The Frivolous Law Suit That Drives You Crazy

Cathedral in Cusco, Peru - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com


Frivolous medical malpractice suits increase the cost of health care and burden the court system with needless litigation. Let me share a personal experience, probably not unlike thousands of others, that demonstrates there must be a better way.

Two years after entering private practice I provided anesthesia for a patient who had a fissure removed from his anal area. I gave medication via an IV while the surgeon placed local anesthesia in the operative area. The case lasted ten minutes and was soon forgotten until about a year later when the surgeon, a fellow colorectal surgeon, the registered nurse and operating room technician, the hospital, and I were sued for chronic rectal pain, anal incontinence, erectile dysfunction, painful urination, and depression stemming from these maladies.

The delay in filing law suits of questionable merit in not unusual. The one year statute of limitations is satisfied, and the medical staff finds it difficult to remember any details of the case other than what has been entered on the written record. I reviewed the chart and could not imagine how giving a patient an appropriate amount of intravenous fentanyl and versed could contribute to his alleged complaint. I notified the malpractice insurance carrier and soon after met with my assigned attorney, assuming I would be dropped from the case in short order. Little did I know this was the beginning a four year circus that cost a lot of money and time.

Interrogatories, depositions, and hearings followed for the next two years until the plaintiff’s attorney, realizing the insurance company was not going to pay to settle the case, resigned. The three physicians and hospital attorney breathed a sigh of relief, anticipating the travesty would come to an end. Undiscouraged, the plaintiff decided to proceed pro per.

At the three year point all parties, their attorneys, and the plaintiff met with a mediation attorney for non binding arbitration. The plaintiff arrived 30 minutes late dressed in combat fatigues, sporting a long beard, and carrying his records in a card board box. At the conclusion of the session the mediator stated unequivocally the plaintiff’s case had no merit and recommended charges be dropped.

The plaintiff disregarded the findings and over the next year an inane game evolved where the judge who was assigned to the case ordered submission of a series of pretrial documents. The defendants invariably responded on time, while the plaintiff never seemed able to fulfill his duties in a timely fashion. Yet in all cases, the judge excused his irresponsible behavior and allowed the plaintiff an extension. The message was clear -- the defendants must play by the rules, but the plaintiff need not.

During the four years I often asked my attorney why I remained a party to the case. A timid man, he suggested caution and patience and reassured me I eventually would be exonerated. Well, it’s easy to be patient when you are not the one being strung along for years. I brought my concerns to the attention of my colleague and good friend who was a tennis partner of my attorney’s boss, who also was President of the California Trial Lawyers Association. I called him that afternoon and condensed four years of legal frustration into five minutes. He promised to look into the matter and within a week the plaintiff offered to drop me from the case provided I would not sue him for generating a malicious law suit. I agreed but was left frustrated and angry with the legal system which allows the plaintiff to perjure himself with scant fear of penalty. In this dirty game a good attorney is priceless.

When last year the Democratic Congress drafted and enacted health care legislation, the domain of frivolous law suits was left untouched. Supporters of the status quo, the personal injury attorneys, were quick to defend their turf by offering euphemisms like “every patient has the right to have a day in court” or “we’re just protecting the constitutional rights of our clients.” Legitimately injured patients are entitled to these rights but not ones who lie to bilk the system or their legal accomplices who make a fortune driving up the cost of health care.

Next: New Rx’s to preserve patients’ rights and reduce the cost of litigation.