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A New Frivolous Lawsuit Statute

  By: Joe Messerli

A woman buys a coffee at McDonald's and drives off with the coffee between her legs. After the coffee spills and scalds her, she sues McDonald's for the coffee being too hot. She wins a $2 million dollar judgment.

In a class action suit against Cheerios over a food additive´┐Żwith no evidence of injury to any consumers´┐Żlawyers were paid nearly $2 million in fees, which works out to approximately $2,000 per hour. Consumers in the class received coupons for a free box of cereal.

A Florida man sues six bars and liquor stores and the local electric company after he sustains injuries from his drunken climb up an electrical tower. The "victim" climbed over a fence and a locked gate to reach the power lines.

Over hundred people die in a nightclub fire due to unsafe indoor pyrotechnics at a Great White concert. A wrongful death lawsuit is filed, with one of the defendants being a large oil company. What is the connection of this company to the lawsuit? It gave away tickets to the concert as part of a sales promotion.

We've all heard plenty of examples like these. The list of frivolous lawsuits brought by greedy lawyers and plaintiffs who won't take any responsibility for their own lives is endless. Most people read examples like these and laugh, especially when the defendants are doctors, insurance companies, corporations, etc. who have deep pockets. Unfortunately, the legal costs and settlements translate to higher insurance costs, layoffs of workers, falling stock prices in our 401(k)'s, and other problems. It is no longer a laughing matter. This editorial explores some of the problems caused by frivolous lawsuits as well as a solution to the problem.

Problems Caused by Frivolous Lawsuits

It drives up the price of malpractice, auto, and other insurance.

The most obvious problems of these lawsuits is the exorbitant cost of insurance. Anyone who has health insurance through their job or business has seen the tripling cost over the past 10 years. Doctors all over the country have walked off the job in protest of malpractice insurance that's reached into the hundreds of thousands per year for some specialties, even if they've never made a significant mistake! For doctors and insurance companies to make enough money to justify their time & investment, they must raise their prices.

It forces innocent defendants to spend money for legal defense and cheap settlements.

A complex lawsuit such as a malpractice lawsuit can cost hundreds of thousands to defend, and that's if you win. Endless appeals can raise the price even higher. Many companies will pay a small settlement because it's ultimately cheaper than paying the legal costs. Many companies or doctors will also pay a small settlement to avoid the negative publicity or a blot on their record, even if they've done nothing wrong. The legal system has effectively been set up to reward lawyers who are good at harassment and extortion.

It drives up the price of products and services.

Class actions, product liability suits, and other lawsuits ultimately force businesses to raise the prices of their products and services. Consider the example in the beginning of the oil company that gave away Great White tickets. Despite the fact they clearly had nothing to do with the fire or the responsibility of the deaths, they may end up paying a large settlement to make the lawsuit go away. No big deal, right? It's a rich oil company after all. However, this is money that could be spent drilling for oil. This is money that could go to hire new workers, lower gas prices, pay out bigger stockholder dividends, or research new technology. Another example is health insurance. Think back to what you paid for health insurance 10 years ago as compared to today. In 10 years, did we as a nation really get that much sicker? Or could an explosion of law school graduates be a better explanation? It's not only malpractice insurance that causes an increase in prices; there are secondary effects. How many unnecessary tests and precautionary procedures have been done by doctors who wanted to make sure they didn't get sued if something went wrong? Medicine has evolved from a cure-the-patient mentality to a cover-your-butt mentality. Some doctors even retire because they can't afford the cost of malpractice insurance. The same type of cover-your-butt mentality translates to additional business costs for warnings such as Black & Decker's drill warning "Our drills shouldn't be used for dental purposes" or Preparation H's hemorrhoid cream warning "Not to be taken orally". You know these warning came from intellectuals who filed a lawsuit after losing some teeth or became ill from eating a couple tubes of cream.

It rewards undeserving lawyers and plaintiffs.

Plaintiffs who refuse to take responsibility for their own actions are constantly being rewarded with attention or money. Consider the teenagers who sued McDonald's for making them fat or the people who smoke for decades who sue the tobacco companies when they get lung cancer. Who is really responsible for the damage? Rewarding people like these sends a message that self-control and personal responsibility mean nothing in this country anymore. And as long as we continue to reward attorneys that file these suits, we're only going to invite more.

It consumes court resources and delays processing of legitimate cases.

