Frivolous Defense

April 14, 2010

Tort Reform/Frivolous Defense

With the near omnipresent discussion about Tort Reform, one can’t help but begin to think that there are too many “frivolous lawsuits” being filed, and even won. Just about the only law suits the news reports on are the ones where someone got a ridiculous verdict for a tiny accident. Are these true? Maybe some of them. But, by and large, they are exaggerated or have missing facts that the news didn’t bother to include. Most people do not realize that there are methods in place to keep truly frivolous suits from being filed – and certainly from going to a jury and being won. But that’s another blog for another time.

What is not discussed very often is frivolous defenses. For example, when a doctor does an operation on the wrong leg and gets sued, then files a defense saying that somehow his treatment was not outside the standard of care. As if it could ever be reasonable to do surgery on the left leg when the order clearly states the right leg is the injured one. But this happens much more often than one might realize. And when it does, it costs everyone a lot of money. Because the doctor has filed a defense, the lawyers and parties for both sides must go through hours and hours of discovery, hire experts (often costing the injured plaintiff thousands of dollars) and prepare to go to trial only to have the doctor settle at the last minute when he should have offered the settlement before the Plaintiff even had to hire a lawyer.

But the media does not like to talk about this aspect of lawsuits. After all, Plaintiffs are the ones starting the suit. And no one likes overly litigious people. But our legal system is set up so that people can have some recourse when they are wronged. Money is the only thing an injured person can get to “make up for” the damage. Unfortunately, even the highest court in the world could not give someone a new leg. And it is regrettable when a plaintiff must spend years in litigation and thousands of dollars because of a frivolous defense.

Charity McKenzie

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