Frivolous Lawsuits

Frivolous Lawsuits May Not Be

Definitions of frivolous: When referring to a person: to behave in a silly or lighthearted way; not serious or sensible. Trifling, trivial, carefree, unconcerned, no serious purpose. No worth or importance. An activity we disapprove of because it is not useful; wasting time or money. 1

In the savage world of litigation, lawsuits filed without factual basis in law, or lacking good faith, are regarded as frivolous. In the context of serious harm, death, and damages, this is not the appropriate adjective to describe claims that are serious and potentially damaging. If there are legitimate injuries and reasonable claims, a negligence filing is not frivolous. Lawsuits filed having no basis in law or fact, and lacking sound legal arguments, may be referred to as frivolous but, even so, there really is nothing trivial or light-hearted about them. Defendants can be negatively impacted by legal fees and time wasted for appearances in court, among other burdens.

A truly frivolous lawsuit is a legal claim filed by an attorney where the factual contentions are baseless and amount to “delusion” or “fantasy”. Frivolous claims are based on indisputably meritless legal theories. 2

Frivolous claims rarely go forward in the litigation process and are usually thrown out. These claims have little chance of winning at trial and the people who file them know that their case has no arguable legal basis in fact. 3

To Harrass and Intimidate

Frivolous filings are frequently submitted with the intent to harass or intimidate an opposing party. The attorneys, or other individuals involved, understand that the lawsuit has no merit and are fully cognizant that the suit will fail. Absurd legal theories are advanced and can be damaging to the attorneys who file them. In U.S. Tax Court, frivolous arguments can result in penalties up to $25,000. Occasionally, frivolous lawsuits advance through the court system and the most successful frivolous claims are those filed without an attorney involved. In these cases, the individuals arguing their positions have no idea what they are doing and their arguments are totally incompetent.

Journalists, politicians, and healthcare providers like to use the term “frivolous lawsuits”, but judges typically avoid the term when ruling on motions, claims, or arguments that lack justification or merit. In many States, a court can award attorneys’ fees when a party has brought a lawsuit that is deemed frivolous. 4

Frivolous Claims Harm the Economy

Frivolous lawsuits within the U.S. tort system are considered to hurt the overall economy, although most tort lawsuits are legally justifiable. A statistic from 2009 revealed that approximately two hundred and fifty billion dollars was spent on tort lawsuits. 5 Frivolous lawsuits are predictably flawed and outrageous. As ridiculous as they are, they consume valuable court time and resources. On the positive side, some of these cases are published for their humor value. As examples:

Frivolity At It’s Best

A photographer filed a lawsuit on behalf of a monkey. It had taken a “selfie” using the photographer’s camera. PETA thought the monkey should enjoy copyright protection. . . . In another case, a woman sued a weather station for $1000., claiming a faulty prediction that led to her catching a cold. The filing plaintiff failed to dress for cool weather because the weather professionals predicted warm temperatures. She ended up with influenza, missed days of work, and required several medications.

There are many accounts of frivolous filings and I cannot resist one more: A man visited a gentlemen’s club in 1996. He sued the club, claiming that a topless dancer had caused him to suffer “whiplash”. In his claim, he described parts the dancer’s anatomy as “cement blocks” which caused him “physical pain and mental anguish”. He requested $15,000. in damages, which were ultimately denied by the judge. 6

Frivolous lawsuits do occur, describing insignificant accidents in strange places, but we may hear about them more often, due to a widely-known case that began as a “frivolous filing”.

A 79-year-old woman named Stella Liebeck sued McDonald’s in 1992. At the drive-in window, Ms. Liebeck ordered hot coffee to go. She accidently spilled the coffee into her lap, which resulted in third-degree burns to the pelvic area of her abdomen. She was hospitalized for more than a week while she received skin grafting. She required medical/surgical follow-up for over two years. Ms. Liebeck sued McDonald’s for $20,000. for reimbursement of her medical expenses and lost income. McDonald’s offered to pay $800. As a result of negative publicity drummed up by McDonald’s, public opinion was overwhelmingly in their favor; “coffee is supposed to be hot!” This was an accident and a prime example of a “frivolous lawsuit”. However, the case proceeded to trial and discovery revealed pertinent information in Ms. Liebeck’s favor.

McDonalds’ operations manual required that franchises should keep the temperature of their coffee at 180-190 degrees Fahrenheit. Coffee this hot, if spilled, could cause third-degree burns within a few seconds. McDonalds was aware of this risk but neglected to warn customers. It was also discovered that McDonald’s had already received over 700 hundred complaints that the coffee was too hot. Ultimately, Ms. Liebeck was awarded 2.86 million dollars by a jury. Should this lawsuit be considered “frivolous”? Some believed, yes, while others considered it as a legitimate and meaningful lawsuit that held a corporation responsible for a serious act of negligence. 7

How Prevalent Are Frivolous Lawsuits?

Most personal injury attorneys cannot afford to take on an idiotic case. Occasionally, inexperienced attorneys might file a case with no legal merit. Sometimes, the filing is just a mistake, and one that they will, ultimately, pay for. Probably the worst things lawyers may do involve failure to understand their case.

