jkirkman, IMO (and I think most who propose loser pays) is that ONLY in frivolous lawsuits does it become ‘loser pays’. That naturally brings up the next question: Who decides frivolity?
I’ve a resume ready when the system is implemented.
In that case, forget it. My comments on american discovery may or may not apply in your jurisdiction. Good luck, man. 
And I’ll bet most of the same crowd who are clamoring for an end to contingency suits were the ones cheering on the plaintiff’s attorneys in movies like “Philadelphia” and “Erin Brokovich”.
I may be mistaken, but aren’t there already penalties for filing frivolous lawsuits? Wouldn’t the “loser pays” proposal apply to all lawsuits? Otherwise, I don’t see what would be changed.
www.rmf.harvard.edu/publications/resource/legal-reports/jun1997/body.html+%22frivolous+lawsuit%22+penalty&hl=en&ie=UTF-8]Lawyers Sanctioned for Frivolous Claims (cached page as original has moved)
A very quick search shows that holding lawyers liable for frivolous cases is state-by-state (not surprising). In this case, it was up to the defendants in the original case to show the original was frivolous (or so I gathered from the article). I’m not up on the “Rule 11” federal statute (IANAL).
I’m going to be ill. Doctors are going on strike due to over-letigious lawyers and insurance companies. When will we see the day where idiots that have the audacity to sue someone for no good reason are in turn prosecuted?
Perhaps theICONiac wasn’t, but our new friend MrPot linked directly to a website called “The Stella Awards”, so named for the woman who sued McDonalds, which is directly refuted by the Snopes link provided by kung fu lola. I know it’s a bit muddled, but the gist is, The McDonald’s suit was legitimate and all the suits (every single last one of them) on the “Stella Awards” website are completely non-existent in the real world.
Welcome to The Straight Dope, MrPots. Even though lola’s reply wasn’t directed to you, personally, please do click the link provided and read it carefully. We are all about fighting ignorance around here, afterall; hence, the name of the site.
And Karl (not your real name ), good luck with the suit. I hope it doesn’t cost you too much in time, trouble or money to get it dropped!
Shayna, I could be wrong (probably not, but there’s a first time for everything), but I think the smiley in MrPots post means you just got wooshed.
Yeah, I considered that option, D_Odds, until I saw he used the same smilie at the end of his last sentence, as well. Given that his first post ever is practically littered with them, I suspect he’s just a smilie freak and really thinks the info at the link he provided is real and that the American court system is fucked.
But of course, as always, I could be wrong. I guess we’ll just have to wait and see if he ever comes back to respond.
Karl, my sympathies. What you describe does happen. In fact, less than a week ago, I had a long conversation with a friend in a similar situation, which I’ve detailed in a Great Debates thread:
http://boards.straightdope.com/sdmb/showthread.php?threadid=159922&perpage=50&pagenumber=1
While I’m not going to claim that this practice is a Good Thing, I will try to explain why it happens, and why attorneys who do this aren’t just being evil or lazy.
First, some background for those who may not be familiar with the American legal system. Factor One: Every category of claim has a limitations period (aka the statute of limitations) which sets forth a number of years that the plaintiff has to file suit. If he doesn’t, no matter how valid his claim might be, it’s forever barred. Two years is a common limitations period for med-mal cases. Factor Two: Before a lawsuit is tried, each party is required to provide factual information, including depostions, to the other side. When this is done, each side’s expert witness(es) look at the facts an give an opinion on whether there was negligence and, if so, who is responsible. Those opinions are exchanged, and the experts are deposed. This discovery process can (and usually does) take years.
Assume a meritorious case. A doc screwed up, and the patient was injured as a result Let’s be optomistic. The patient realizes something is wrong within a month. She sees another doctor, who conducts tests, and tells her what remedial steps medically need to be taken. Let’s say that happens within 60 days. 90 days have gone by so far.
