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September 10, 2004

Comments

UCL

You state or quote:

"health care providers won approximately 62% of the cases that were tried by a jury"

and "on average over a six year period "patients only won 34% of the time and health care providers won 66% of the jury trials."

and conclude, "Roughly 2/3 of all malpractice lawsuits are unsuccessful".

The latter statement is incorrect. Only 2/3 of malpractice lawsuits that go to a jury trial are unsuccessful. 95% or more of all medmal lawsuits do not go to a jury trial and are settled out of court, and most likely all of them are settled for money damages of some amount. It is more accurate to say that well over 95% of all medmal lawsuits result in settlements or plaintiff verdicts.

Ted

That 66% of medical malpractice trials are lost by plaintiffs does not mean that 66% of medical malpractice suits are meritless, since there's no reason to think that the larger universe of settled cases has the same distribution as the tried cases.

UCL overstates the case in the other direction: one can't make any judgment on the settled cases without more data. Plus some value judgments: is a nuisance settlement below the cost of defense a victory for the plaintiff or defendant? What about settlements where the plaintiff walks away with nothing except a release of malicious prosecution claims?

The better place to challenge Ms. Edwards is on the "50% of malpractice is committed by 5% of doctors" claim that I have yet to see support for -- especially in the ob/gyn field, where the vast majority of doctors have been sued.

david giacalone

I just want to remind everyone that while all frivolous suits are meritless, not all meritless suits are frivolous, as the 2nd Cir. App. Court recently reminded us in the MetLife reorganization case. (NYLawyer, Aug, 12, 2004).

The customary frivolousness standard is "without basis in law or fact," and allows good faith argument for an extension, modification or reversal of existing law. See Model Rule 3.1, and the definition at law.com.

A case or a defense that is a close call on the law or the facts is not frivolous (even if it loses on the merits and is therefore "without merit"). Bringing such a case or raising such a defense should not be the basis for disbarring a lawyer.

Rufus

I see that David has already said what I was going to say. A defense verdict does not make a suit frivilous. In ten years doing defense work I saw very few cases that I considered frivilous. The few frivilous cases that I did see, largely legal malpractice, were usually won on motion with no discovery or with minimal discovery. I did see more, and still see now that I'm in-house, coverage/bad faith cases that I considered frivilous. But then I'm pretty doctrinaire when it comes to coverage, so I'm not one to judge, particularly given the fact that in many of the coverage cases I considered frivilous the insured ended up prevailing.

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