Plaintiffs’ attorneys will usually take medical malpractice cases on contingency. They will be advancing huge sums of money to develop, file, and prosecute the case. And they’re going to want this money back, including their “attorneys” fees and costs. Very few reasonable attorneys are going to gamble on a case that they know is worthless. Medical negligence lawsuits, in particular, are rarely filed without thorough investigation and preparation beforehand.

Obstetrical negligence cases are complicated and time intensive. It is risky and counter-productive for trial lawyers to intentionally file “frivolous” claims. Costs of litigating an injured-baby case can amount to hundreds and thousands of dollars. If the Plaintiffs’ case does not settle, or loses at trial, not only do the injured parties fail to collect any money on their claims, but the attorneys representing them can never recover the money spent on the case. In addition, the prevailing parties (defendants) can request the court to award their fees and costs from the losing party.

Clearly, a contingency fee agreement represents a significant monetary risk to the attorney and law firm representing the injured party. An awareness of this risk obligates filing attorneys to carefully review and investigate the case, long before any decisions are made to file specific claims. (See Certificate of Review).

1 https://collins dictionary.com https:// www.britanica. com https:// dictionary.cambridge.org

2 Livingston v. Adirondack Beverage Co., 141 F.3d 434,438 (2d Cir. 1998)

3 Nietze v. Williams, 490 U.S. 319, 325 (1989)

4 [1] any civil action of any nature commenced or approved in any court of record in this State, the court shall award . . . reasonable attorneys’ fees against any attorney or party who has brought or defended a civil action, either in whole or in part, that the court determines lacked substantial justification. Colorado Law (https:// law.justicia.com/codes/Colorado/2016/title-13/costs/article-17/part-1 section 13-17-102/).

5 (https://www.inside counsel.com?2011/07/22/frivolous-lawsuits-clogging-us-courts-stalling-eco.)

6 Litera Blog. The World’s Most Frivolous Lawsuits As Of 2024. March 24, 2024.

7 Litera Blog. The World’s 5 Most Frivolous Lawsuits as of 2024. Anthem Injury Lawyers. Famous Frivolous Lawsuit Cases. 2024.

Relevance to Practice

Situation:

Claims have been filed against you in District Court, alleging midwifery malpractice. Your patient claims that following delivery, you failed to recognize the extent of a perineal laceration, which you had diagnosed as a first-degree tear, not requiring repair. Once home, the patient noted that something did not feel right. When she called you with symptoms of heaviness in her perineum, you reassured her that her symptoms were normal. Although the patient requested to be seen as soon as possible, she was scheduled for an appointment in 6 weeks and advised that her perineum would be examined at that time. Before her scheduled appointment, her symptoms worsened and she sought a second opinion with another midwife who diagnosed unrepaired third and partial fourth degree perineal tears. The patient has had to undergo extensive debridement and surgical repair with the added diagnosis of rectal-vaginal fistula formation. Claims against you include midwifery negligence, pain and suffering, loss of consortium, and significant economic and non-economic damages. (This is a claim with merit, despite defendant’s assertion that it was “frivolous”.)

Vulnerability:

Claims for malpractice can occur anytime in the course of your career, sometimes more than once. Although obstetricians are sued more often than most other specialties in medicine, as a maternal healthcare provider, the nature of your practice can, unfortunately, involve damages and injuries to two individuals stemming from one event; labor and delivery. Midwifery malpractice frequently includes consulting or, in certain States, formally collaborating with physicians. It is also important for you to realize that so-called “frivolous claims” of malpractice do not actually occur with any frequency. Constructing a malpractice claim against multiple care providers is expensive. Plaintiffs’ counsel may finance a case “on contingency” in exchange for a percentage of any money awarded to a plaintiff by a jury. Most trial lawyers will carefully evaluate potential cases and seek the opinions/certifications of expert witnesses prior to filing. If attorneys representing plaintiffs happen to lose at trial, all the money invested in the case is lost. Unless a case appears rock-solid prior to trial, very few attorneys would risk a significant financial loss on a case that lacked merit.

Responsibility/Duty:

As a care provider, you nearly always have a duty to your patient. Rarely, a judge may decide that you have no duty, but unless there is only a remote connection between you and the injured patient, duty is implicit in the midwife-patient relationship. Although it will be a continuing theme throughout these articles, fulfilling your responsibility to your patients will usually protect you from legal harm. Adherence to midwifery standards of practice, core competencies, and ethical behaviors will almost always be protective.

Considerations:

Resist any attempts to identify you (CNM/CM) as a “mid-level”. This widely disseminated label is not benign. Describing a clinician in this manner comes with negative implications which could be detrimental or prejudicial in a legal case. Powerful entities have allowed this designation to become mainstream. It is a lie and destructive to the professional profile of midwifery and the integrity of practice.

http://www.midwivesontrial.com

Relevance to Practice

Nurses On Trial: Malpractice Issues in OB Nursing

Unhealthy Cultures of Care