The patient looks into hiring a lawyer. She talks to friends for a recommendation, or maybe sees a lawyer who she knows because he did her will, or closed on the sale of her house. He recommends a malpractice attorney. The patients is referred to a malpractice lawyer, who has her sign an authorization so he can get her medical records. Let’s say this process happens within a month. (I’m being wildly conservative about the times in this response.) 120 days.
The hospital(s) and doctor(s) involved all don’t send the records right away. The lawyer sends a second request. All of the records finally arrive. The lawyer looks at them, and decides that there may be some merit to the case. He then tries to locate a doc who specializes in the relevant area to review the records. He may have to talk to several before he finds one willing and able to do the job. The records are sent to the doc, who reviews them and renders an opinion. Someone screwed up in either the operating room or in followup care. 90 days more. 210 days total.
The lawyer talks to the client, who decides to proceed. The lawyer drafts a complaint and files it. He’s on trial on another case, so it takes 30 days for this to occur. He names only one doc, the one who the expert thought was the most likely wrongdoer. 240 days.
Process is served on the defendant. He turn it over to his insurer, who hires attorneys. The defense attorneys review the complaint and file responsive pleadings. He asks for a 30 day extension. Maybe there’s a motion or two filed. 90 more days. Discovery finally begins, a year after the injury. This is in a near-perfect world.
Sometimes this process takes a lot longer. Maybe the patient focuses on remedial care for 3 months more before hiring an attorney. Maybe she doesn’t realize the extent of her injuries right away, or that they might be the result of malpractice. Maybe one of the defendants can be successfully served with process right away. Maybe it takes a few extra months to get the records and evaluate the case. Often the statute of limitations is about to run by the time all this takes place.
Further records are exchanged. Written interrogatories (questions) are propounded and responded to. The patient, subsequent treating doctors and the patient’s family members are deposed. Everyone who was involved in the patient’s care during the time she was injured is deposed. Experts are hired, submit opinions and are deposed. (Usually, the defendant’s expert is the last to be deposed.)
During this process, it comes out that another doc may have had something to do with the injury, even though he wasn’t the most likely suspect at first. Or the defendant’s expert offers a theory which points to someone else. At the trial, the defendant’s attorney defends on this basis. (There’s even a name for it - the empty chair defense.)
If that other doctor wasn’t named as a defendant before the limitation period runs, too bad for the plaintiff.
Unfortunately, the only way to fully prevent this from happening is to sue everyone involved at the start. Maybe not very admirable, but understandable.
If you think this is a bad practice (and I don’t disagree), suggest an alternative. (If your suggestion is to increase the limitations period, don’t say it in front of a doctor or insurer - They’ve been instrumental in lobbying for short limitations periods.)
“If you think this is a bad practice (and I don’t disagree), suggest an alternative.”
You already have.
So there you go. In well under a third of the time available for the statute of limitations to run out, you’ve found a qualified reviewer who can tell you that there’s no reason to include your hypothetical Karl in the lawsuit. No reason to cause him distress or expense.
No excuse.
Did you read my response? All the plaintiff has at that point are medical records. If you think medical records clearly tell the whole story and reveal what the defense is going to be, you’re dreaming.
Hey, if page 264 of the records had an entry by Dr. Defendant stating “I cut the wrong nerve”, plaintiff’s med mal attorneys (FTR, that’s not what I do) would have a lot easier job. It don’t happen that way. Even if Doc B or Nurse C saw Doc A do the deed, they’re not going to say so in the records.
Try to come up with something less simplistic.
Did you read the OP?
It does not take a genius to evaluate the medical record and realize that a physician who had no part in a patient’s care other than to provide brief CPR before the code team arrived to handle a cardiac arrest, is not at all a logical candidate to be named in a suit over something relating to a spinal surgery 8 months previously.
There are a couple of other factors your scenario does not address. For one: Firms that do a lot of malpractice litigation frequently have one or more docs on the payroll to rapidly evaluate cases and see if there’s gold in them thar hills. That considerably cuts down the time needed to evaluate malpractice suit targets.
For another: Adding marginal or implausible defendants to a suit increases the possibility that a malpractice insurer will settle rather than trusting its fate to the hands of an impressionable jury.
