The overwhelming majority of lawsuits have no merit. Even if a person slipped on an oil spill in a supermarket, damages are 100% their fault. The video will show that 90% of people walk around it. It will show that 90% of people who fall from it, get up and have no damage. That leaves the plaintiff who was too stupid or inattentive to walk around it. The defendant is being asked to pay for the pre-existing disease and frailty from aging that was the real cause of the damage. The lawsuit industry is a lawyer scam. Everyone pays for their scam in the form of higher prices. Businesses and products are kept out or driven out. Our economic growth could double if the lawyer profession were stopped.
In the case of medicine, add 5% of costs for defensive medicine, procedures that are not medically necessary, but legally necessary. An example is taking people to the ER to assess a small injury, where most bills are $1000 an hour. The USA health care bill is $5 trillion, so $250 billion is to prevent malpractice litigation. This is also fraud because of the lack of medical necessity. Medical necessity benefits the patient. When it benefits the provider by preventing lawsuits, it is medical fraud. However, providers have a duty to survive financially, and litigation is a threat to that survival. Tort litigation was designed to replace long cycles of violent revenge. It substituted money payments to the damaged person for violent retribution. It has turned into a scam by lawyers and providers. When we say, defensive medicine costs $250 billion, that goes to the doctors and providers. It far exceeds the cost of litigation, around $50 billion. That explains why organized provider groups do little to crush the lawyer scheme.
Because 90% of medical malpractice claims fail and are found for the defendant, they are a scam. After the second failed medical malpractice claim, the lawyer should be declared a vexatious litigator. He should submit all future claims for prior review to a medical expert judge, using a medical expert working for the court before being allowed to file it. Costs go to the vexatious litigator.
There is something worse than the cost of the medical malpractice scam, and its resulting much higher cost of defensive medicine scam enriching the health system. Medical malpractice can shut down a practitioner or a health entity. They have a duty to survive to serve the public. So they cover up the investigations of the 300000 deaths by medical error. Multiply by 10 for the number of serious, painful, costly injuries. These continue unchanged by the medical malpractice racket of the lawyer and of the medical professions. From air crash investigations, bad outcomes are now understood to be caused by many factors coming together in one place and one time, often a dozen things going wrong. Avoid one, and the entire catastrophe can be avoided. The many factors should be investigated, published, and remedied. The content of this procedure should be excluded from discovery. This immunization of investigations will motivate health entities to rush to find what went wrong. Publish it so others may learn from it. Be as complete as possible to immunize the facts from litigation discovery.
1) The lawyer claims the contingency fee provides greater access to the courts and to justice for poor people. It developed as plaintiffs got compensation and refused to pay their lawyers. By agreement, the plaintiff lawyer gets the payment, subtracts all expenses, takes a contingency fee, and pays the plaintiff the remaining crumbs. Contingency fees are a collection tool, not greater access to justice. It should be a subject of discovery. Did the plaintiff lawyer inform the plaintiff that in the absence of a physical injury, the entire amount of the settlement is taxable as income? That is reviewed by the IRS here. That means, paying the income tax on the full $million verdict. That is true even though the lawyer deducted expenses and his contingency fee. Not only may the plaintiff end up with nothing, but may have to borrow money to pay the tax on the verdict after paying the plaintiff lawyer.
2) If the lawsuit is covered by insurance, the company will provide a lawyer. The defendant must hire a lawyer malpractice lawyer to terrorize the insurance company defense lawyer. That lawyer is paid very little. He has to go to trial to make more. His loyalty is to the employer, so he can be hired again. His economic interest is to put the defendant through a trial. Professional responsibility rules require his entire duty be to the defendant. He is also required to provide zealous representation. Zealous means to assert every legal right, including motions to dismiss a case without merit at the outset. Don’t count on professional responsibility overcoming the economic self interest of the defense lawyer.
3) The litigation privilege precludes reporting or litigating any content of the lawsuit. What people say in a lawsuit is protected from liability. That includes reports, depositions, and various communications about the lawsuit matter. The litigation privilege is reviewed here. However, there are remedies inside the trial, by the judge. For example, an expert says he reviewed these records prior to forming an opinion. He has not reviewed these records. He has perjured himself. Move that the judge declare a mistrial and assess all legal costs to the assets of the expert. Submitted resumes are part of sworn statements. If there are inaccuracies, they should be treated as perjury as well, before the judge. The defendant has a lot of knowledge that the defense lawyer may not have. He should go through the statements carefully, ask for a motion that wrong statements be treated as perjury by the judge.
