In the comments section at Sebastian Holsclaw’s, following a long discussion of the recent Mello-Studdert study on medical malpractice, talk turns to the practice of naming every doctor in the vicinity as a defendant when filing a medical liability claim. A couple of trial lawyer advocates defend that unsavory practice, and Holsclaw responds (via Rovito):
The problem is that extraneous defendants are often not dropped quickly. In many complex cases you can’t possibly get through the discovery phases without plunking down huge amounts of money. Maybe I’ve just been remarkably unlucky, but when I’ve worked on the defense side the vast majority of cases involved defending people who were just tack-on defendants. In all of these cases $30-60,000 (in fees) was spent before the defendants could get out of the case. Often an additional sum (usually in the $5-10,000 range) was paid to stop the bleeding even though everyone (including/especially the plaintiff’s attorney) that the defendant would never be found liable. One plaintiff’s attorney was well known to push for largish settlements from innocent parties — if you refused he would drag you until the day of trial (throwing up just enough smoke to avoid summary judgment) and then drop you without comment on the morning of the trial (after you had incurred all the expense of expert retention, expert testing and all of the trial preparation). It is the kind of thing that gives lawyers a bad name, but it happens in every city.
(cross-posted from Point of Law).
6 Comments
While I’d never argue in favor of adding defendants you know are not responsible, however, in the medical malpractice realm it’s hard to know exactly who did what until the discovery is done. And if any doctor (nurse, etc) is left out, all of the blame from the other defendants are heaped on him or her. And lastly, in my state, there is only a 6 month statute of limitations. Thus, you won’t have time to add defendants later, so you’re forced to add everyone at first.
My state has proposed an interesting solution. Basically it’s mandated arbitration with no attorneys allowed on either side. They’re calling it a no-fault system. But of course because it hurts both sides, plaintiff and defense attorneys, it’ll never pass.
I think medical malpractice is ideally suited for non-jury determinations due to the complexity of the issues. Hopefully the idea won’t go away.
Wow.
Ima Fish just nailed something, just in passing, I think:
“But of course because it hurts both sides, plaintiff and defense attorneys, it’ll never pass.”
“both sides” = “plaintiff and defense ATTORNEYS”
I mean, I knew that (from their perspectiv), and I realize that’s basically how the system works, but it still struck me when it was just tossed in so nonchalantly.
Sad, but true.
Excellent point Deoxy.
Who gives a crap about the innocent doctors sucked into these blamegame scams . . . or the money they/their insurance companies spend defending their name/honor?
Never mind that the money ultimately comes out of patients’ pockets.
Fraudulent claims should result in disbarment and financial penalties.
Like that’s going to happen.
Most politicians get their start as lawyers.
This would be cured by a proper loser pays rule.