Coronavirus

Frivolous Litigators Bite the Hands That Care for Them

Bogus lawsuits threaten medical professionals who are fighting on the front lines against COVID-19.

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In good economic times, the burdens of big government and excessive regulation are easy for many to ignore. When the system comes under heavy strain, however, those costs quickly become intolerable.

That's why, even as freedoms are being restricted to unprecedented degrees in hopes of slowing the spread of COVID-19, politicians are also lifting regulations that hinder economic activity. These rules and mandates have always been counterproductive, but only now are their costs glaring enough to compel action.

Perhaps the same will prove true once politicians spot the coming lawsuit tsunami. As Manhattan civil lawyer Elizabeth Eilender remarked to the New York Post, "You could teach several law school courses based just on all the different kinds of cases that will come out of this. There are going to be a million lawsuits."

Even though many, if not most, of these suits are likely to be frivolous, their sheer volume will significantly raise the costs of future economic recovery.

But there are also ill effects today. The threat of the lawsuits might obstruct the response of medical professionals who are fighting on the front lines against COVID-19. Indeed, we can predict that many of these lawsuits will target health care workers who are forced by medical circumstances to quickly make tough decisions, including how to ration care or which makeshift machinery could be used to treat as many patients as possible. The Coronavirus Aid, Relief and Economic Security Act has a section protecting volunteer health care workers from liability. Several states—including New York, New Jersey, and Michigan—have also recently issued executive orders or passed legislation to protect doctors, nurses, and other hospital staff from frivolous lawsuits.

But every type of business will be vulnerable, too. If we're in for anything akin to the aftermath of the 9/11 terrorist attacks, unscrupulous trial lawyers will test legal boundaries and attempt to apply standards of care that were designed for normal times to businesses and professionals now facing unprecedented emergency circumstances. Of course, nobody can reasonably expect every business to have all of the necessary medical supplies on hand and worker training already in place to immediately respond to such a rare and unanticipated pandemic.

Health care professionals and businesses are both worried. For instance, COVID-19 has hit seniors disproportionately, and nursing homes have become a significant target of these attorneys. Recently, the Florida Health Care Association urged Gov. Ron DeSantis to provide legal immunity to protect facilities and their workers from lawsuits that attempt to hold them liable for the harm spread suddenly by this virus.

Beyond the immediate impact, these medical malpractice lawsuits would also have long-term consequences, since studies show that they raise the cost of health care. According to estimates examined by my Mercatus Center colleagues Jared Rhoads and Robert Graboyes, because of fears of being sued, physicians resort to a form of defensive medicine that consists of doing more than is strictly necessary to treat a patient, at an aggregate cost ranging between $650 to $850 billion per year.

Extraordinary circumstances make these problems even more obvious. In 2002, Congress passed the Support Anti-Terrorism by Fostering Effective Technologies Act to protect airlines, airplane manufacturers, and other industries hit hard by 9/11 from needless suits. Part of the concern was that investment in anti-terrorism technology and procedures would be stunted by the uncertainty created by a lack of case law establishing reasonable standards of care.

Pandemics are similarly infrequent, and as this one unfolds, the last thing we should want is medical professionals worrying about unwarranted lawsuits instead of delivering the best care possible under seemingly impossible circumstances.

Sen. Deb Fischer (R–Neb.) has already released a bill—the Health Care Workforce Protection Act—to provide liability protection to manufacturers of masks and respirators, as well as to other professionals fighting COVID-19.

With the pandemic bringing the U.S. economy to its weakest state in decades, it's crucial that protections are quickly put in place to prevent a climate of excessive legal uncertainty and fear that threatens to slow recovery and prolong suffering.

But policymakers shouldn't stop there. The tort system, we must always remember, provides a crucial economic service by adjudicating legitimate conflicts between private parties. That said, it can be abused and end up stunting, rather than facilitating, commerce. Permanent, constitutional-minded tort reform will prevent a scramble to enact protections following the next unexpected event.

COPYRIGHT 2020 CREATORS.COM

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  1. It’s cute that you still think we’ll be going back to anything resembling normal life.

    1. Humanity has a short attention span. Things will be normal more quickly than you realize, minus politicians being bolder in exploiting freedoms.

      1. Not a chance in hell. You’re in denial about the damage being done to the economy.

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    2. Just like after 9/11, when no one was ever going to get on an airplane again, or travel internationally.

