... I consider that high, as do the study authors...?
The authors of this study actually got a lot of publicity and mileage asserting exactly opposite of what you claim they posit. They have gone on record saying that, as demonstrated by this study, the US legal system is actually quite good at dissuading frivolous cases, and cite a figure of about 10% of claims that did not have merit but received compensation, even noting that among this figure there were many many close calls (arguably a close call isnt frivolous). Several of these authors even did the media circuit telling the public that their study showed that frivolous lawsuits were overblown. There were smaller follow up studies at Harvard and elsewhere as well that I will try to track down, that demonstrated more or less the same thing.
I think you have to realize that the phrase "frivolous lawsuit" has a technical legal definition not always appreciated by physicians. Doctors often use the phrase whenever a doctor gets sued but no wrongdoing is found. In fact most losing cases are not frivolous -- A plaintiff can lose a lawsuit and it not be frivolous. To survive dismissal, a suit has to make out a basic case which demonstrates a cause of action, an alleged deviation of the standard of care by someone with a duty to provide care, and damages (basically "I hurt, you did it, and here's what it costs to make me whole"). On top of this in most jurisdictions, a malpractice complaint must contain a sworn statement from a physician indicating that there appears to have been a deviation from the standard of care based on his review of the medical records. Even in the most idiotic of cases, if a plaintiff is able to make out the elements of a case and provide this doctors affidavit, the case is not deemed frivolous, as that term is defined. The plaintiff may lose badly, he may initially name a dozen physicians in the suit whose names merely appear in the medical record but who will ultimately be dismissed due to lack of involvement, but none of this makes this suit "frivolous".
Frivolous is thus not really the opposite of meritorious, under the legal definition. You are allowed to be found wrong and still have had a basis. It should be noted that there are stiff monetary penalties (sanctions) for attorneys who file frivolous cases, which is why few get filed. You would be hard pressed to find a lawyer who would risk sanctions on a contingency fee case -- that's a double hit -- you spend a lot of time working on a losing case for free, and get hit with a fine to boot. So we don't really see this. What we do see is lawyers relying heavily on extremely sketchy doctor's opinion to get them over the hurdle if being frivolous. If a doctor says something in the record deviated from the standard of care, that by definition is not frivolous -- none of the judge, lawyer or plaintiff is qualified to audit such an opinion. So in my opinion, the problem isn't frivolous lawsuits, which are rare and there are already sanctions in place to deal with them. the problem is shill doctors willing to offer credibility to an otherwise meritless claim. Its mazing what some doctors will say for a steady stream of $200/hour on the side. This is, and has always been within control if our own profession. Plaintiffs lawyers may be out to get us, but it's really other doctors that keep the more questionable suits in the game.
As you can see, I enjoy and have a lot to say on this topic...
🙂