It can take years or even decades to get a legitimate lawsuit through the courts. Plaintiffs who are wronged and deserve just compensation are often forced to take a small settlement since unscrupulous defendants may have the resources to drag out a case. Many people with legitimate gripes are even dissuaded from filing a lawsuit at all because of the enormous amount of time it takes to get anything through the courts. Also, keep in the mind that frivolous lawsuits consume the time of judges, court reporters, etc., which costs the taxpayers a considerable amount of money.

It leads to poor patient care (in the case of medical liability).

Medicine is an inexact science, and even the best doctors can make mistakes or come across situations they've never seen. The best way to fix these problems is peer review. In other words, doctors get together and discuss mistakes & problems along with how they can make sure these situations don't repeat themselves in the future. However, in today's legal liability climate, do you think a doctor will ever willingly come forward with public knowledge that they made a mistake? Doctors are also more likely to order extra tests or prescriptions that they wouldn't otherwise. The side effects of these extra tests and drugs can take a toll on the patient and cause even more problems.

The Solution: A Frivolous Lawsuit Sanction Statute

There is no solution that is going to completely wipe out frivolous lawsuits and lawyer greed, but there is a way we can go about alleviating the problem. What I propose is a new law dedicated to punishing those who abuse the legal system. Here are the main points to be included:
  1. Civil judges would have the ability to declare a lawsuit "gross abuse of the legal system" or "obviously unwinnable". If the judge makes this declaration, the plaintiff and plaintiff's attorney are subject to punishment.
  2. All legal costs incurred by the defendant must be paid by the plaintiff.
  3. The plaintiff's attorney is fined an additional amount equal to the defendant's legal costs.
  4. Lawyers would be subject to a point system similar to the one used for drivers' licenses. Each frivolous lawsuit would cause a loss of a certain amount of points, depending on how outrageous the offense. After losing a certain amount of points, the lawyer would be subject to suspension or possible disbarment.
There are obviously going to be obstacles encountered and compromises made to get such a law enacted, but think what kind of an effect it would have. Lawyers would always think twice about filing a lawsuit or recommending a client do so. Controls would have to be put in to make sure the right people are punished, and an appeals process would have to be created for the unscrupulous judges out there. However, we'd finally be slowing down the stampede of wasteful lawsuits and open up the court system to those who really need it. One note of warning though: it will be very difficult to get such a statute enacted when you think about who holds most of the power in this country: politicians and judges, most of whom are all lawyers themselves.

Additional Solution for Medical Malpractice Insurance

The area most notably affected by the growing number of lawsuits in the country is medical malpractice insurance, which has hit us hard in our pocketbooks through exploding health insurance fees. The complexity of these cases is an even bigger problem then the frivolous nature of the lawsuits. Malpractice cases are notoriously intricate and long. An enormous amount of expert, complex testimony is required. Usually the way a case goes is that you have experts from one side explain in detail how a doctor screwed up and a number of experts from the other side explain how the doctor didn't do anything wrong. In the end a jury, who may not have any real understanding of the case, must choose between 1) A rich doctor & insurance company or 2) A poor, feeble, disfigured or suffering plaintiff. The doctor and insurance company can probably withstand losing; the patient plaintiff may not. Thus, the jury is likely to side with the plaintiff even if they believe the doctor didn't do anything wrong. Because of this standard set of events and the outrageously high cost of a trial, attorneys usually settle a case before trial. In either case some innocent doctors and ultimately the average health insurance participant pays the price.

What's the solution? For starters, we need a special court system set up strictly for medical malpractice cases. We already have special court systems set up for tax issues and bankruptcy filing. This is another area where we need a specialized set of experts put in charge of handling all disputes. Standard juries wouldn't be used in these cases due to the complexity of the cases. Think about why we need this new court system. A doctor suffers through 8 years of ultra-intense college studying, followed by 4 years of round-the-clock residency training. And this is just to
start their career & learning. Any doctor will tell you that a physician's learning curve is infinitely steep. Is it reasonable to assume that medical issues managed by these highly trained professionals can be understood by your average person off the street who likely has no medical training? In these cases, a "jury of peers" should be a panel of medically trained experts. For one thing, it would streamline the case; you wouldn't have to spend so much time and resources explaining things. Second of all, it's much more likely that justice will be done. Cases can be decided based on facts & objective analysis rather than compassion for the victim or loathing for the rich defendant. Read more about this new court system idea.

For one good doctor's experience with the legal system, go to .

For a more detailed plan in solving the health-care crisis, go to my solution to the health care crisis.

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Last Updated: 01/07/2012

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