      1. If you think 9/11 didn’t cause permanent change and damage, you never got on an airplane before that.

      2. 9/11 did not shut down the economy even in NYC. People still had jobs, went out to dinner, went to sporting events and concerts. The vast majority were not personally affected in any way. And most people don’t fly on a regular basis. There really is no way back for a lot of people because what they had is gone. How does the guy who owned the corner bar and made a living on beer and video poker going to go back to normal? His building and his house are in foreclosure. His former customers are terrified to come within 6 feet of another human being. His investments are junk. He’s finished. He won’t be back.

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  3. “The first thing we do, let’s beat all the lawyers with a big-ass surf-casting rod.” – Shakespeare

  4. Woe to you lawyers as well! For you weigh men down with burdens hard to bear, while you yourselves will not even touch the burdens with one of your fingers.

    – Luke 11:46

  5. “The more I think about, old Billy was right.
    Let’s kill all the lawyers, kill ’em tonight.”
    – Eagles

  6. Didn’t Chocolate Jesus run on tort reform? Wonder whatever happened with that.

  7. Honestly, fark all lawyers

  8. STOP THE HYSTERIA!

    Medical professional should be sued like anyone else when they injure someone.

    This is NOT a real emergency that requires any special protections or actions by government. Treat this like the seasonal Flu/Cold and get back to work.

    1. “Treat this like the seasonal Flu/Cold and get back to work.”

      Part of the work of a judge is to dismiss actions they deem frivolous. Suing someone over a cold seems like it’s the acme of frivolity.

      1. If that were their job description, judges themselves would be sued into oblivion for neglecting their job.

        1. Judges can be impeached if they are derelict in their duty. No need for legislation or your so-called tort reform.

          1. And again , it doesn’t seem to be happening. Shall we now extend your rule to legislators?

            1. In the immortal words of Lord Marlborough, “Reform? Reform? Aren’t things bad enough already?”

  9. Without any discussion of the types of lawsuits, Reason declares they’ll be frivolous because …. DOCTORS are angels!

    As someone that has practiced in the medical malpractice field, there is an initial threshold before you can even file. The barriers to a law suit are ample and malpractice is difficult to prove. There are plenty of doctors out there that treat patients like lab equipment, and they do fuck people’s lives up … often times permanently.

    Tort reform is horseshit.

    1. “Several states—including New York, New Jersey, and Michigan—have also recently issued executive orders or passed legislation to protect doctors, nurses, and other hospital staff from frivolous lawsuits.”

      Isn’t that what we have judges for? It’s part of their work to dismiss cases they deem frivolous. So these doctors and nurses are already protected. If the problem is that judges are not providing enough protection, and letting too many frivolous lawsuits slip through, wouldn’t a better solution be to replace these judges with ones who are more stringent wrt the cases they allow to proceed. If replacing them seems too much, then a harshly worded letter of reprimand might do the trick.

      1. Really, that’s what judges do, dismiss frivolous cases? They don’t appear to be doing so.

        Loser pays would solve a lot of problems.

        1. People that scream for tort reform seem to have about as much knowledge about the legal system as gun control advocates have about guns.

          If a case is frivolous, not only is it dismissed but both the attorney *and* client may be liable for a variety of sanctions, including paying all costs and attorneys fees incurred by the other side.

          The quality control and disincentives are already built into the system and are addressed on a case-by-case basis.

          1. It doesn’t seem to be happening very often. There are a lot of frivolous lawsuits. Ergo, judges aren’t doing the job you assigned them.

            1. //There are a lot of frivolous lawsuits.//

              Your cite fell off.

          2. If a case is frivolous, not only is it dismissed but both the attorney *and* client may be liable for a variety of sanctions, If this were true the Roundup case would never have seen a jury. You’re describing the way you wish the process worked.

    2. Agreed. Tort reform is largely protectionism masquerading as common sense. Malpractice insurance does not contribute significantly to the high cost of healthcare, and how often do TR advocates draw a distinction between types of damages? Leave it up to juries, not beholden legislators, to decide how much to award plaintiffs.

      1. “Leave it up to juries, not beholden legislators, to decide how much to award plaintiffs.”

        If the lawsuit is frivolous, it should never get to the point where it comes before a jury. That’s a terrible abuse of their civic duty, having them taking part in a farce, taking them away from their families and work without compensation. A big waste of their time.

        1. And, it doesn’t. Frivolous cases are dismissed on motions. There are hurdles built into the legal system *already*.

          1. Also, juries awarding damages and frivolity are entirely separate issues.

          2. “There are hurdles built into the legal system *already*.”

            This is as I thought. What do you think of lawsuits where merely the filing of it is meant to punish or prevent some action? It’s never really meant to go to court because its legal merits are slim if not quite frivolous, but meant to deter a less wealthy victim. It seems to go against the spirit of the law, when the machinery of the legal process itself is held to be punishment enough, irrespective of how the case plays before the court.