4) Some licensed defendants are mandated reporters of professional misconduct and problems by licensed professionals. If a plaintiff expert is over the age of 60, it is still appropriate to ask a licensing board to review the cognitive ability of the expert and any other impairment affecting the ability to practice. Intemperate statements may result from mood disorders, substance abuse, including caffeinism. The plaintiff expert should be questioned about these brain health habits. Report one complaint at a time to keep the plaintiff expert and other licensed plaintiff participants and witnesses under investigation. This reporting is mandatory under the licensing act of the state, and legally protected. Any agreement to not disclose or to not disparage the plaintiff side does not absolve the defendant of this reporting requirement. It is a matter of policy that agreements may not violate a law. Failure to report by the defendant may result in big fines and other sanctions.
5) Lawyers are mandated reporters of lawyer misconduct (Rule 8.3). Partners in a law firm must stop misconduct ( Rule 5.1). If a plaintiff lawyer engaged in any violation of the Rules of Conduct, report the lawyer to the Disciplinary Counsel of that jurisdiction. Cite the number of the Rule. Then report every partner of the law firm for failure to stop the misconduct. Report every associate of the firm for failure to report the misconduct. Report the judge for failure to report the lawyer misconduct. Report any evidence of impairment of the judge to the Judicial Review Board. Request an assessment of the impairment. These regulatory bodies dismiss almost all reports, however extreme they may be. They themselves are a scam, The lawyer and judge regulators should be reported for taking tax money and not doing any work for it to the local federal prosecutor (honest service fraud, a federal crime). If a defendant has a license, there is a mandated duty to report professional misconduct.
6) Try to force getting dropped from the case if another defendant has decided to settle. If a defendant party decides to settle to avoid a trial, the other defendants may force them to go to trial anyway. That should be done by the defense lawyer. If they refuse to communicate with the other defense lawyers about keeping them in the case, and forcing them to go to trial the defendant may communicate with the other defendants. This is against all advice of the defense lawyer. If the lawyer is adamant, tell him to do it himself or else he is providing inadequate representation. This is from a rule of civil procedure, "A release by the injured person of one joint tort feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid." Then, " The conduct of all defendants against whom the case is proven must be considered in order for comparative fault to be assessed and apportioned." The plaintiff wants the big money. The other defendant wants out of the case. The way that can happen is to drop the defendant from the case.
7) Demand all the clinical records of the plaintiff experts in the subject of the lawsuit. See how the expert managed similar cases. If the expert does not have a large number of similar cases, try to disqualify the expert. Nitpick the records of the plaintiff expert especially if the decisions were similar to those of the defendant.
8) Review the list of cognitive biases and of fallacies. Defendants have Fifth Amendment Procedural Due Process rights. Any bias or commission of a fallacy in a lawsuit should get the claim dismissed. The common one in medical malpractice claims is the Outcome Bias. Defense experts read a case. All the facts stayed the same. In one group, the outcome was good. In the other, the outcome was catastrophic. Even defense experts tended to find malpractice when the outcome was bad reading the same facts of the case.
9) It is against policy to reward a crime by the plaintiff with a torts settlement. Any violation of the law by the plaintiff should result in a motion to dismiss. Unclean hands is reviewed here. It is also a policy from case law to not reward a plaintiff who has committed a crime. A doctor died from an overdose of pain drugs he stole from patients. The estate won $6 million from the hospital. That judgement was reversed because stealing pain drugs is a crime. Contributory negligence is plaintiff behavior that was a cause of his injury, for example, smoking.
10) I suggest reading this brief article by Andrew Schlafly, as well. It makes other points. Attend the deposition of the plaintiff experts. The defendant is an expert. Help the defense lawyer formulate informed questions. Make a list of questions ahead of time, and require that the defense lawyer include all of them. Document diagnostic test requests, since most lawsuits are from failure to diagnose. Depose all plaintiff witnesses. Protect assets before litigation. Any avoidance scheme after the litigation has started will be deemed as fraudulent.
11) Andrew Schlafly mentions screening litigious patients. I do not know how to do that. I propose a Plaintiffax, like Carfax. It would scrape the dockets of every county in the state. It would list all plaintiff lawyers, all plaintiffs, all plaintiff experts. Use it like the Carfax report.
I know that if a doctor group has 4 or 5 lawsuits, the doctors are very upset. A small business, grossing $5 million a year, will have 400 lawsuits every day. As one is settled or dropped, another comes in. Doctors are quite privileged.
