physicians have countersued the plaintiff’s attorney, the claimant, or both and have been successful. This process is very difficult and potentially very costly, however. Not only does a physician have to have been tried already and to have received a defense verdict in court, but he or she may then have to prove that “malicious prosecution” has occurred.

For an action against alleged malicious prosecution to succeed, the plaintiff, in this case, the physician, must prove that
a. The suit was instituted without probable cause
b. the suit was decided in favor of the physician because the suit was instituted maliciously
c. the physician sustained special damages

Even the last point can be difficult to prove. In one case, the court held that the following can not constitute special damages

1. litigation expenses
2. increase in insurance premiums
3. injury to professional reputation

The rule in Georgia is even more extreme, where the court concluded that a “cause of action … will not lie absent a showing that the defendant was arrested or his property attached.”

Thus, in some states, a patient who alleges out-of-pocket expenses or inability to function in his or her chosen field of employment as a result of injury from the alleged action of a physician can be reimbursed for economic damages based on past and future expenses and earning potential for a lifetime and can obtain hundreds of thousands, if not millions, of dollars. When a physician who is harmed brings forth an action, however, the same elements of determining economic damages do not apply.

As people at the receiving end of the equation our question is , should such a double standard be permitted to stand unchallenged.

By: OS

OS — Sun, 15 Oct 2006 03:01:53 +0000

Can we name the patient and the lawyer, so we know who has deprived us of another doctor? Or do we fear another lawsuit?

By: J.T. Wenting

J.T. Wenting — Sun, 15 Oct 2006 00:59:16 +0000

I’d likely do the same if I were treated thus by the people I had decided to dedicate my life to.
If there’s apparently no trust left, and your patients (or customers, or however you call them) are only interested in extorting money from you, I’d not want to serve them any longer either.
Don’t know what I’d do instead, but rest assured it would be a job far away from public scrutiny, a job where if I’d never deal with another customer again it would be too soon.

By: William Nuesslein

William Nuesslein — Sat, 14 Oct 2006 22:44:47 +0000

For Peter W.

A hypothetical risk became all too real when a patient betrayed the trust between him and his doctor.

There was a popular saying back when crime rates were very high: A conservative is a liberal who has just been mugged.

By: Dr. Mary Johnson

Dr. Mary Johnson — Sat, 14 Oct 2006 18:34:47 +0000

Does’t sound silly at all to me.

Sounds real.

By: C. Innes

C. Innes — Sat, 14 Oct 2006 18:19:56 +0000

This doctor should have looked it at this way – the plaintiffs invested two years of their life, hoping for a big payoff – and got nothing for all their efforts.