            1. In the medical malpractice context, this doesn’t usually happen. Many states, including New York, require an attorney to certify that they have consulted with a medical expert to determine that there is a reasonable basis to even file a complaint. And, if that turns out to be bullshit, the attorney is on the hook severely, including potential disbarment.

    3. The barriers to a lawsuit are negligible. It costs as little as $200 to file a lawsuit and even that can often be waived. Even if you never follow up on the lawsuit, it will cost the company tens of thousands of dollars to respond.

      Yes, there are some bad doctors out there and malpractice is a real thing. But the false and frivolous accusations are also a real thing and real malpractice is not all that hard to prove.

      1. //The barriers to a lawsuit are negligible.//

        That’s just not true. Don’t make thinks up if you don’t really understand the system. It isn’t helping anyone and it is dishonest.

      2. The biggest barrier is finding an attorney. From my experience, which may not mean much to you, we used to turn away close to 9 out of 10 cases that came to us. And of the cases we decided to pursue, an even smaller number ever made it past the point where an expert gave us the green light.

        Medical malpractice attorneys work on contingency. There is absolutely no incentive to file a bullshit case because it is a huge waste of time and money for the attorney.

        The notion that medical malpractice litigation is destroying the medical professions is a crock of shit, and always has been. The costs associated with it are negligible, in the grand scheme of things.

        1. Baloney. I have only seen one case where someone couldn’t find any attorney to take the case – so she filed it herself. As you might expect, it was a garbage case. Despite that, the defendant spent thousands of dollars to fight it. The fact that your firm turned away weak cases just means that the case gets picked up by the next firm down the hierarchy.

          Re: contingency fees as a control – that’s been an abject failure. Litigation in the US has become a lottery. Yes, there are some minimal filing costs and some small legal effort for each case. And yes, you’d rather not lose that investment every time. But when the costs are in the hundreds and the potential gains in the tens of millions, it doesn’t take a very large chance of winning to be worth playing the game. And that is what it has become – a game. A mathematical calculation that biases plaintiff’s attorneys to take and pursue weak cases.

          And the costs of our healthcare system are far from negligible. Malpractice litigation and the defensive medicine it encourages are a big part of the reason why US healthcare costs so very much more than every other developed country compared to the medical outcomes we achieve.

          Note: I’m not saying that all doctors are good or that all malpractice is bad. I’m saying that the stakes are skewed. We need a credible loser pays system. Contingency-based fees are not nearly enough.

          1. Attorneys don’t take cases that are losers, especially if they are working on a contingency. It’s not a lottery; that is absolutely ludicrous. A medical malpractice case is the most involved type of injury case and most expensive, in terms of out-of-pocket expenses on behalf of the client, for an attorney to undertake. You can’t magically push a garbage case into a multi-million dollar pay day. It just doesn’t work that way. I have no idea where you are deriving your notions from, but they are not accurate.

            //A mathematical calculation that biases plaintiff’s attorneys to take and pursue weak cases. //

            Absolutely not true. Even successful malpractice cases take years to bring to any resolution and often settle for a fraction of what they may actually be worth. People are not routinely winning millions of dollars. And those that do, an *exceedingly* rare event, have been very seriously injured by *very* negligent doctors.

            Keep in mind that a doctor may genuinely have fucked up, but the damages are the issue. In malpractice cases, causation is HUGE issue and a giant hurdle.

            The stakes are skewed … against Plaintiffs. And doctors, naturally, want to make it even harder.

            1. If you’re actually interested, here’s a study:

              https://repository.law.umich.edu/mlr/vol105/iss7/7/

              There are many others and they come to very similar conclusions. Malpractice cases are overwhelming resolved in favor of doctors, and part of the reason is that **juries favor doctors** even when negligence is clear.

              Plaintiffs are already getting shafted, across the board, in nearly every jurisdiction.

              1. So explain why plaintiff’s malpractice attorneys in Maryland do everything they can to shift cases to Baltimore where they get more favorable outcomes. Or why malpractice attorneys love to sue in MS. Medicine is messy and complex, outcomes aren’t guaranteed. This doesn’t stop malpractice attorneys from seeking an easy payday; more than once they have bullied their way to a settlement because the defendant didn’t want to waste the resources and risk a trial with a poorly educated jury.