And that’s money in the bank.
Karl Gauss, my father is an ER doctor, and I never fail to laugh at what he’s gotten sued over. I think my favorite story was the case where he prescribed medicince for a patient. This patient did not take the medicine, and got sick again because of it. The patient then sued.
He’s also being sued for something else at the moment; I can’t remember what. I think this is the fourth time he’s been sued, and he’s won every case so far. Generally, the plaintiff’s claims are so outrageous that there’s no need for any worry on our part. When he mentioned that he was being sued this time, the first words out of my mouth weren’t “Oh no, what are we going to do?”, they were “can I read the case?” (I’m an aspiring lawyer.) So this is alot of hassle for everyone, but you’re clearly in the right, so don’t worry.
Random, thanks for your thoughtful and provocative post. I do appreciate the realities involved. Still, I must agree with Jackmannii. Anyone reviewing the chart would have seen that I could not possibly have been responsible for the bad/sad outcome. Indeed, the fact that my name (which appeared only in a single nursing note and nowhere else) was culled from the chart, a massive tome, shows that someone did spend a great deal of time scrutinizing it. Why couldn’t that effort be put to better use? Like omitting those who are obviously de facto “innocent”.
And, to all those who continue to commiserate, thanks!
As a successful litigant in a medical malpractice suit, I can tell you that the principle of “loser pays” makes a huge difference in the number of cases.
Our lack of funds did not prevent us sueing but our lawyer pointed out that if we lost the insurers for the doctor would claim costs from us. For this reason he required a statement from an expert in the field that the doctor’s actions were negligent. He had to be certain that we were going to win before he issued any paperwork. Ther were probably 5 or 6 doctors directly involved in our case but we only sued one. It would be impossible to make a case against a doctor with only peripheral involvement.
Interestingly we only sued the doctor and hospital to find out what had happened. Originally we had arranged a meeting to discuss the events but the doctor’s insurer and the hospital’s insurer told them not to talk to us. They ended up having to settle out of court with us.
Please point out where I justified (or even addressed) the specific facts described by the OP. I very deliberately avoided doing so, and clearly expressed sympathy for the OP’s situation right from the start. I then cited a similar situation faced by a doctor friend. The cite makes it clear that, once again, I’m opposed to what the plaintiff’s attorney (apparently) did in the case. Finally, both the second and final sentences in my post plainly state that I don’t condone the practice. Maybe you should read my post again, or take a reading comprehension class.
I’m unaware of any law firm that has a practicing physician “on the payroll”. Cite, please, for your claim that this practice is common?
I will concede that plaintiff’s malpractice firms don’t have to go searching through the yellow pages for a doctor to contact. Still, as I clearly said in my first post and repeated in my second (so you’ve now ignored it twice - maybe you don’t have a response?) there’s a limit to what you can find out just from the records. Why you think lawyers invest time and money in depositions if everything is so crystal-clear from the records?
I hear this claim frequently. Why I never hear is any basis for the claim. (In my experience, insurers are unlikely (especially in malpractice cases) to make settlement offers unless there’s some basis for the claim. They’re well-aware that doing so would encourage such claims.) Cite for your assertion, please? I expect that your cite will address malpractice claims, because there usually are relatively few malpractice insurers in any one state, and that makes a difference.
While an individual corporation may offer a few dollars to settle a weak contract claim because doing so is unlikely to to generate other such claims (no one will ever know that the ACME corp paid Wile E. Plaintiff a few thousand dollars, as the settlement agreement will expressly be confidential and no one much cares), the med-mal plaintiff’s bar will soon learn what the settlement practices of the State Physician’s Malpractice Insurance Society are, and behave accordingly. Trust me, SPMIS knows this, and deliberately will not follow the strategy you suggest.
I’ll repeat my main point again, using small words. Suing everyone is a bad thing. Yet, not doing so risks losing the case, because the medical records do not always make it clear who is at fault, and the steps that will show who is at fault in every case take a long time, longer than the law allows to sue. Therefore, the practice of suing everyone upfront will continue unless something is changed so that doctors who are not sued right away can be added later if depositions (or the dislosed defenses of other doctors) show that someone else may be responsible. Got it now, Jack?
