It is amazing that in 2012, occasionally you still may hear the comment that American’s are law suit happy, or that physicians are being chased out of the state of Michigan by frivolous Malpractice lawsuits.
Nothing could be farther from the truth. Recently, in Michigan, hearings were held before the Senate Insurance Committee,on legislation proposed by a physician politician, that would essentially have finally stripped the citizens of what remaining rights they had to access the courts to redress grievances against the medical establishment. The right to a jury trial, and a jury determination of the facts has been under assault for more than a generation. And the insurance companies have been winning.
One of the speakers at the hearings was an attorney representing the organization of lawyers that defends hospitals and doctors. In other words, their own lawyer! It didn’t surprise me, because I know the lawyers I meet from the other side, are ethical positive people. What was amazing was that in a state of close to 10 Million people, with 35,000 lawyers, in the year 2010 only 800 medical malpractice lawsuits were filed!!! Statistically, this speaks volumes: obviously, thousands of injuries and deaths suffered in medical transactions find no justice.
So the question people ask when the lawyer across his desk tells them they might have a case, but he still won’t handle it is why? ” The media and the politicians tell us that frivolous lawsuits are being filed by the thousands, and you are telling me I have a genuine meritorious claim, but you still wont handle it? What gives?”
The reason is that so many barriers have been built into Medical Malpractice law in the State of Michigan, by the government and the Courts, that unless it is almost the perfect case, with huge damages, it doesn’t make basic business sense to investigate nor prosecute the case. Dozens of firms, and hundreds of lawyers that used to prosecute medical malpractice claims no longer do so. The right to a jury trail for the citizens of Michigan in medical malpractice and negligence cases have been taken away for years.
The barriers are the Caps, the Notice of Intent to File Claim, the Affidavit of Merit, and the Daubert/Davis-Frye motions. The cap puts a limit on how much a party has to pay. What ends up getting litigated in the medical malpractice case, is the litigation itself. Was the Notice of Intent correct? (Which is a real blow against the victim, because it has to be filed before any discovery in a case has taken place. This means the only evidence is the medical record, and who controls that?). Was the Affidavit of Merit correct? ( Again, filed before any discovery takes place.). Anyway, you can see how the resources of the lawyer are exhausted, as is he or she, before the case itself gets litigated.
Obviously, this is but a brief explanation of why so few cases are brought anymore ( this is being written in 2012). So don’t be surprised, or emotionally hurt, when you go to talk to a lawyer with a case you think is worth millions, and she or he says no thank you. My philosophy, is that a good case is still a good case, and we continue to offer free consultation on medical malpractice and birth injury cases.