                1. //Medicine is messy and complex, outcomes aren’t guaranteed. This doesn’t stop malpractice attorneys from seeking an easy payday; more than once they have bullied their way to a settlement because the defendant didn’t want to waste the resources and risk a trial with a poorly educated jury.// It is not an easy payday. It requires a lot of hard work, a lot of coordination between a competent attorney and an expert, it requires a scientific and/or medical basis (without which the entire case is open to a procedural dismissal) and, most importantly, requires a huge investment. Nothing about medical malpractice is easy but people that, frankly, have never practiced or studied law a day in their life are convinced any crackpot just shows up in court and some random congregation of doctor hating jurors award him $10 million dollars. It’s a completely absurd notion. Are there frivolous cases? Of course. Are they a problem? Yes. Are they anywhere close to being the norm? Absolutely not. Frivolous cases exist but are not even close to being the problem that “tort reform” advocates constantly try to make it out to be. I’ve already posted an analysis in this thread; perhaps you should take a look rather than regurgitating baseless talking points.

                  1. I’ve read your arguments. I do not believe frivolous lawsuits to be the norm. Perhaps your experiences show integrity and due diligence. I can promise that is not a universal experience from many physicians I know who have been sued for malpractice. Please stop being condescending.

    4. “As someone that has practiced in the medical malpractice field, there is an initial threshold before you can even file. The barriers to a law suit are ample and malpractice is difficult to prove.” Spoken like a true blood sucking POS trial lawyer. This is total bullshit. You only need an injured party and sometimes not even that. Then you don’t have to “prove” malpractice. You only need to suggest that a different test or treatment might have made a difference. No proof necessary. No scientific evidence. “There are plenty of doctors out there that treat patients like lab equipment, and they do fuck people’s lives up … often times permanently.” Again, this is total bullshit. The vast majority of physicians care deeply about their patients’ welfare and the remainder almost all still try to do their very best. Period. They have always sacrificed their health for patients and now are risking their very lives. Many (along with other medical personnel) are dying for their patients. So go $%#% yourself.

      1. Spoken like an ignorant moron that will has never stepped inside of a courtroom … other than to plead not guilty to a DUI and for failing to pay child support. Complete and utter ignorance.

  10. As an ED physician, I love the topic of tort reform. I can promise you on at least half the patients that are seen, we order unnecessary tests just to cover our butts for the rare zebra that may emerge. Patients want and demand this because the majority are not paying the full weight of the bill. We have a healthcare system that takes the worst of socialized medicine, and the worst of free market principles and melds them together into one. I am for a free market, but the march towards socialization is inevitable. Since we are headed there, socialized systems control costs with, well, CONTROL. That means robust tort reform. Again, in an ideal world, we would have a free market. For example, I could chose to offer discounted rates to patients that would agree to only sue for quantifiable damages, and charge more to those that refuse. But alas, this will never happen. So you want socialism America? Then you need to take ALL that comes with it.

    1. The standard of care against which liability is assessed is set by healthcare professionals, not some random bureaucrats, and not by the plaintiff’s bar. Not ordering random tests is not malpractice unless it is the standard of care, in which case the tests aren’t so random or irrelevant. So, if doctors agree it’s bullshit, the malpractice plaintiff loses.

      Successful malpractice cases are usually very clear, and rare. If a doctor is found liable, the mistake is usually quite egregious.

      1. “The standard of care against which liability is assessed is set by healthcare professionals, not some random bureaucrats, and not by the plaintiff’s bar.”

        And I’m sure a random collection of 12 people nearly always make rational decisions regarding those standards, right?
        Sort of like the 12 people who decided RoundUp caused that guy’s cancer?

        1. They don’t always make rational decisions. In fact, they side overwhelmingly against Plaintiffs, even when the negligence is clear.

          https://repository.law.umich.edu/mlr/vol105/iss7/7/

          If your problem is the jury, then say that. Do away with jury trial in civil cases. You can always try a case in front of a judge, and judges tend to rule in favor of Plaintiffs in medical malpractice cases much more frequently than juries (see above article).

          But, that is *not* tort reform. These are two very distinct arguments.

  11. The standard of care should be set by a consensus of healthcare professionals. And, in theory, it is. In practice, however, the relevant standard of care for any particular case is set by whatever “expert” the plaintiff’s attorney can dig up. It doesn’t even matter all that much if the defense attorney can show that the plaintiff’s expert is a biased hack with a vested interest in the answer. The process is the punishment. The doctor’s insurance company will pay tens or hundreds of thousands of dollars defending even the most frivolous cases. Meanwhile, the plaintiff is out $200 and his/her attorney is out a few tens of hours of work.