Karl, I appreciate your comments. I really tried (at least at the start) to explain why this happens, without defending it in every case. I appeciate what you are going through. I have been a defendant in a civil case. The amount claimed was in the millions. While it wasn’t a legal malpractice case, it did arise from my representation of a client. It was baseless, and the plaintiff dropped it after we filed a motion to dismiss. Yet it cost time and money and was generally annoying while it lasted.
The practice of naming anyone does sometimes result in defendants being named who are extremely unlikely to have anything to do with the case. In some cases, and yours might be one, it’s just stupid. The chance of it helping the case are outweighed by the few hundred dollars (in my state, a few thousand dollars) it costs to name and serve process on another defendant. It’s kind of become an ingrained reflex to avoid risk of loss or legal malpractice claims later. Again, I don’t justify it. In many cases, though, naming a few extra docs is the safe way to go. Where do you cut it off? 30% chance the guy did something wrong (or at least a plausible claim can be made by another defendant that he did)? 10% 1%?
Here’s an analogy that you might have come across. Patient sees you. You’re pretty sure of your diagnosis, but there’s a 20% chance it’s something else. If the “something else” is serious, I’m sure you’ll test for both possible causes of the problem. No argument so far. Hell, I bet Blue Cross would even reimburse for the test.
But there’s another, extremely remote possibility. The test for it is fairly expensive, or maybe involves some discomfort for the patient. Your professional experience tells you that it isn’t Possibility #3, but based upon a later review of the symptoms that you chart, somebody might claim otherwise and sue. It’s pretty unlikely, though. You wouldn’t do the test if you were the patient.
Do you order the test? Does the thought of not doing so scare you, just a little?
Maybe you won’t, but a lot of docs will, and do. Medical societies (and other lobbyists for malpractice limits) admit this practice, all the time. They call it Unnecessary Tests, and they blame lawyers.
Stated another way, those docs are needlessly inflicting these procedures on patients, not because they are medically necessary, but to protect the doc. The patient gets charged, too.
I submit that doctors who order these tests are doing something wrong. I understand why they do, though.
Heh. Getting the medical records in a malpractice case? I never handled medical malpractice, but I did do some automobile accident work and I was never able to get ahold of medical records from a doctor who treated the patient afterwards (the easiest route was actually to get them from the insurer’s lawyer) without physically going down to doctor’s office, where the records were held, and standing there and smiling and explaining over and over that the release form I had in my hand meant that they really should give me copies. Generally, there were threats involved on both sides. The only thing I wanted those records for was to assess the level of injury to my client. I can’t imagine what it’d be like trying to get them from a doctor who was named in the suit.
I stand in awe of anyone who can get a medical office to release any information without going that far.
Faced with a tight filing deadline, I’d not even bother to try to do triage on who might be at fault. A scorched earth name everybody policy is the only way to protect your client’s rights no matter what happens.
That’s the thing here. The client’s rights are the concern of the Plaintiff’s lawyer. Not the feelings of the doctors who might not have been involved, not the way things are going to look a year or six from now when the story gets reported on Obscurestore, not the overall health of the civil legal system.
It’s All. About. The Client.
Would you want your lawyer to be tentative and take baby steps for fear of upsetting somebody when you were paying her to protect your rights?
Damnit, I feel dirty now. Lawyers, as I mentioned in my last post accidentally defending the profession, are scum.
what I never hear. (Refers to post responding to Jack.)
Ha. (I just read 2trew’s post.) Much blunter than mine, but he(she?) makes some good points. I know a plaintiff’s med mal attorney who has forms for the first, second, third and fourth request letters to the doc’s office seeking records. (They get progressively more obnoxious.) FTR, the records belong to the patient, not the doc.
You should also see what some hospitals and medical groups charge for simple copies of the patient’s records.
Some docs just aren’t real good with the idea that someone else has the right to tell them they have to do something.