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‹ FEATURED DISCUSSION

September 23, 2004

What is "frivolous"?

By Ted Frank

With that out of the way, we can move on to the topic of how the two plans compare in dealing with what are sometimes called "frivolous lawsuits." We agree that caps are not a panacea for such lawsuits, however defined, but the question remains whether the Kerry plan can do better.

As an initial matter, the word "frivolous" needs to be explored. Problems arise because a number of tort reform proponents and people in the popular press use the term "frivolous" in the colloquial sense, as a synonym for "unsound" or "improper" or just simply as a shorthand for "bad as a matter of public policy." Opponents of tort reform cheerfully co-opt this term by also expressing their opposition to "frivolous" suits--but their use of "frivolous" is in the legal context, where even a completely meritless suit may not be "frivolous."

For example, if I were to sue a fast-food chain because I spilled hot coffee on myself, my suit would be meritless, it would be bad public policy to allow me to recover, and talk-show hosts everywhere would consider it frivolous--but my suit would probably not be "frivolous" under the law. Some states go even farther, and require a showing of bad faith before judging a suit "frivolous." I therefore try to avoid using the word, as it only confuses the debate; it is a practice I commend to proponents on both sides of the issue.

In my experience, when doctors express their fear or concern of frivolous lawsuits, their concern is about one or both of two kinds of suits: (1) lawsuits of dubious merit that take time and expense to defend oneself against, but which will eventually be resolved for a nuisance-value settlement or in favor of the defendant; and (2) lawsuits of dubious scientific merit where a doctor is unfairly accused with 20/20 hindsight of making a wrong decision, and where the testimony of an expert-for-hire is combined with the demagoguery of a plaintiffs' attorney and a misled lay jury to result in a large judgment against the doctor.

I think caps, at least at the margin, do much to reduce both kinds of cases, simply as a matter of economics. A lawyer will take a longshot case if there's a chance of a big result: that tail of the distribution increases the expected payout of a lawsuit, decreases the chance a risk-averse insurance company will fight, and increases the settlement value. I wouldn't claim that caps will reduce these two categories of lawsuit to zero, and resolve all doctors' grievances against the current medical malpractice system. But surely chopping off the tail and the chance of unmoored non-economic damages increases the quality of lawsuits that are actually brought, simply because it takes a more meritorious case with real damages in a world with caps than a world without caps before it becomes profitable to sue a doctor. Do you disagree?

Thus, before we continue to a discussion of the points of the Kerry-Edwards plan (on which, Walter Olson's Wall Street Journal article is an excellent starting point that I would have trouble improving upon), what do you mean when you say "frivolous lawsuit"? And what do you think Kerry and Edwards mean by the term "frivolous lawsuit"? Do you agree that either of the two categories of lawsuit mentioned above are a public policy problem and a deterrent to doctors practicing medicine? And, if so, why do you believe Kerry-Edwards plan will affect filings in these two categories?

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Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.