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President Obama Refers to "Frivolous" Medical Malpractice Claims: What Is a Frivolous Case?

February 20, 2011

During his state of the union address, President Obama made reference to working with the GOP on establishing medical malpractice tort reform, which has included economic caps on damages for non-economic damages in many states. An equally troubling development is the increasing tendency of politicians and the media to toss around language like "frivolous medical malpractice lawsuit". This raises an important question – What is a "frivolous medical malpractice lawsuit?"

Studies indicate that preventable medical errors result in the death of as many as 98,000 people per year. At Montlick and Associates, Attorneys at Law, we represent people injured by medical care that does not meet professional standards, defective medical devices and dangerous drugs throughout Georgia. We recognize the destructive and unjust result caused by caps on non-economic medical malpractice damages.

Legislation is currently being proposed in the House of Representatives that would cap non-economic damage awards in medical malpractice cases at $250,000, which is also apparently supposed to discourage "frivolous" medical malpractice cases. The proposed bill would limit damages for "pain and suffering" (i.e. non-economic damages) caused by "any healthcare goods or services or any medical product."

The two types of compensatory damages in medical malpractice cases are economic and non-economic damages. Economic damages are quantifiable monetary losses including lost wages, loss of future income and medical expenses. Non-economic damages are non-monetary losses that can be more difficult to quantify, but are no less important. They include pain and suffering, mental anguish, disfigurement, physical impairment, inconvenience, loss of companionship, loss of enjoyment of life and loss of consortium (loss of services and companionship of a spouse).

One way to understand the potential damage from such legislation is to consider the types of cases that it will impact and how it will impact them. The legislation being considered by the House would still permit those who are injured by negligent medical treatment to recover for lost income and medical expenses but would impose a cap on non-economic damages, such as pain and suffering and decreased enjoyment of life. The impact of this legislation could include preventing accident victims who suffer permanent disability, including mental and physical impairment or disfigurement, from even making it into the courthouse door. Given the high cost of pursuing a medical malpractice claim and the legitimate risk of not prevailing, many victims who suffer terribly debilitating injuries may not even be able to find a medical malpractice attorney who is willing to take their case. Consider some basic examples of the "frivolous" lawsuits that this legislation would impact:

Cerebral Palsy from Injuries Suffered during Birth: A child may suffer cerebral palsy resulting from serious brain injuries suffered due to negligence of the doctor during the delivery. It is hard to quantify what an infant would have made in income but there is no denying that a child who suffers severe brain damage and may never be able to live independently would need a lot more than $250,000 to compensate for their decreased quality of life.

Retiree Who Suffers Fatal Heart Attack because of a Failure to Diagnose: A retiree may suffer a fatal heart attack that results in his death, which is based on a failure to diagnose, and causes his death before he even arrives at the hospital. Because the retiree's lost earnings are minimal and the medical expenses are insignificant, this person, who suffered a fatal outcome, may receive relatively little for his injuries.

These are examples of the types of "frivolous" lawsuits that will be discouraged by caps on non-economic damages in medical malpractice cases. Clearly, they are not "frivolous" in any respect, but would result in people and families not getting compensation they need and deserve.

The supposed rationale behind legislation for caps on non-economic damages is that it will lower medical malpractice insurance premiums and help reduce the skyrocketing cost of healthcare. However, there is no reliable data that shows any correlation between non-economic damage caps and decreases in medical malpractice insurance premiums. Medical malpractice insurance reform has been far more successful in lowering medical malpractice premiums and health care costs.

Damage caps disproportionately impact those who have suffered the worst injuries. They are the ones who have endured losses that far exceed their medical bills and lost wages. Juries do not typically return high verdicts for non-economic damages when patients have suffered only minor injuries. Rather than discourage "frivolous" cases, damage caps prevent those who suffer the most serious injuries from receiving full compensation for their loss. When the victim in a medical malpractice case is a child, student, retiree or someone who is permanently disabled, the victim may suffer minimal economic loss or have difficulty substantiating that loss, but the victim's non-economic loss including terrible pain, permanent disfigurement and a substantial decline in the quality of life may be enormous.

The reality is that it is also not economical for an attorney to bring a "frivolous" lawsuit, because the attorney works on a contingency or percentage basis, and will not be paid any fees if they lose the case. An attorney who brings frivolous lawsuits will not be in business for long. Additionally, Judges have the ability to impose attorneys fees and costs on parties who bring frivolous lawsuits.

Montlick and Associates, Attorneys at Law, represents people throughout Georgia who are hurt by the negligence of health care professionals, as well as defective medical devices and dangerous or defective drugs. We believe that those who suffer serious injuries caused by the negligence of another should be fully compensated for all of their injuries. We work hard for our clients and are committed to providing exceptional service as part of our goal of being the best personal injury attorneys in Georgia.

If a negligent medical professional, defective medical device or dangerous drug has injured you or someone you love, call us for a free consultation to discuss your legal rights. Our experienced Georgia medical malpractice attorneys are available to assist clients throughout all of Georgia, including but not limited to Albany, Athens, Atlanta, Augusta, Columbus, Gainesville, Macon, Marietta, Rome, Roswell, Savannah, Smyrna, Valdosta, Warner Robins and all smaller cities and rural areas in the state. No matter where you are located we are just a phone call away, and we will even come to you. Call us 24 hours a day/7 days a week for your Free Consultation at 1-800-LAW-NEED (1-800-529-6333). You can also visit us online at and use our Free Case Evaluation Form or 24 Hour Live Online Chat.

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All information provided by our blogs is general in nature and should not be relied upon as legal advice. Consult a Montlick attorney for details about your unique situation.

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