Courting Justice: Frivolous Lawsuits

March 11, 2013

By Robert N. Hunn

In 1996, I tried a medical malpractice wrongful death case. A 64-year-old woman was taken to the ER after falling down a flight of steps. Her neck hurt. As would eventually be discovered, she had broken her neck and a vertebra was pressing against her spine. The radiologist, however, negligently read the x-ray as normal and she was sent home. Over the next four days, the vertebrae disrupted the flow of blood through the cord and she died.

On the night before trial I was on the phone with the defense counsel and I asked him why the insurance carrier wasn’t settling the case, since I had presented the defense with a very reasonable demand. I have never forgotten what that attorney said to me. “Just between us girls, my client was clearly negligent and his negligence caused the woman’s death, but a plaintiff hasn’t won a medical malpractice case for a couple of years in Montgomery County, so we are banking on that.”

The jury returned a verdict in favor of the plaintiff (for almost twice my demand), which made the local newspaper for becoming the first plaintiff’s verdict in Montgomery County in three years. The article quoted a hospital spokesman as saying they were considering whether they would appeal the verdict but would continue to fight against these frivolous lawsuits.

These frivolous lawsuits? My lawsuit was frivolous?

That’s when I learned what tort reformers meant by the phrase frivolous lawsuit. It’s not a word with any substantive meaning. It’s simply a label; a label used to describe any lawsuit by someone in favor of tort reform. That’s it.

I’ve never seen a definition of the phrase frivolous lawsuit. I don’t think there is one. It’s a buzz word. Do you know what a buzz word is? It’s a word intended to evoke emotion (in this case anger against lawsuits) that does not have any real meaning. In fact, you can make any lawsuit sound frivolous by not disclosing all of the facts surrounding the case.

I don’t believe there are frivolous lawsuits. Instead, I believe there are stupid lawsuits. Here is the definition of a stupid lawsuit. It’s where, after they hear all the facts of the case, a reasonable and prudent person says, “Really?……You’re suing over that?……Really?”

I don’t file stupid lawsuits for one simple reason. I’ll lose. Another reason I don’t file stupid lawsuits is the cost. We advance the cost of litigation and only recoup the cost if the case settles or I get a plaintiff’s verdict. The cost of pursing a medical malpractice case typically ranges between $50,000 and $100,000. Last year, my office spent over $200,000 for just one medical malpractice case. I can’t afford to spend $50,000 on a stupid case I will lose. Why wouldn’t I take that money and invest in a CD? At least a 1% return is better than a negative return. I may be a lawyer but I’m not stupid (well, not that stupid). From a business perspective, it makes no sense to invest that sum of money in a case I know I will lose.

Now, if you are going to retort (I love that word) with the infamous McDonald’s Case, I respectfully request that you watch the documentary Hot Coffee, which sets forth what that case was actually about.

Thanks for letting me vent.