    1. Apologies. That should have been a reply to Geraje Guzba’s comment at 11:19 above.

      1. A plaintiff doesn’t just show up to court with any dingbat off the street. The experts are typically leaders in their respective fields and routinely testify for the defense *and* for plaintiffs. These people aren’t hacks. If your case is shit, they’ll tell you because even the hired guns have an interest in getting hired again. You know who doesn’t get hired again? Hacks without any credibility that don’t know what they are talking about.

        Further, if an expert’s qualifications are truly so spurious, the court can always make an independent assessment that the expert is not qualified to provide a report, or testimony for use at trial.

        //It doesn’t even matter all that much if the defense attorney can show that the plaintiff’s expert is a biased hack with a vested interest in the answer.//

        That’s just not true. An expert cannot be paid on a contingency basis, first of all. Second, if they are hacks, they’ll wilt at trial.

        //The process is the punishment. The doctor’s insurance company will pay tens or hundreds of thousands of dollars defending even the most frivolous cases. Meanwhile, the plaintiff is out $200 and his/her attorney is out a few tens of hours of work.//

        If it’s a truly frivolous case, then it doesn’t get far. It really doesn’t. There are procedural mechanisms for dismissing such cases early on. There a specialized malpractice parts in many court systems that work to filter out the crap.

        I don’t know why people have this perception that the medical malpractice field is all wild west. It’s not. It is already a VERY controlled and restrictive field. Most malpractice patients cannot even find a lawyer because lawyer’s don’t waste time with losing cases (since they are on contingency).

        1. This is something that we can have endless back and forth on. While it is true that if you stuck to the standard of care, you should win, that does not mean you won’t get dragged through the muck for months to years to resolve the issue. Doctors do have insurance, it is the prolonged ridiculous process that is an aggravation. Also, just being named in a suit (even if you won) has to be reported in national data banks, and when privileging (getting your permission to practice in a hospital). Also, lawyers love to argue that tort reform has not affected cost. The problem is that there has never been real tort reform. Even in states such as mine, where we have it, the main headaches are the same. Regarding “experts” at trial, many hardly practice anymore. They have a lot of paper credentials, and get paid really well to just testify for a living. The main point of my comment is that we cannot have our cake and eat it too. If we had a true free market, I should be able to choose not to treat certain people if they insist on being a higher risk to me. (In hospitals, you do not have this choice). In such cases, you would not need tort reform. However, again, since we are on an inevitable march to socialized medicine, robust tort reform is a necessity. I am talking about tort reform far more robust than any state has ever implemented.

          1. //While it is true that if you stuck to the standard of care, you should win, that does not mean you won’t get dragged through the muck for months to years to resolve the issue.//

            Okay.

            But getting stuck for months trying to resolve a complex issue of malpractice, by definition, means the case is *not* frivolous. So, it seems that your issue is not frivolous malpractice claims, but *all* malpractice claims because you are “stuck” in a socialized system. In other words, you don’t want to have the carry to burden of an prospective liability. Because the government screwed you, you feel it should screw patients as well.

            I don’t know how to respond to that.

            If you think we’re on an inevitable march toward socialism, then you don’t have to worry. Soon enough, there will be no qualified doctors and no patients worth treating. It’ll be like the old Soviet Union, where doctors got paid the same as grocery store clerks, and had to take side jobs treating high ranking party members in order to make ends meet.

            Okay. I guess.

        2. While it’s true that there are supposed to be procedural mechanisms for dismissing frivolous cases early, in practice judges too often do not exercise that responsibility.

          Perhaps your experience is based on your local jurisdiction. I will admit that I have seen a significant difference depending on where I lived. From what I can tell, a big part of it is whether the judges are elected or appointed. Elected judges know they have to get reelected and seem, to me at least, much less likely to dismiss a case.

          1. //While it’s true that there are supposed to be procedural mechanisms for dismissing frivolous cases early, in practice judges too often do not exercise that responsibility.//

            Because most cases are not frivolous. Why is that so hard to believe?

            1. re: “Why is that so hard to believe?”

              Because I’ve seen so very, very many that are.

              1. In what context? Are you an attorney? Insurance adjuster?

              2. Oh bullshit. You’ve seen no lawsuits.

                You’re making stuff up on this website.

    2. This just plainly isn’t the case. You have never been in a lawsuit or prosecuted a lawsuit, or defended a lawsuit.

      But there’s a better system than the American system, and that’s a system with strong regulation, and a strong safety net, so that people harmed through malpractice are protected from ruin.

      Insurance companies are the real leeches.

  12. Ahh libertarians. Always in service to corporations.

    1. No safety net.
    2. No regulation
    3. No lawsuits to hold corporations to account.

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