Published on:

Frivolous Medical Malpractice Lawsuit or Frivolous Defense

By

What can we do to curtail lawsuit abuse?

If a doctor performs a surgery on the wrong place on a patient and when he discovers his error, admits to his patient that he made an error, does the doctor, the doctor’s attorney and the doctor’s insurance company then deny any wrongdoing and refuse to compensate the patient for the mistaken surgery? You would certainly think not. The doctor clearly makes an error, does the right thing and admits it to his patient (how could he do anything else since it operated on the wrong portion of the body?), he surely isn’t going to deny the facts when it comes to compensating his patient, is he?

Well take a look at this article (http://fredericksburg.com/News/FLS/2010/042010/04212010/541740/index_html?page=1) regarding Dr. Michael Snedden, an orthopedic surgeon in Virginia. See what the patient’s medical malpractice attorney, Ben Glass, has to say about this case http://virginia-medical-malpractice.com/fredericksburg-surgeon-sued-for-failing-to-mark-operative-site/.

According to the above sources, Dr. Snedden mistakenly operated on the wrong portion of his patient’s body, refused to make it right by compensating his patient and, when sued by his patient, the doctor, his attorney and his insurance company denied, in writing in court documents, that the doctor did anything wrong. Isn’t this lawsuit abuse? Isn’t this a frivolous defense to a medical malpractice case? Isn’t this the type of refusal to take responsibility for one’s actions what prompts ordinary people to resort to hiring attorneys to bring justice to their situation? Isn’t this the type of lawsuit abuse that runs up medical costs, doctors’ medical malpractice costs and the costs we all pay to operate our court system?

I can understand a doctor and a patient disagreeing on the amount of compensation that should be paid when a medical error was made. However, denying that the doctor did anything wrong, in writing, in court documents, is an abuse of the legal system and a fraud, when the doctor, his attorney and his insurance company know that an error was made. It is what I call a “Frivolous Defense” and I see it every day in my law practice. In the 32 years I have been representing personal injury clients in California, my firm has filed hundreds of lawsuits against alleged wrongdoers who are represented by insurance companies and their defense attorneys. In 100% of those cases, the alleged wrongdoer, their attorney and their insurance company denied any wrongdoing or liability whatsoever. In well over 95% of those cases, the insurance company eventually paid my client after tying up the court system with their denial of the true facts and their responsibility. Isn’t it an abuse of our judicial system and a drain on our governmental resources for defendants to arbitrarily deny “everything” in a lawsuit?

How can the common use of the “Frivolous Defense” to delay justice and tie up our court system be reined in? It’s easy! Enact laws that mandate that when a lawsuit is concluded, the loser of that lawsuit must pay the winner’s attorney’s fees. Why hasn’t this simple fix been instituted before? Because insurance companies and big business don’t want such a law. They want to be able to make it as expensive, difficult and time consuming as possible for a legitimate claim to be processed through our judicial system. If they had to pay attorney’s fees of the rightful claimants, it would no longer be economical for them to use frivolous defenses in legitimate lawsuits.

By
Posted in:
Published on:
Updated:
  • jim O’Hare AIC AIS

    I am a med mal claims guy since 1985 and worked for several med mal insurance companies. A wrong sided surgery has always been targeted early for settlement. It is a Res Ipsa case and we go right to damages.

  • “It’s easy! Enact laws that mandate that when a lawsuit is concluded, the loser of that lawsuit must pay the winner’s attorney’s fees.”

Contact Information