Medical Malpractice: Understanding the Notion of Frivolous Claims

By | December 5, 2016

In 1997, Doctor Tad Grenga was called into Sentara Norfolk General Hospital in Virginia to attempt to reattach the hand of a construction worker who had severed his own right hand with a power saw. Since the patient had a long history of psychiatric problems, Dr. Grenga asked the second opinion of a psychiatrist to ensure that the patient had the mental ability to consent to the surgery. After agreeing that the sedatives had not impaired the patient’s mental faculties, the patient refused consent as he was being taken into the operating room, saying that he would cut off his hand again if it was reattached. Although this meant that the hand would never be reattached if they didn’t act quickly, the surgeon closed up the wound on did not operate.

Shortly thereafter, the patient consulted with an attorney and attempted to sue the hospital for $3 million on the grounds that they should have operated, knowing that his judgement was impaired by mental issues. After a trial that last nine days, the jury ruled in favor of Dr. Grenga.

Although this is an especially frivolous example, many people gravitate towards this type of story, involving a totally meritless claim that attorneys use in an attempt to siphon money out of the system, when thinking about medical malpractice lawsuits. In fact, back in 2006, USA Today even ran a story, claiming that about 40% of medical malpractice cases in the United States are groundless.

While many may assume that cases like above are the norm, the Kansas City medical malpractice attorneys at Fowler Pickert LLC compiled a list of facts and sources on medical malpractice claims that tell a very different story about the state of medical malpractice litigation. Some of these are jaw dropping. According to recent estimates, there are 40,000 medical errors occurring in the United States each day, resulting in between 210,000 and 440,000 patient deaths each year. This translates to 9.5 percent of all deaths each year in the United States, putting it third behind deaths from heart disease and cancer. Moreover, it’s estimated that even in the face of many errors, most medical incidents in hospitals are either not caught or not reported.

While these numbers clearly illustrate that medical errors are very common in the United States, they alone still do not absolve lawyers who attempt to litigate particularly frivolous claims. However, a study done by the New England Journal of Medicine tackled this very issue and found a couple interesting points. First, only about 3 percent of medical malpractice claims had no adverse outcome from medical care and second, claims without true merit rarely received any form compensation. Additionally, a different study found that the percentage of medical injury victims who end up suing is very small, at fewer than 2%.

If the numbers in these studies are accurate, despite common belief, it would not make sense for many attorneys to pursue litigating frivolous medical malpractice claims to begin with. Many personal injury attorneys operate on a contingency basis, meaning that each case they take is an investment. If they spend too much time and money litigating an unsubstantiated claim, since the system is adept at sniffing out poor claims, they will not see any return when the case reaches an unfavorable verdict. And if most victims of medical related injury rarely even consider suing anyway, there is no reason to encourage fighting a losing battle.

Although there certainly are examples of frivolous medical malpractice cases that have gone to trial, the assumption that most resemble this type of claim is not substantiated by the evidence.  Medical malpractice is no doubt a sensitive area of the law, but a system of checks and balances is necessary to protect patients from medical error. Until humans are either completely infallible or willing to take responsibility when mistakes are made, there will always be a need for attorneys in this field of healthcare.

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