‘No Frivolous Lawsuits’ Contracts Offered as a Strategy to Discourage Medical Malpractice Claims

There is no question that among the many meritorious medical malpractice lawsuits commenced each year in the United States, are a number of frivolous ones. Those ill-advised actions cause a number of problems for plaintiffs as well as doctors and hospitals.

Advocate of tort reform cite frivolous lawsuits as an evil that has driven up medical care costs and malpractice insurance premiums. They also blame such actions for doctors leaving the practice of medicine or moving away from states with the most liberal medical malpractice litigation standards or damage limits.

On the plaintiffs’ side, frivolous lawsuits cause an undeserved bias against meritorious cases in which egregious malpractice has occurred or where the injuries inflicted are catastrophic. There is also the problem of federal and state laws being proposed and passed in order to significantly restrict medical malpractice claims as well as the amount of damages that can be recovered even when a plaintiff is successful.

Now, a new strategy has been devised to discourage frivolous medical malpractice lawsuits; the so-called “no frivolous suits” contract. The agreement is gaining popularity across the country as a tool by which medical providers can insulate themselves from potential litigation in cases where there is no legitimate basis for the claim.

While the stated purpose of the contract makes sense, patient advocates are strongly opposed to such agreements. They see the contracts as an intimidation tactic that is really designed to discourage patients from bringing even legitimate claims.

The contract is part of array of defense “tactics” offered by such companies as Medical Justice Services that offer strategies designed to cut down on a doctor’s exposure to medical malpractice claims. The company maintains that the contract is fair and does not prohibit legitimate malpractice actions from being brought.

According to a 16-doctor women’s health clinic outside of Chicago that uses the contract, patients have been “supportive” and, after asking questions, sign the agreement. The clinic will still treat any patient who does not sign the contract.

The agreement provides for the possibility of a lawsuit against the patient for breach of contract if a frivolous malpractice claim is brought against the doctor involved. Those familiar with statistics on medical malpractice claims maintain that, of the approximately 70% of malpractice claims that are discontinued by the patient or dismissed by the courts, many were frivolous from the beginning.

Whether a claim is frivolous is open to many variables, however, and, as a result, no definition of the term is included in the contract. Frivolous may be inferred from a dismissal by a court at a preliminary stage of the litigation or specifically mentioned in the court’s opinion as the basis for such a dismissal.

The inability of a plaintiff to obtain a qualified medical expert to support the claim is also indicative of most frivolous cases. The failure of an administrative agency to find any basis for a complaint is also indicative of a claim that may be baseless.

Some states also have statutes that impose penalties on plaintiff’s that are unsuccessful in their lawsuits. Such laws are specifically designed to discourage the type of claims the contact also targets.

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